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sc_declarationuncon	C	What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules. DAVIS v. MICHIGAN DEPARTMENT OF THE TREASURY No. 87-1020. Argued January 9, 1989 Decided March 28, 1989 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Marshall, Blackmun, O’Connor, and Scalia, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 818. Paul S. Davis, pro se, argued the cause and filed briefs for appellant. Michael K. Kellogg argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Rose, Deputy Solicitor General Merrill, David English Car-mack, and Steven W. Parks. Thomas L. Casey, Assistant Solicitor General of Michigan, argued the cause for appellee. With him on the brief were Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Richard R. Roesch and Ross H. Bishop, Assistant Attorneys General. Joseph B. Scott and Michael J. Kotor filed a brief for the National Association of Retired Federal Employees as amicus curiae urging reversal. Justice Kennedy delivered the opinion of the Court. The State of Michigan exempts from taxation all retirement benefits paid by the State or its political subdivisions, but levies an income tax on retirement benefits paid by all other employers, including the Federal Government. The question presented by this case is whether Michigan’s tax scheme violates federal law. I Appellant Paul S. Davis, a Michigan resident, is a former employee of the United States Government. He receives retirement benefits pursuant to the Civil Service Retirement Act, 5 U. S. C. §8831 et seq. In each of the years 1979 through 1984, appellant paid Michigan state income tax on his federal retirement benefits in accordance with Mich. Comp. Laws Ann. §206.30(l)(f) (Supp. 1988). That statute defines taxable income in a manner that excludes all retirement benefits received from the State or its political subdivisions, but includes most other forms of retirement benefits. The effect of this definition is that the retirement benefits of retired state employees are exempt from state taxation while the benefits received by retired federal employees are not. In 1984, appellant petitioned for refunds of state taxes paid on his federal retirement benefits between 1979 and 1983. After his request was denied, appellant filed suit in the Michigan Court of Claims. Appellant’s complaint, which was amended to include the 1984 tax year, averred that his federal retirement benefits were “not legally taxable under the Michigan Income Tax Law” and that the State’s inconsistent treatment of state and federal retirement benefits discriminated against federal retirees in violation of 4 U. S. C. § 111, which preserves federal employees’ immunity from discriminatory state taxation. See Public Salary Tax Act of 1939, ch. 59, §4, 53 Stat. 575, codified, as amended, at 4 U. S. C. § 111. The Court of Claims, however, denied relief. No. 84-9451 (Oct. 30, 1985), App. to Juris. Statement A10. The Michigan Court of Appeals affirmed. 160 Mich. App. 98, 408 N. W. 2d 433 (1987). The court first rejected appellant’s claim that 4 U. S. C. § 111 invalidated the State’s tax on appellant’s federal benefits. Noting that §111 applies only to federal “employees,” the court determined that appellant’s status under federal law was that of an “annuitant” rather than an employee. As a consequence, the court concluded that § 111 “has no application to [Davis], since [he] cannot be considered an employee within the meaning of that act.” Id., at 104, 408 N. W. 2d, at 435. The Michigan Court of Appeals next rejected appellant’s contention that the doctrine of intergovernmental tax immunity rendered the State’s tax treatment of federal retirement benefits unconstitutional. Conceding that “a tax may be held invalid ... if it operates to discriminate against the federal government and those with whom it deals,” id., at 104, 408 N. W. 2d, at 436, the court examined the State’s justifications for the discrimination under a rational-basis test. Ibid. The court determined that the State’s interest in “attracting and retaining . . . qualified employees” was a “legitimate state objective which is rationally achieved by a retirement plan offering economic inducements,” and it upheld the statute. Id., at 105, 408 N. W. 2d, at 436. The Supreme Court of Michigan denied appellant’s application for leave to appeal. 429 Mich. 854 (1987). We noted probable jurisdiction. 487 U. S. 1217 (1988). II Appellant places principal reliance on 4 U. S. C. § 111. In relevant part, that section provides: “The United States consents to the taxation' of pay or compensation for personal service as an officer or employee of the United States ... by a duly constituted taxing authority having jurisdiction, if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation.” As a threshold matter, the State argues that § 111 applies only to current employees of the Federal Government, not to retirees such as appellant. In our view, however, the plain language of the statute dictates the opposite conclusion. Section 111 by its terms applies to “the taxation of pay or compensation for personal services as an officer or employee of the United States.” (Emphasis added). While retirement pay is not actually disbursed during the time an individual is working for the Government, the amount of benefits to be received in retirement is based and computed upon the individual’s salary and years of service. 5 U. S. C. § 8339(a). We have no difficulty concluding that civil service retirement benefits are deferred compensation for past years of service rendered to the Government. See, e. g., Zucker v. United States, 758 F. 2d 637, 639 (CA Fed.), cert. denied, 474 U. S. 842 (1985); Kizas v. Webster, 227 U. S. App. D. C. 327, 339, 707 F. 2d 524, 536, (1983), cert. denied, 464 U. S. 1042 (1984); Clark v. United States, 691 F. 2d 837, 842 (CA7 1982). And because these benefits accrue to employees on account of their service to the Government, they fall squarely within the category of compensation for services rendered “as an officer or employee of the United States.” Appellant’s federal retirement benefits are deferred compensation earned “as” a federal employee, and so are subject to § 111. The State points out, however, that the reference to “compensation for personal services as an officer or employee” occurs in the first part of § 111, which defines the extent of Congress’ consent to state taxation, and not in the latter part of the section, which provides that the consent does not extend to taxes that discriminate against federal employees. Instead, the nondiscrimination clause speaks only in terms of “discriminat[ion] against the officer or employee because of the source of the pay or compensation.” From this the State concludes that, whatever the scope of Congress’ consent to taxation in the first portion of § 111, the nondiscrimination clause applies only to current federal employees. Although the State’s hypertechnical reading of the nondiscrimination clause is not inconsistent with the language of that provision examined in isolation, statutory language cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. See United States v. Morton, 467 U. S. 822, 828 (1984). When the first part of §111 is read together with the nondiscrimination clause, the operative words of the statute are as follows: “The United States consents to the taxation of pay or compensation ... if the taxation does not discriminate . . . because of the source of the pay or compensation.” The reference to “the pay or compensation” in the last clause of § 111 must, in context, mean the same “pay or compensation” defined in the first part of the section. Since that “pay or compensation” includes retirement benefits, the nondiscrimination clause must include them as well. Any other interpretation of the nondiscrimination clause would be implausible at best. It is difficult to imagine that Congress consented to discriminatory taxation of the pensions of retired federal civil servants while refusing to permit such taxation of current employees, and nothing in the statutory language or even in the legislative history suggests this result. While Congress could perhaps have used more precise language, the overall meaning of § 111 is unmistakable: it waives whatever immunity past and present federal employees would otherwise enjoy from state taxation of salaries, retirement benefits, and other forms of compensation paid on account of their employment with the Federal Government, except to the extent that such taxation discriminates on account of the source of the compensation. 1 — 1 HH hH Section 111 was enacted as part of the Public Salary Tax Act of 1939, the primary purpose of which was to impose federal income tax on the salaries of all state and local government employees. Prior to adoption of the Act, salaries of most government employees, both state and federal, generally were thought to be exempt from taxation by another sovereign under the doctrine of intergovernmental tax immunity. This doctrine had its genesis in McCulloch v. Maryland, 4 Wheat. 316 (1819), which held that the State of Maryland could not impose a discriminatory tax on the Bank of the United States. Chief Justice Marshall’s opinion for the Court reasoned that the Bank was an instrumentality of the Federal Government used to carry into effect the Government’s delegated powers, and taxation by the State would unconstitutionally interfere with the exercise of those powers. Id., at 425-437. For a time, McCulloch was read broadly to bar most taxation by one sovereign of the employees of another. See Collector v. Day, 11 Wall. 113, 124-128 (1871) (invalidating federal income tax on salary of state judge); Dobbins v. Com missioners of Erie County, 16 Pet. 435 (1842) (invalidating state tax on federal officer). This rule “was based on the rationale that any tax on income a party received under a contract with the government was a tax on the contract and thus a tax ‘on’ the government because it burdened the government’s power to enter into the contract.” South Carolina v. Baker, 485 U. S. 505, 518 (1988). In subsequent cases, however, the Court began to turn away from its more expansive applications of the immunity doctrine. Thus, in Helvering v. Gerhardt, 304 U. S. 405 (1938), the Court held that the Federal Government could levy nondiscriminatory taxes on the incomes of most state employees. The following year, Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 486-487 (1939), overruled the Day-Dobbins line of cases that had exempted government employees from nondiscriminatory taxation. After Graves, therefore, intergovernmental tax immunity barred only those taxes that were imposed directly on one sovereign by the other or that discriminated against a sovereign or those with whom it dealt. It was in the midst of this judicial revision of the immunity doctrine that Congress decided to extend the federal income tax to state and local government employees. The Public Salary Tax Act was enacted after Helvering v. Gerhardt, supra, had upheld the imposition of federal income taxes on state civil servants, and Congress relied on that decision as support for its broad assertion of federal taxing authority. S. Rep. No. 112, 76th Cong., 1st Sess., 5-9 (1939); H. R. Rep. No. 26, 76th Cong., 1st Sess., 2-3 (1939). However, the Act was drafted, considered in Committee, and passed by the House of Representatives before the announcement of the decision in Graves v. New York ex rel. O’Keefe, supra, which for the first time permitted state taxation of federal employees. As a result, during most of the legislative process leading to adoption of the Act it was unclear whether state taxation of federal employees was still barred by intergovernmental tax immunity despite the abrogation of state employees’ immunity from federal taxation. See H. R. Rep. No. 26, swpra, at 2 (“There are certain indications in the case of McCulloch v. Maryland, 4 Wheat. 316 (1819), . . . that . . . Federal officers and employees may not, without the consent of the United States, be subjected to income taxation under the authority of the various States”). Dissatisfied with this uncertain state of affairs, and concerned that considerations of fairness demanded equal tax treatment for state and federal employees, Congress decided to ensure that federal employees would not remain immune from state taxation at the same time that state government employees were being required to pay federal income taxes. See S. Rep. No. 112, supra, at 4; H. R. Rep. No. 26, supra, at 2. Accordingly, §4 of the proposed Act (now §111) expressly waived whatever immunity would have otherwise shielded federal employees from nondiscriminatory state taxes. By the time the statute was enacted, of course, the decision in Graves had been announced, so the constitutional immunity doctrine no longer proscribed nondiscriminatory state taxation of federal employees. In effect, § 111 simply codified the result in Graves and foreclosed the possibility that subsequent judicial reconsideration of that case might reestablish the broader interpretation of the immunity doctrine. Section 111 did not waive all aspects of intergovernmental tax immunity, however. The final clause of the section contains an exception for state taxes that discriminate against federal employees on the basis of the source of their compensation. This nondiscrimination clause closely parallels the nondiscrimination component of the constitutional immunity doctrine which has, from the time of McCulloch v. Maryland, barred taxes that “operat[e] so as to discriminate against the Government or those with whom it deals.” United States v. City of Detroit, 355 U. S. 466, 473 (1958). See also McCulloch v. Maryland, supra, at 436-437; Miller v. Milwaukee, 272 U. S. 713, 714-715 (1927); Helvering v. Gerhardt, supra, at 413; Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S. 376, 385 (1960); Memphis Bank & Trust Co. v. Gamer, 459 U. S. 392, 397, and n. 7 (1983). In view of the similarity of language and purpose between the constitutional principle of nondiscrimination and the statutory nondiscrimination clause, and given that § 111 was consciously drafted against the background of the Court’s tax immunity cases, it is reasonable to conclude that Congress drew upon the constitutional doctrine in defining the scope of the immunity retained in § 111. When Congress codifies a judicially defined concept, it is presumed, absent an express statement to the contrary, that Congress intended to adopt the interpretation placed on that concept by the courts. See Midlantic National Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494, 501 (1986); Morissette v. United States, 342 U. S. 246, 263 (1952). Hence, we conclude that the retention of immunity in § 111 is coextensive with the prohibition against discriminatory taxes embodied in the modern constitutional doctrine of intergovernmental tax immunity. Cf. Memphis Bank & Trust, supra, at 396-397 (construing 31 U. S. C. §742, which permits only ‘“nondiscriminatory’” state taxation of interest on federal obligations, as “principally a restatement of the constitutional rule”). On its face, § 111 purports to be nothing more than a partial congressional consent to nondiscriminatory state taxation of federal employees. It can be argued, however, that by negative implication §111 also constitutes an affirmative statutory grant of immunity from discriminatory state taxation in addition to, and coextensive with, the pre-existing protection afforded by the constitutional doctrine. Regardless of whether § 111 provides an independent basis for finding immunity or merely preserves the traditional constitutional prohibition against discriminatory taxes, however, the inquiry is the same. In either case, the scope of the immunity granted or retained by the nondiscrimination clause is to be determined by reference to the constitutional doctrine. Thus, the dispositive question in this case is whether the tax imposed on appellant is barred by the doctrine of intergovernmental tax immunity. IV It is undisputed that Michigan’s tax system discriminates in favor of retired state employees and against retired federal employees. The State argues, however, that appellant is not entitled to claim the protection of the immunity doctrine, and that in any event the State’s inconsistent treatment of Federal and State Government retirees is justified by meaningful differences between the two classes. A In support of its first contention, the State points out that the purpose of the immunity doctrine is to protect governments and not private entities or individuals. As a result, so long as the challenged tax does not interfere with the Federal Government’s ability to perform its governmental functions, the constitutional doctrine has not been violated. It is true that intergovernmental tax immunity is based on the need to protect each sovereign’s governmental operations from undue interference by the other. Graves, 306 U. S., at 481; McCulloch v. Maryland, 4 Wheat., at 435-436. But it does not follow that private entities or individuals who are subjected to discriminatory taxation on account of their dealings with a sovereign cannot themselves receive the protection of the constitutional doctrine. Indeed, all precedent is to the contrary. In Phillips Chemical Co., supra, for example, we considered a private corporation’s claim that a state tax discriminated against private lessees of federal land. We concluded that the tax “discriminate[d] unconstitutionally against the United States and its lessee,” and accordingly held that the tax could not be exacted. Id., at 387 (emphasis added). See also Memphis Bank & Trust, supra; Moses Lake Homes, Inc. v. Grant County, 365 U. S. 744 (1961); Collector v. Day, 11 Wall. 113 (1871); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842). The State offers no reasons for departing from this settled rule, and we decline to do so. B Under our precedents, “[t]he imposition of a heavier tax burden on [those who deal with one sovereign] than is imposed on [those who deal with the other] must be justified by significant differences between the two classes.” Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S., at 383. In determining whether this standard of justification has been met, it is inappropriate to rely solely on the mode of analysis developed in our equal protection cases. We have previously observed that “our decisions in [the equal protection] field are not necessarily controlling where problems of intergovernmental tax immunity are involved,” because “the Government’s interests must be weighed in the balance.” Id., at 385. Instead, the relevant inquiry is whether the inconsistent tax treatment is directly related to, and justified by, “significant differences between the two classes.” Id., at 383-385. The State points to two allegedly significant differences between federal and state retirees. First, the State suggests that its interest in hiring and retaining qualified civil servants through the inducement of a tax exemption for retirement benefits is sufficient to justify the preferential treatment of its retired employees. This argument is wholly beside the point, however, for it does nothing to demonstrate that there are “significant differences between the two classes” themselves; rather, it merely demonstrates that the State has a rational reason for discriminating between two similar groups of retirees. The State’s interest in adopting the discriminatory tax, no matter how substantial, is simply irrelevant to an inquiry into the nature of the two classes receiving inconsistent treatment. See id., at 384. Second, the State argues that its retirement benefits are significantly less munificent than those offered by the Federal Government, in terms of vesting requirements, rate of accrual, and computation of benefit amounts. The substantial differences in the value of the retirement benefits paid the two classes should, in the State’s view, justify the inconsistent tax treatment. Even assuming the State’s estimate of the relative value of state and federal retirement benefits is generally correct, we do not believe this difference suffices to justify the type of blanket exemption at issue in this case. While the average retired federal civil servant receives a larger pension than his state counterpart, there are undoubtedly many individual instances in which the opposite holds true. A tax exemption truly intended to account for differences in retirement benefits would not discriminate on the basis of the source of those benefits, as Michigan’s statute does; rather, it would discriminate on the basis of the amount of benefits received by individual retirees. Cf. Phillips Chemical Co., supra, at 384-385 (rejecting proffered rationale for State’s unfavorable tax treatment of lessees of federal property, because an evenhanded application of the rationale would have resulted in inclusion of some lessees of state property in the disfavored class as well). V For these reasons, we conclude that the Michigan Income Tax Act violates principles of intergovernmental tax immunity by favoring retired state and local government employees over retired federal employees. The State having conceded that a refund is appropriate in these circumstances, see Brief for Appellee 63, to the extent appellant has paid taxes pursuant to this invalid tax scheme, he is entitled to a refund. See Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 247 (1931). Appellant also seeks prospective relief from discriminatory taxation. With respect to this claim, however, we are not in the best position to ascertain the appropriate remedy. While invalidation of Michigan’s income tax law in its entirety obviously would eliminate the constitutional violation, the Constitution does not require such a drastic solution. We have recognized, in cases involving invalid classifications in the distribution of government benefits, that the appropriate remedy “is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.” Heckler v. Mathews, 465 U. S. 728, 740 (1984). See Iowa-Des Moines National Bank, supra, at 247; see also Welsh v. United States, 398 U. S. 333, 361 (1970) (Harlan, J., concurring in judgment). In this case, appellant’s claim could be resolved either by extending the tax exemption to retired federal employees (or to all retired employees), or by eliminating the exemption for retired state and local government employees. The latter approach, of course, could be construed as the direct imposition of a state tax, a remedy beyond the power of a federal court. See Moses Lake Homes, Inc. v. Grant County, 365 U. S., at 752 (“Federal courts may not assess or levy taxes”). The permissibility of either approach, moreover, depends in part on the severability of a portion of §206.30(l)(f) from the remainder of the Michigan Income Tax Act, a question of state law within the special expertise of the Michigan courts. See Louis K. Liggett Co. v. Lee, 288 U. S. 517, 540-541 (1933). It follows that the Michigan courts are in the best position to determine how to comply with the mandate of equal treatment. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. As a result of a series of amendments, this subsection has been variously designated as (l)(f), (l)(g), and (l)(h) at times relevant to this litigation. This opinion will refer only to the current statutory designation, §206.30(l)(f). In pertinent part, the statute provides: “(1) ‘Taxable income’. . . means adjusted gross income as defined in the internal revenue code subject to the following adjustments: “(f) Deduct to the extent included in adjusted gross income: “(i) Retirement or pension benefits received from a public retirement system of or created by an act of this state or a political subdivision of this state. “(iv) Retirement or pension benefits from any other retirement or pension system as follows: “(A) For a single return, the sum of not more than $7,500.00. “(B) For a joint return, the sum of not more than $10,000.00.” Mich. Comp. Laws Ann. § 206.30(l)(f) (Supp. 1988). Subsection (f)(iv) of this provision exempts a portion of otherwise taxable retirement benefits from taxable income, but appellant’s retirement pay from all nonstate sources exceeded the applicable exemption amount in each of the tax years relevant to this case. The State suggests that the legislative history does not support this interpretation of § 111, pointing to statements in the Committee Reports that describe the scope of § 111 without using the phrase “service as an officer or employee.” The language of the statute leaves no room for doubt on this point, however, so the State’s attempt to establish a minor inconsistency with the legislative history need not detain us. Legislative history is irrelevant to the interpretation of an unambiguous statute. United Air Lines, Inc. v. McMann, 434 U. S. 192, 199 (1977). The dissent argues that this tax is nondiscriminatory, and thus constitutional, because it “draws no distinction between the federal employees or retirees and the vast majority of voters in the State.” Post, at 823. In Phillips Chemical Co., however, we faced that precise situation: an equal tax burden was imposed on lessees of private, tax-exempt property and lessees of federal property, while lessees of state property paid a lesser tax, or in some circumstances none at all. Although we concluded that “[ujnder these circumstances, there appears to be no discrimination between the Government’s lessees and lessees of private property,” 361 U. S., at 381, we nonetheless invalidated the State’s tax. This result is consistent with the underlying rationale for the doctrine of intergovernmental tax immunity. The danger that a State is engaging in impermissible discrimination against the Federal Government is greatest when the State acts to benefit itself and those in privity with it. As we observed in Phillips Chemical Co., “it does not seem too much to require that the State treat those who deal with the Government as well as it treats those with whom it deals itself.” Id.., at 385. We also take issue with the dissent’s assertion that “it is peculiarly inappropriate to focus solely on the treatment of state governmental employees” because “[t]he State may always compensate in pay or salary for what it assesses in taxes.” Post, at 824. In order to provide the same after-tax benefits to all retired state employees by means of increased salaries or benefit payments instead of a tax exemption, the State would have to increase its outlays by more than the cost of the current tax exemption, since the increased payments to retirees would result in higher federal income tax payments in some circumstances. This fact serves to illustrate the impact on the Federal Government of the State’s discriminatory tax exemption for state retirees. Taxes enacted to reduce the State’s employment costs at the expense of the federal treasury are the type of discriminatory legislation that the doctrine of intergovernmental tax immunity is intended to bar. Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance? A. No declaration of unconstitutionality B. Act of Congress declared unconstitutional C. State or territorial law, regulation, or constitutional provision unconstitutional D. Municipal or other local ordinance unconstitutional 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. MILO COMMUNITY HOSPITAL, etc., Plaintiff-Appellant, v. Caspar W. WEINBERGER et al., Defendants-Appellees. No. 75-1205. United States Court of Appeals, First Circuit. Argued Sept. 10, 1975. Decided Nov. 14, 1975. Joseph J. Bichrest, Greenville, Me., for appellant. Lawrence E. Burstein, Asst. Regional Atty., Region I, United States Dept, of Health, Education and Welfare of Boston Mass., with whom Peter Mills, U. S. Atty., Portland, Me., was on brief, for appellee. Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and THOMSEN', Senior District Judge. Of the District of Maryland, sitting by designation. COFFIN, Chief Judge. The Milo Community Hospital, a sixteen bed private non-profit hospital in Milo, Maine, brought suit in the district court to enjoin defendant Secretary of Health, Education, and Welfare and other relevant officials (HEW) from terminating its federally assisted status as a “provider of services” under Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (the Medicare Act). The hospital attacked HEW s decision in two counts of its complaint: in Count One it alleged that HEW had not prepared and issued an Environmental Impact Statement in compliance with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA); in Count Two it charged that the termination was arbitrary, capricious, and a denial of equal protection. Jurisdictional grounds asserted were 42 U.S.C. § 4332(2)(C); 5 U.S.C. §§ 702 and 706; and 28 U.S.C. §§ 1331, 1343, and 1361. Defendants denied jurisdiction under both counts and generally admitted the factual allegations. They further answered, as to Count One, that the decertification of a provider under the Medicare Act is controlled by statute and regulation and is not a “major Federal action significantly affecting the quality of the human environment” under NEPA; and, as to Count Two, that the hospital had failed to exhaust its administrative remedies. From a judgment in favor of defendants, entered after hearing by the court, the hospital appeals. The relevant factual background is the following. Appellant has been authorized to furnish federally compensable Medicare services as a “provider of services”, as the term is defined in 42 U.S.C. § 1395X. In October, 1973, the Bureau of Health Insurance of the Social Security Administration notified the hospital of a number of respects in which its facilities failed to comply with the 1967 edition of the National Fire Protection Association’s Life Safety Code, the relevant set of standards made applicable by 20 C.F.R. 405.1022(b). After a year of discussion, rectification of some deficiencies, and extensions of time for the hospital to submit an acceptable plan of correction, the Bureau, in November, 1974, issued its formal letter, notifying the hospital that, as of December 13, 1974, its Medicare provider agreement would be terminated. The hospital was advised that, if the Medicare program requirements were met in the future, it could request re-establishment of its eligibility to participate as a provider. It was further advised of its rights to request and have a hearing before an administrative law judge within six months. While the hospital sought, and was denied, reconsideration, it did not seek administrative review of the Bureau’s action, but brought this suit. During the same period, the Bureau had advised two other small hospitals in nearby towns of their failure to comply with the Life Safety Code. One, in Dexter, was terminated as a provider in December, 1974. The other, in Dover-Fox-croft, was allowed, subject to correcting certain deficiencies, to continue as a provider, pending construction of a new regional hospital in the same town — a project in which Dover-Foxcroft and several other communities had voted to participate and for which a firm time schedule had been determined. The town of Milo voted twice not to join the new Hospital Administrative District, the second occasion of such vote being in December, 1974, at which time Milo also voted to appropriate $390,000 for new hospital facilities and to raise $150,000 by a fund drive. As of March 5, 1975, the date of hearing before the district court, no firm plan for construction and financing had been submitted. The district court found that termination of the hospital’s provider status would force it to close, causing Milo patients to travel 13 miles to Dover-Fox-croft or 32 miles to Bangor. In addition to the deprivation of local hospital facilities, the town would lose some $170,000 in annual hospital payroll and $30,000 in annual local purchases. Established by stipulation were the facts that HEW had not filed an Environmental Impact Statement (EIS) and, indeed, that its position has always been that 42 U.S.C. § 4332(2)(C) of the National Environmental Protection Act was not applicable to certification and decertification decisions under the Medicare Act. The district court held that it had jurisdiction, that — as to Count One— HEW was not required to file an EIS before terminating the hospital’s provider status, and — as to Count Two — that the hospital was not entitled to judicial review since administrative remedies had not been exhausted. The court added, although unnecessary to its decision, that it found no merit in the claims of arbitrariness and denial of equal protection. Since the decision of the district court, the Supreme Court has spoken most relevantly to the jurisdictional issues in the present case. In Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522, 1975, the widow of a deceased wage earner was denied certain insurance benefits because she had been the decedent’s wife less than the nine months required by 42 U.S.C. § 416(C) for entitlement to benefits. After seeking and being refused reconsideration, she brought suit in district court, challenging the constitutionality of the statute. The Court held that the first two sentences of 42 U.S.C. § 405(h) “prevent review of decisions of the Secretary save as provided in the Act, which provision is made in § 405(g).” 422 U.S. at 757, 95 S.Ct. at 2463. In this case it would seem irrelevant to analyze each of the heads of jurisdiction alleged by appellant. Some, such as 28 U.S.C. § 1331, are clearly not available. But whether other bases of jurisdiction are present or not, § 405(g) is both a source of jurisdiction and a limitation on its exercise. Section 405(g) sets forth the procedure to be followed in obtaining judicial review of the Secretary’s decision. It commences with the words, “Any individual, after any final decision of the Secretary made after a hearing . . . may obtain a review of such decision by a civil action . . . .” The Supreme Court in Salfi variously characterized this requirement as “central to the requisite grant of subject matter jurisdiction”, id. at 764, 95 S.Ct. at 2466, “a statutorily specified jurisdictional prerequisite”, id at 766, 95 S.Ct. at 2467, “something more than simply a codification of the judicially developed doctrine of exhaustion”, loc. cit., but “not precisely analogous to the more classical jurisdictional requirements . ■. . as [28 U.S.C.] 1331 and 1332.” Loc. cit. It is not made inapplicable by reason of a constitutional challenge, beyond the power of the Secretary to take remedial action. The requirement, however, is not jurisdictional in an inflexible sense, as Mr. Justice Brennan noted in dissent, id. at 799, 95 S.Ct. 2457, since the Secretary may “determin[e] in particular cases that full exhaustion of internal review procedures is not necessary for a decision to be ‘final’ within the language of § 405(g).” Id. at 767, 95 S.Ct. at 2467. In Salfi, despite a defense of failure to exhaust contained in a motion submitted to the district court, the Court noted that the Secretary was not raising on appeal any challenge to the sufficiency of the allegations of exhaustion in the complaint and interpreted that action to be a “determination by him that for the purposes of this litigation the reconsideration determination is ‘final’.” Id. at 767, 95 S.Ct. at 2468. In the case at bar there is no question but that HEW has consistently raised and argued non-exhaustion as to Count Two both in the district court and before us. The district court was clearly correct in its holding that appellant could not claim judicial review of its due process and equal protection claims. HEW’s stance as to Count One is much less forthright. Although the answer began with a blanket denial of jurisdiction, Count One flatly asserted, by way of a detailed additional answer, the inapplicability of NEPA. This approach was in marked contrast to the answer to Count Two, where a detailed additional answer affirmatively raised the issue of non-exhaustion. In addition, the case was tried to the district court on the theory that it could reach the merits on Count One although not on Count Two. And the court noted the stipulation that it had always been HEW’s position that decertification decisions were not subject to NEPA’s requirements. It was not until the appeal, subsequent to the decision in Salfi, that HEW argued that § 405(g) bars judicial review of all issues in the case. Understandable though HEW’s change of mind might be, having the benefit of the Court’s strictures as to the sweep of § 405(g), we cannot avoid the conclusion that, for purposes of the trial below, the Secretary through his counsel, had made a determination that his refusal to reconsider his decision that no Environmental Impact Statement need accompany a decertification action was “final”. We arrive at this conclusion reluctantly. We would prefer not to decide the NEPA issue on the merits but defer decision until a case appears where full administrative review has been had. The deliberations of an administrative law judge and an Appeals Council could not fail to provide both a deeper perspective and more thorough consideration than are permitted a court, which can be concerned only with legal error. Appellant, however, deliberately refused to follow the course of administrative review and, HEW having effectively determined in this case that exhaustion would not be necessary, we must decide the merits. We decide on as narrow a ground as possible. We need not decide whether an Environmental Impact Statement will ever be required before a decertification decision is made. We do not exclude the possibility that such a decision might have a sufficient environmental impact to constitute a major federal action significantly affecting the quality of the environment, and we decline to consider whether environmental considerations would be irrelevant to all decertification decisions. Here we decide only that the Secretary did not err in failing to prepare an Environmental Impact Statement because, under the circumstances of this case, consideration of the factors that the appellant has characterized as “environmental considerations” could not have changed the Secretary’s decision. Appellant’s contention is that the economic consequences of closing the hospital and the resulting inconvenience and increased use of automobile transportation by Milo residents are environmental consequences that the Secretary had to weigh, via an impact statement, in reaching his decision to decertify the hospital. Accepting arguendo appellant’s characterization of these factors as “environmental considerations”, we hold that no impact statement was required because under the terms of the Medicare Act these considerations are irrelevant to a decertification determination. When the Secretary finds serious noncompliance with fire prevention requirements of the Life Safety Code, he is under a statutory duty to terminate the Provider Agreement. The kind of dislocation that-Milo Hospital alleges it will experience will accompany most termination decisions. We are certain that Congress did not intend the Secretary to have the discretion to give any weight to such consequences in arriving at a termination decision. Not only, therefore, were such factors irrelevant, but they would also be impermissible factors for the Secretary to consider in making this decision. Under these circumstances we hold that no impact statement was required. Therefore, whether or not the decertification action in this case could be said to be “major”, and whether or not the prospective social and economic impact could be said to fall within the statutory term, “quality of the human environment”, see Maryland-National Capital Park and Planning Commission v. U. S. Postal Service, 159 U.S.App.D.C. 158, 487 F.2d 1029 (1973), and Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), we hold that the decertification of a small hospital as a “provider” or services under the Medicare Act for continued non-compliance with significant fire protection provisions of the Life Safety Code is a decision which should be governed solely by that Act. Affirmed. . A provider “hospital” under this statute must be an institution which meets, in addition to requirements relating to the nature and scope of professional services, “such other requirements as the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” 42 U.S.C. § 1395x(e)(9). . While some items noticed were relatively minor, others were more basic and pervasive, such as the unprotected wood frame construction, lack of fire-stoppers in concealed spaces, lack of non-combustible interior walls and partitions, and inadequate means of egress. . Subpart O of Part 405 of the regulations governing federal health insurance for the aged and disabled, §§ 405.1501-405.1595, spell out in elaborate detail the procedures available to a provider of services wishing to contest an initial determination that it no longer qualifies. The various steps include a request for reconsideration, a hearing before an administrative law judge, and a discretionary review by an Appeals Council panel of three persons, one of whom must be from the U.S. Public Health Service. . It is the disparate treatment given to Milo and Dover-Foxcroft hospitals that gives rise to the equal protection claim. . The hospital sought to broaden the issue beyond HEW’s failure to file an EIS, by arguing that HEW had violated 42 U.S.C. § 4332(A), (B), and (D) by not pursuing an interdisciplinary approach, developing environmentally focused procedures, and exploring alternative uses of resources in its decision making process. Such contentions were not supported by the complaint or the evidence. At no time, on appeal, did the hospital attempt to invoke 42 U.S.C. § 4333, requiring internal agency review of policy and procedures in the light of NEPA. . Section 405(h) is facially applicable to determinations of the Secretary under Title II of the Social Security Act, but by 42 U.S.C. § 1395Ü is also made applicable to the present Title XVIII proceeding. So also is § 405(g) made applicable to this case by 42 U.S.C. § 1395ff(c). . The fact that the Secretary, not having been so requested, did not hold a hearing does not affect the “finality” of the decision within the meaning of § 405(g). It is clear from the statute, the regulations, and the Court’s decision in Salfi that, while an aggrieved person or institution has a right to a hearing, the holding of a hearing (which is not requested) is not a predicate to a final decision. 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:
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. HODGSON, SECRETARY OF LABOR v. LOCAL UNION 6799, UNITED STEELWORKERS OF AMERICA, AFL-CIO, et al. No. 655. Argued March 23, 1971 Decided June 14, 1971 Marshall, J., wrote the opinion of the Court, in which Burger, C. J., and Black, Douglas, Harlan, Stewart, and Blackmun, JJ., joined. Brennan, J., post, p. 341, and White, J., post, p. 343, filed dissenting opinions. Deputy Solicitor General Wallace argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Assistant Attorney General Gray, Richard B. Stone, Peter G. Nash, George T. Avery, Beate Bloch, and Cornelius S. Donoghue, Jr. Michael H. Gottesman argued the cause for respondents. With him on the brief were Bernard Kleiman, George H. Cohen, Carl Frankel, and Jerome Smith. Opinion of the. Court by Mr. Justice Marshall, announced by Mr. Justice Stewart. Petitioner, the Secretary of Labor, instituted this action under § 402 (b) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 534, 29 U. S. C. § 482 (b) , against Local 6799, United Steelworkers of America, to set aside a general election of officers conducted by the union. The lawsuit arose after Nicholas Hantzis, an unsuccessful candidate for president of the local, protested the election to both the local and international union organizations. His protest concerned several matters including the use of union facilities to prepare campaign materials for the incumbent president who was re-elected. After failing to obtain relief through the internal procedures of either union organization, Hantzis filed a complaint with the Secretary of Labor pursuant to § 402 (a) of the Act, 29 U. S. C. § 482 (a). The complaint repeated the charge that union facilities had been used to promote the candidacy of the incumbent president and raised, for the first time, an additional objection concerning a meeting-attendance requirement imposed as a condition of . candidacy for union office. . At no time during his internal union protests did Hantzis challenge the attendance requirement. Following an investigation of the complaint, the Secretary concluded that union facilities had been used improperly to aid the re-election of the incumbent president in violation of § 401 (g) of the Act, 29 U. S. C. § 481 (g). The Secretary also concluded that § 401 (e) had been violated because the meeting-attendance requirement had not been uniformly administered and because the requirement itself was not a reasonable qualification on the right of union members to hold office. Respondents were advised of these conclusions and were asked to take voluntary remedial action. When they failed to comply with the request, the Secretary brought this proceeding in the District Court for the Central District of California. The District Court held that § 401 (g) had been vio-, lated by the use of union facilities for the benefit of the incumbent president’s campaign and ordered a new election for the office of president. The District Court also held, however, that the meeting-attendance rule was reasonable and that Local 6799 had not violated § 401 (e) by imposing the rule as a qualification on candidacies for union office. ■ On appeal, the Court of Appeals for the Ninth Circuit affirmed without reaching the question whether the attendance requirement was reasonable. In the court’s view, Hantzis’ failure to challenge the requirement during his pursuit of internal union remedies precluded the Secretary from later raising the issue. The court reasoned that since the Act requires that union members protesting the conduct of elections exhaust their internal union remedies before complaining to the Secretary, Congress intended to empower the Secretary to assert only “those violations that are fairly' apparent from a member’s protest to the union . . . 426 F. 2d 969, 971. Because the case presents an important issue concerning the scope of the Secretary’s authority under the Act, we granted certiorari, 400 U. S. 940. We conclude’ that Hántzis’ failure to object to the attendance rule during pursuit of his internal union remedies bars the Secretary from later challenging the rule in a § 402 (b) action. We therefore affirm the decision of the Court of, Appeals. Section 402 (b) provides that once a member challenging an election has exhausted his internal union remedies and filed a complaint with the Secretary of Labor, the Secretary “shall investigate such complaint and, if he finds probable cause to believe that a violation of this title has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization . ...” At the outset, petitioner contends that the language of the section empowers the Secretary to investigate and litigate • any and all violations that may have affected ■the outcome of an election pnce a union member has exhausted his internal union remedies concerning any violation that occurred during that election. Emphasis is placed on the fact that the Secretary is authorized to act if his' investigation uncovers “a violation” — this, it is said, means that the Secretary is not limited to seeking redress only in respect of the claims earlier presented by the union member to his union. However, the statutory language is not so devoid , of ambiguity that it alone can bear the weight of the Secretary’s expansive view of his authority. While the words “a violation” might mean “any violation whatever, revealed by .the investigation,” the words are susceptible of other readings. In particular, they can fairly be read to mean, “any of the violations raised by the union member during his internal union election protest.” In Wirtz v. Laborers’ Union, 389 U. S. 477 (1968), this Court noted'that the range of the Secretary’s authority under § 402 (b) must be determined “by inference since there is lacking an explicit provision regarding the permissible scope of' the Secretary’s complaint,” 389 U. S., at 481. We must, therefore, examine the legislative history and statutory policies behind § 402 and the rest of the Act to decide the issue presented by this case. Examination of the relevant legislative materials reveals a clear congressional concern for the neéd to remedy abuses in union elections without departing needlessly from- the longstanding congressional policy against unnecessary governmental interference with internal union affairs, Wirtz v. Glass Bottle Blowers Assn., 389 U. S. 463, 470-471 (1968). The introduction to the Senate report accompanying the Act summarizes the general objectives of Congress: “A strong independent labor movement is a vital part of American institutions. The shocking abuses revealed by recent investigations have been confined to a few unions. The overwhelming majority are honestly and democratically run. In providing remedies for existing evils the Senate should be careful neither to undermine self-government within the labor movement nor to weaken unions in their role as the bargaining representatives of' employees.” S. Rep. No. 187, 86th Cong., 1st Sess., 5 (1959). The requirement of § 402 (a), that a union member first seek redress of alleged election violations within the union before enlisting the aid of the Secretary, was similarly designed to harmonize the need to eliminate election abuses with a desire to avoid unnecessary governmental intervention. The same Senate Report, in reference to Title IV of the Act arid to the exhaustion requirement, states: “In .filing a complaint the member must, show that he has pursued any remedies available to him within the union.and any parent body in a timely manner. This rule preserves a maximum amount of independence and self-government by giving every international union the opportunity to correct improper local elections.” Id,., at 21. Plainly Congress intended to foster a situation in which the unions themselves could remedy as many election violations as possible without the Government’s ever becoming involved. Achieving this objective would not only preserve and strengthen unions as self-regulating institutions, but also avoid unnecessary expenditure of the limited resources of the Secretary of Labor. Petitioner contends that the congressional concerns underpinning the exhaustion requirement were in fact-adequately served in this case, because the election in question was actually protested by a union member within the union, and because the union was later given á chance to remedy specific violations before being taken to court by the Secretary. In this view, it is irrelevant that Hantzis himself did not focus his election challenge on the attendance requirement when seeking internal union remedies. In sum, the Secretary urges that' § 402 (b) empowers him to act so long as a union member objects in any way to an election and so long as the union is given the opportunity to remedy voluntarily any violations that the Secretary determines may have affected the outcome of that election, regardless whether the member objected to the violations during his protest to the union. However, under petitioner’s limited, view of congressional objectives, the exhaustion requirement of § 402 (a) is left with virtually no purposé or part to play in the statutory scheme. “Exhaustion” would be accomplished given any sort of protest within the union, no matter how remote' the complaint made there from the alleged violation later litigated. The obvious purpose of an exhaustion requirement is not met when the union, during “ex-haüstion,” is given no notice of the defects to be cured. Indeed, the primary objective of the exhaustion requirement is to preserve the vitality of internal union mechanisms for resolving election disputes — mechanisms to decide complaints brought by members of the union themselves. To accept petitioner’s contention that a union member, who is aware of the facts underlying an alleged violation, need not-first protest this violation to his union before complaining to the Secretary would be needlessly to weaken union self-government. Plainly petitioner’s approach slights the interest in protecting union self-regulation and is out of harmony with the congressional' purpose reflected in § 402 (a). Of course, any interpretation of the exhaustion requirement must reflect the needs of rank and file union members — those people the requirement is designed ultimately to serve. We are not" unmindful that union members may use broad or imprecise language in framing their internal union protests and that members, will often lack .the necessary information to be aware of.the existence or scope of many election violations. Union democracy •is far too important to permit these deficiencies to foreclose relief from election violations; and in determining whether the exhaustion requirement of § 402 (a) has been satisfied, courts should impose a heavy burden on the union to show that it could not in any way discern that a member was complaining of the violation in question. But when a union member is aware of the facts supporting an alleged election violation, the member must, in some discernible. fashion, indicate to his union his dissatisfaction with those facts if he is to meet the exhaustion requirement. ' In this case, it is clear that the protesting member knew of the existence of the meeting-attendance provision and that his election protests to the local and international unions concerned matters wholly unrelated to the rule. We therefore hold that internal union remedies were not ■properly exhausted and that the Secretary was barred from litigating the claim. Given this holding, we do not reach the question whether the meeting-attendance rule itself is reasonable. The judgment is Affirmed. The United Steelworkers of America, • an international union under which Local 6799 is chartered, intervened as a party defendant. Hantzis’ written protest consisted of a letter to the International Union which purported to describe the election’s operation. Since the letter did not make specific allegations, it is difficult precisely to define Hantzis’ objections. However, in addition to his general charge that union machinery had been used to aid incumbents, Hantzis also protested several procedural matters including the methods 'used to nominate and swear in officers. . The Secretary of Labor subsequently concluded that none of these procedural matters constituted a violation of the Act. The attendance rule, which is contained in the constitution of the International Union, provides that a union member, in order to be eligible for election as a local union officer or grievance committeeman, must have attended at least one-half of the regular meetings of his local 'union for 36 months previous to the election unless union activities or working hours prevented his attendance. It is unclear from Hantzis’ complaint whether he objected to the attendance rule itself or to the way in which the rule was administered during the election. Hantzis himself qualified under the rule. This facet of the District Court’s decision is not challenged here. “Sec. 402. (a) A member of a labor organization— “(1) who has exhausted the remedies avaliable under , the constitution and bylaws of such organization and of any parent body, or “(2) who has invoked such available remedies without obtaining a final decision within three calendar months after their invocation, “may file a complaint with the Secretary within one calendar month thereafter alleging the violation of any provision of section 401 (including violation of the constitution and bylaws of the labor organization pertaining to the election and removal of officers). The challenged election shall be presumed valid pending a final decision thereon (as hereinafter provided) and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide. “(b) The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this title has occurred and has riot been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision -of the Secretary and in accordance wtih the provisions of this title and such rules and regulations as the Secretary may. prescribe. The court shalL have power to take such action as it deems.proper to preserve the assets of the labor organization. “(c) If, upon a preponderance of the-evidence after a trial upon the merits, the court finds— “(1) that an election has not been held within the time prescribed by section 401, or “(2) that the yiolation of section 401 may have affected the outcome of an election, “the court • shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in .conformity with the constitution and bylaws of the labor organization. The Secretary shall promptly certify to the court the names of the persons elected, and the court shall thereupon enter a decree declaring such persons to be the officers of the labor organization. If the proceeding is for the removal of officers .pursuant to subsection (h) of section 401, the Secretary shall certify the results of the vote and the court shall enter a decree declaring whether such persons have been removed as officers of the labor organization. “(d) An order directing an election, dismissing a complaint, or designating elected officers of a labor organization shall be appealable in the same manner as the final'judgment in a civil action, but- an order directing an election shall not be stayed pending appeal.” For much the same reasons, members should not be held to procedural niceties while seeking redress within their union, and exhaustion- is not required when internal union remedies are unnecessarily complex or otherwise operate to confuse or inhibit union protestors. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
sc_casesource	159	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. MID-CON FREIGHT SYSTEMS, INC., et al. v. MICHIGAN PUBLIC SERVICE COMMISSION et al. No. 03-1234. Argued April 26, 2005 Decided June 20, 2005 James H. Hanson argued the cause for petitioners. With him on the brief were Andrew K. Light and Lynne D. Lidke. Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneed-ler, Mark B. Stern, Sushma Soni, Jeffrey A. Rosen, Paul M. Geier, and Dale C. Andrews. Henry J. Boynton, Assistant Solicitor General of Michigan, argued the cause for respondents. With him on the brief were Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and David A. Voges, Michael A. Nicker-son, Glenn R. White, and Emmanuel B. Odunlami, Assistant Attorneys General. Justice Breyer delivered the opinion of the Court. This case concerns pre-emption. A Michigan law imposes “an annual fee of $100.00” upon each Michigan license-plated truck that is “operating entirely in interstate commerce.” Mich. Comp. Laws Ann. §478.2(2) (West 2002) (hereinafter MCL). A federal statute states that “a State registration requirement , . . is an unreasonable burden” upon interstate commerce when it imposes so high a fee. 49 U. S. C. § 14504(b) (emphasis added); see also § 14504(e)(2)(B)(iv)(III). Does this federal statutory provision pre-empt the Michigan law? We conclude that the Michigan fee requirement is not the kind of “State registration requirement” to which the federal statute refers. And for that reason, the statute does not pre-empt it. I A Federal law has long required most motor carriers doing interstate business to obtain a permit — which we shall call a Federal Permit — that reflects compliance with certain federal requirements. See 49 U. S. C. § 13901 et seq.; 49 CFR § 365.101 et seq. (2004). In 1965, Congress authorized States to require proof that the operator of an interstate truck had secured a Federal Permit. 49 U. S. C. § 302(b)(2) (1976 ed.); see generally Yellow Transp., Inc. v. Michigan, 537 U. S. 36, 39 (2002). By 1991, 39 States demanded such proof by requiring some form of what we shall call State Registration (of the Federal Permit). Those States typically would require truckers to file with a state agency evidence that each interstate truck was covered by a Federal Permit. They would require the trucker to pay a State Registration fee of up to $10 per truck. And they would issue a State Registration stamp that the trucker would affix to a multistate “bingo card” carried within the vehicle. See 49 CFR §§ 1023.32, 1023.33 (1990); Yellow Transp., 537 U. S., at 39. In 1991, Congress focused upon the fact that the “bingo card” system required a trucking company to obtain a separate stamp from each State through which an interstate truck traveled. It found this scheme inefficient and burdensome. See id., at 39-40. And it enacted a statute setting forth a new system, the Single State Registration System (SSRS), which remains in effect today. Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), 49 U. S. C. § 14504. The SSRS allows a trucking company to fill out one set of forms in one State (the base State), and by doing so to register its Federal Permit in every participating State through which its trucks will travel. § 14504(c); 49 CFR § 367.4(b) (2004). The SSRS statute says that the base State can demand: (1) proof of the trucking company’s possession of a Federal Permit, (2) proof of insurance, (3) the name of an agent designated to receive “service of process,” and (4) a total fee (charged for the filing of the proof of insurance) equal to the sum of the individual state fees. 49 U. S. C. §§ 14604(c)(2)(A)(i)-(iv); 49 CFR §§ 367.4(c)(1)-(4) (2004). Each individual state fee, it adds, cannot exceed the amount the State charged under the “bingo card” system, and in no event can it exceed $10 per truck. 49 U. S. C. § 14504(c) (2)(B)(iv)(III). After a truck owner registers, base state officials provide the owner with a receipt to be kept in the cab of each registered truck. 49 CFR §§ 367.5(a), (b), (e) (2004). The base State distributes to each participating State its share of the total registration fee. § 367.6(a). The SSRS statute specifies that a State may not impose any additional “registration requirement.” It states specifically, in the statutory sentence at issue here, that when a State Registration requirement imposes further obligations, “the part in excess is an unreasonable burden.” 49 U. S. C. § 14504(b). It adds that a State may not require “decals, stamps, cab cards, or any other means of registering . . . specific vehicles.” § 14504(c)(2)(B)(iii). And it provides that the “charging or collection of any fee under this section that is not in accordance with the fee system established [in this provision] shall be deemed to be a burden on interstate commerce.” § 14504(c)(2)(C). At the same time, the statute makes clear that a State that complies with the SSRS system need not fear Commerce Clause attack, for it says that a state requirement that an interstate truck “must register with the State” is “not an unreasonable burden on transportation,” provided that “the State registration is completed” in accordance with the SSRS statute. § 14504(b). B The state law at issue here, §478.2(2) of the Michigan Motor Carrier Act, reads as follows: “A motor carrier licensed in this state shall pay an annual fee of $100.00 for each vehicle operated by the motor carrier which is registered in this state [i e., which has a Michigan license plate] and operating entirely in interstate commerce.” Related state rules and regulations require a carrier paying the $100 fee to identify each interstate truck by make, type, year, serial number, and unit number. See Equipment List Form P-344-T, App. to Defendant’s Response to Plaintiffs’ Motion for Summary Disposition in No. 95-15628-CM etc. (Mich. Ct. Cl.) (hereinafter Equipment List Form P-344-T). They also make clear that, upon payment of the fee, the carrier will receive a decal that must be affixed to the truck. App. 24 (Affidavit of Pub. Serv. Comm’n. official Thomas R. Lonergan). And they provide that a carrier who pays this fee need not pay the $10 SSRS registration fee if the carrier chooses Michigan as its SSRS base State. See, e.g., id., at 67, n.; Westlake Transp., Inc. v. Michigan Pub. Serv. Comm’n, 255 Mich. App. 589, 603-604, n. 6, 662 N. W. 2d 784, 790-792, n. 6 (2003); Reply Brief for Petitioners 14-15, n. 8. C Petitioners are interstate trucking companies with trucks that bear Michigan license plates and operate entirely in interstate commerce. Hence they are subject to Michigan’s $100 fee. MCL § 478.2(2) (West 2002). They asked a Michigan court to invalidate § 478.2(2) as pre-empted by the federal SSRS statute. 255 Mich. App., at 592, 662 N. W. 2d, at 789-790. The Michigan Court of Claims rejected their claim. Id., at 593-594, 662 N. W. 2d, at 789-790. And the Michigan Court of Appeals affirmed. Id., at 604, 662 N. W. 2d, at 795. The Court of Appeals wrote that the $100 fee is a “regulatory fee” — a “fee imposed for the administration” of the State’s Motor Carrier Act and for enforcement of Michigan “safety regulations.” Ibid. As such, it falls outside the scope of the term “registration requirement” as used in the federal SSRS statute, 49 U. S. C. § 14504(b). 255 Mich. App., at 604, 662 N. W. 2d, at 795. The federal statute, according to the Michigan court, consequently does not pre-empt it. Ibid. Petitioners sought leave to appeal to the Michigan Supreme Court; leave was denied. Westlake Transp., Inc. v. Michigan Pub. Serv. Comm’n, 469 Mich. 976, 673 N. W. 2d 752 (2003). We granted their petition for certiorari and consolidated the case with American Trucking Assns., Inc. v. Michigan Pub. Serv. Comm’n, ante, p. 429, a case in which interstate truckers sought review of a separate Michigan fee. We now affirm the Michigan court’s judgment in this case, though for other reasons. II A The first legal question before us concerns the meaning of the federal statutory words “State registration requirement.” They appear in a subsection that reads in relevant part as follows: “The requirement of a State that a motor carrier, providing [interstate transportation] in that State, must register with the State is not an unreasonable burden on transportation . . . when the State registration is completed under standards of the Secretary [of Transportation] under subsection (c). When a State registration requirement imposes obligations in excess of the standards of the Secretary, the part in excess is an unreasonable burden.” 49 U. S. C. § 14504(b) (emphasis added). What is the scope of the italicized words? Petitioners ask us to give these words a broad interpretation, sweeping within their ambit every state requirement involving some form of individualized registration that affects an interstate motor carrier. Brief for Petitioners 15 (federal statute’s limits apply “to all interstate motor carriers compelled to register their operations with any State regulatory commission under any State law” (emphasis in original)). The United States argues for a somewhat narrower interpretation, submitting that the words apply to “state registration requirements that are imposed on interstate carriers by reason of their operation in interstate commerce.” Brief for United States as Amicus Curiae 19-20 (emphasis in original). In our view, however, the language, read in context, is yet more narrow. Reference to text, historical context, and purpose discloses that the words “State registration requirement” do not apply to every State Registration requirement that happens to cover interstate carriers, nor to every such requirement specifically focused on a trucking operation’s interstate character. Rather, they apply only to those state requirements that concern SSRS registration — that is, registration with a State of evidence that a carrier possesses a Federal Permit, registration of proof of insurance, or registration of the name of an agent “for service of process.” § 14504(c)(2)(A)(iv). Thus, the federal provision pre-empts only those state requirements that (1) concern the subject matter of the SSRS and (2) are “in excess” of the requirements that the SSRS imposes in respect to that subject matter. See § 14504(b). To begin with, statutory language makes clear that the federal provision reaches no further. Section 14504(b)’s first sentence says that a state “requirement” that an interstate motor carrier must “register with the State is not an unreasonable burden... when the State registration is completed under standards of the Secretary under subsection (c).” Ibid. It is clear from the text as a whole that “State registration” cannot cover all registration requirements, but only some. Cf. post, at 464-465 (Kennedy, J., dissenting). The first sentence’s reference to the “standards of the Secretary” (as well as the focus of the entire statute) tells us which. Those “standards,” set forth in subsection (c) — which is titled “Single State Registration System” — exclusively relate to State Registration of “evidence of” a Federal Permit, “proof of” insurance, and the “name of a local agent for service of process,” and state fees “for the filing of proof of insurance.” §§ 14504(c)(2)(A)(i)-(iv); § 14504(c)(2)(B)(iv). And the rest of the statute similarly deals exclusively with SSRS matters. See § 14504(a) (“standards” mean “the specification of forms and procedures required” to prove that a motor carrier is in compliance with federal requirements). Thus, the words “State registration” in the pre-emption provision’s first sentence refer only to state systems that seek evidence that a trucker has complied with specific, federally enumerated, SSRS obligations. Cf. 49 U. S. C. § 13908(d) (§ 14504’s fees relate specifically to state efforts to obtain proof of insurance under the SSRS); §§ 13908(b)(2) — (3) (indicating that § 14504 refers to state requirements having this purpose). How could the same words in the second sentence refer to something totally different? We have found no language here or elsewhere in the statute (which we reproduce in the Appendix, infra) suggesting that the term “State registration requirement” in sentence two refers to all State Registration requirements “imposed on interstate carriers by reason of their operation in interstate commerce.” Brief for United States as Amicus Curiae 20 (emphasis in original). Indeed, to read the words “by reason of ... ” into § 14504, a linguistic stretch, would be wholly inconsistent with the statute’s basic purposes, because it would leave a State free to implement a regulation in excess of specific SSRS limitations as long as it did not single out interstate carriers (say, a neutral rule that all truckers must pay $50, or $500, per truck for proof of insurance, or must designate multiple agents for service of process). See post, at 463 (Kennedy, J., dissenting). To avoid this severely incongruous result, the dissent (which adopts the Government’s view) must resort to interpretive acrobatics. After first reading subsection (b) to say that a neutral base state requirement, despite being “in excess” of SSRS standards, is not an “unreasonable burden on” commerce, it then reads subsection (c) to say that such a requirement, because it is “in excess” of SSRS standards, is nonetheless prohibited by the statute (in effect, an unreasonable burden on commerce). Post, at 466-468. Aside from imposing significant complexities on the statute where otherwise none would exist, this reading stretches subsection (c)’s function beyond that which its structure and language will allow. Similarly, we see no language elsewhere in the statute suggesting that the term “State registration requirement” refers to any kind of State Registration whatsoever that might affect interstate carriers. And even the Government concedes that certain registration obligations — those in “traditional areas of state regulation” — are beyond the preemptive reach of the statute. Brief for United States as Amicus Curiae 19. Finally, the implementing regulations do not support these broader constructions. See 49 CFR §367.1 et seq. (2004). Our reading of the text finds confirmation in historical context. Congress enacted §14504 to simplify the old “bingo card” system. See Yellow Transp., 537 U. S., at 39-40. Under the “bingo card” scheme, each State could independently demand the same separate filings (evidence of a Federal Permit, proof of insurance, and a service-of-process agent) as well as separate fees. 49 U. S. C. § 302(b)(2) (1976 ed.); §11506 (1988 ed.); 49 CFR §§ 1023.11, 1023.21, 1023.32, 1023.51 (1990). Federal law governing that scheme placed no express constraints on any state filings or fees other than those concerning Federal Permit and insurance requirements. Indeed, federal regulations specified that the federal “bingo card” statute did not “affect” the “collection or [the] method of collection of taxes or fees by a State” from interstate truckers “for the operation of vehicles within” its “borders.” § 1023.104. And they further provided that the statute did not “affect” state requirements “as to the external identification of vehicles to indicate the payment of a State tax or fee imposed for revenue purposes or for any other purpose” not governed by the “bingo card” system. §1023.42. When Congress created the new SSRS, it did not indicate (in the text, structure, or divinable purpose of the new provision) that the pre-emptive scope of the new scheme would be any broader than that of the old. See ISTEA, 105 Stat. 1914. The relevant differences between the SSRS and the “bingo card” regime were that: (1) one State, rather than many, would collect the relevant filings; (2) one State, rather than many, would collect the relevant fees; and (3) these fees, limited to the same amount as before, would relate to filing of proof of insurance rather than to filing of the Federal Permit. Compare 49 U. S. C. § 11506 (1988 ed.) with § 14504 (2000 ed.); see also § 11506 (1988 ed., Supp. IV). These modifications merely sought more efficient, not greater, federal regulation. See Yellow Transp., supra; see also 49 U. S. C. §§ 13908(a), (d) (authorizing the Secretary to replace the SSRS with a yet more streamlined system and pre-empting only those State “insurance filing requirements or fees that are for the same purposes as filings or fees the Secretary requires under the new system” (emphasis added)). And while the new regulations implementing the SSRS do not explicitly exempt unrelated state requirements from the statute’s pre-emptive reach, neither they nor the rulemaking that produced them suggest any change to pre-existing practice in this respect. See 49 CFR §367.1 et seq. (2004); see also Single State Insurance Registration, 9 I. C. C. 2d 610 (1993) (Interstate Commerce Commission decision announcing new regulations); Single State Insurance Registration, No. MC-100 (Sub-No. 6), 1993 WL 17833 (I. C. C., Jan. 13, 1993) (proposing regulations, providing justifications, and soliciting farther comments). Finally, we have found nothing in the statute’s basic purposes or objectives — improving the efficiency of the “bingo card” system and simplifying a uniform scheme for providing States with certain vital information — that either requires a broader reading of the statutory term, or that impliedly pre-empts other, non-SSRS-related state rules. Cf. Geier v. American Honda Motor Co., 529 U. S. 861, 881 (2000) (federal statutes by implication pre-empt state law that stands “as an obstacle to the accomplishment and execution” of their federal objectives (internal quotation marks omitted)). That is, we can find no indication that Congress sought to use this narrowly focused statute to forbid state fee or registration obligations that have nothing to do with basic SSRS (or earlier “bingo card”) objectives — say, for example, a State Registration requirement related to compliance by interstate carriers with rules governing the introduction of foreign pests into the jurisdiction, or with a State’s version of the Amber Alert system, or with size, weight, and safety standards. The Constitution’s Commerce Clause may (or may not) forbid some such rules. But this statute — which identifies and regulates very specific items — says nothing about them, and there is no reason to believe that Congress wished to resolve that kind of Commerce Clause issue in this provision. Cf. 49 U. S. C. § 13908 (indicating that the SSRS may well be only a temporary system and similarly focusing on limited, federally enumerated requirements without discussing broad pre-emption). We conclude, as we have said, that the term “State registration requirement,” as used in the second sentence of the SSRS statute, covers only those State Registration requirements that concern the subject matter of that statutory provision, namely, the registration of a Federal Permit, proof of insurance, and the name of an agent for service of process. See supra, at 446-447. It neither explicitly nor implicitly reaches unrelated matters. B The second legal question involves the Michigan statute imposing the $100 fee on Michigan-plated trucks operating entirely in interstate commerce. MCL §478.2(2) (West 2002). Do the requirements set forth in that statute concern the SSRS statute’s subject matter? We think that they do not. For one thing, the Michigan statute imposing the $100 fee makes no reference to evidence of a Federal Permit, to any insurance requirement, or to Question: What is the court whose decision the Supreme Court reviewed? 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. 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songer_genresp1	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. 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. CITY OF PHOENIX, Plaintiff-Appellee, v. COM/SYSTEMS, INC., et al., Defendants-Appellants. Richard H. BARRY, Counter-claimant/Appellant, v. CITY OF PHOENIX, Counter-defendant/Appellee. OHIO CASUALTY INSURANCE COMPANY, Cross-claimant, v. Richard H. BARRY, et al., Cross-defendant. No. 81-5471. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 7, 1982. Decided May 26, 1983. Don C. Stevens, II, William R. Jones, Jr., Jones, Skelton & Hochuli, Phoenix, Ariz., for plaintiff-appellee. Robert O. Dyer, Phoenix, Ariz., Michael J. Pearce, George E. Wise, Wise & Nelson, Long Beach, Cal., for defendants-appellants. Before ELY and CHOY, Circuit Judges, and THOMPSON, District Judge. The Honorable Bruce R. Thompson, Senior United States District Judge for the District of Nevada, sitting by designation. CHOY, Circuit Judge: This diversity action arose out of a contract dispute between the City of Phoenix (“City”) and a contractor who had agreed to build a communications system for the City. The contractor’s performance bond surety company, which was joined as a defendant, cross-claimed for indemnity against the contractor. We find that (1) the district court acted properly in entering a judgment notwithstanding the verdict on the indemnity cross-claim rather than ordering a new trial; and (2) there is adequate evidence on the record to support the amount of damages awarded to the City by the jury. Therefore, we affirm the judgment entered by the district court. I. Background On December 16, 1974, Richard H. Barry (“Barry”), the owner and manager of Com/Systems, entered into a contract with the City. The contract provided that Barry would build, design, and produce a “multi-channeled, multi-position, two-way radio communications remote control system” for the Phoenix Police Department at a price of $179,294. The contract called for Barry to obtain a contract performance surety bond in the amount of one-half the contract price. Accordingly, Ohio Casualty Insurance Company (“Ohio Casualty”), as surety, executed and delivered on behalf of Barry, as principal, a contract performance bond in the amount of $89,632, designating the City as obligee. Because of a series of revisions requested by the City and other delays caused by problems within Barry’s organization, the system remained incomplete in January 1976. On January 19, 1976, the City informed Barry that it considered the delay to be a material breach and was, therefore, cancelling the contract. At the time of cancellation, the City had paid Barry $134,-264, leaving approximately $45,000 unpaid on the contract. The City then proceeded to work on the project in-house and finally completed the project in September 1979. II. The Trial The City sued Barry and Ohio Casualty for the extra costs it incurred in completing the system, claiming that Barry had breached the contract by failing to meet the contract delivery schedule. Barry counterclaimed against the City, claiming that the City’s unilateral cancellation of the contract constituted a breach. Ohio Casualty cross-claimed against Barry for indemnity for any amount it might have to pay the City on the performance bond. At the trial before a jury, the City presented evidence that it had incurred a total expense of $337,617.26 in completing the communications system. The City’s evidence also showed that of that total, $94,-508.97 was used to purchase parts. Barry estimated the reasonable cost of completing the system and a City communications officer testified as to his belief concerning completion cost at the time the contract was terminated. For reasons that are not completely clear, the trial judge instructed the jury that the total award of damages to the City could not exceed $119,000. The judge correctly instructed the jury that if they found Ohio Casualty liable to the City, then by law, Barry would be liable to indemnify Ohio Casualty for any amount Ohio Casualty paid to the City on the security bond. However, the verdict forms received by the jury included a form that gave the jury the option of finding for the City and against both Barry and Ohio Casualty on the breach-of-contract claim, but for Barry and against Ohio Casualty on Ohio Casualty’s cross-claim for indemnification. The jury returned a verdict on the incorrect verdict form, finding for the City and against Barry and Ohio Casualty in the amount of $90,000, and against Ohio Casualty and for Barry on the indemnity cross-claim. Barry and Ohio Casualty moved for a new trial, or alternatively, for judgment notwithstanding the verdict. The district court entered judgment on the breach-of-contract claim according to the verdict, but entered a judgment notwithstanding the verdict on the indemnity cross-claim. Thus, the district court awarded the City of Phoenix $90,000 against Barry and Ohio Casualty on the breach-of-contract claim and held Barry liable to Ohio Casualty on the indemnity cross-claim. III. Judgment Notwithstanding the Verdict By law, Barry was liable to indemnify Ohio Casualty for any amount Ohio Casualty paid to the City on the performance bond. The instructions read by the trial judge correctly informed the jury of the state of the law. Nevertheless, the verdict forms supplied to the jury gave them the option of deciding the indemnity cross-claim, and the jury exercised that option by returning a verdict for Barry and against Ohio Casualty. The trial judge corrected the error by entering a judgment notwithstanding the verdict on the cross-claim. A judgment notwithstanding the verdict is proper where the evidence and inferences, viewed in the light most favorable to the nonmoving party, can support only one conclusion: that the moving party was legally entitled to a favorable judgment. Allen v. Allstate Insurance Co., 656 F.2d 487, 488 (9th Cir.1981); see Cordero v. CIA Mexicana de Aviacion, S.A., 681 F.2d 669, 672 (9th Cir.1982); Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir.), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96 (1980). Since Ohio Casualty was entitled to judgment on its cross-claim as a matter of law, the judge acted properly in issuing a judgment notwithstanding the verdict on the cross-claim. Barry and Ohio Casualty contend that the judgment notwithstanding the verdict was inadequate to correct the jury’s error and that the proper way to correct the error would have been to grant a new trial on all issues. A trial judge may grant a new trial in order to prevent fundamental unfairness or a miscarriage of justice. Peacock v. Board of Regents, 597 F.2d 163, 165 (9th Cir.1979); cf. Alma v. Manufacturers Hanover Trust Co., 684 F.2d 622, 625 (9th Cir.1982) (nonjury trial). But the district court’s conclusion that no such unfairness was present may be reversed only if this court has a definite conviction that the conclusion was a clear error of judgment. Ruiz v. Hamburg-American Line, 478 F.2d 29, 31 (9th Cir.1973);. cf. Alma, 684 F.2d at 625. After considering the circumstances of this case, we have no such conviction that the district court’s decision to deny a new trial was erroneous. The breach-of-contract claim and the indemnity cross-claim rested on totally distinct factual and legal bases. The question of Barry’s liability to indemnify Ohio Casualty was irrelevant to the outcome on the breach-of-contract question. Having seen all the evidence and heard all the testimony, the district court judge was in the best position to ascertain that the jury’s decision on the breach-of-contract issue was supported by substantial evidence and was not tainted by the jury’s erroneous decision on the indemnity issue. Since the two issues were distinct and separable, no injustice occurred when the district court entered a judgment in accord with one part of the jury’s liability verdict but entered a judgment notwithstanding the indemnity portion of the verdict. Cf. Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931) (partial retrial allowable where it clearly appears that issue to be retried is distinct and separable from others); Camalier & Buckley-Madison, Inc. v. Madison Hotel, Inc., 513 F.2d 407, 420-21 (D.C.Cir.1975) (same). We therefore affirm the judgment entered by the district court with respect to the liability issues. IV. Adequacy of Evidence Supporting Damages Award Before deciding whether there was sufficient evidence to support the amount of damages awarded by the jury, we must first address two evidentiary questions— one explicitly raised by Barry and Ohio Casualty and the other implied in their arguments. A. Objection to Testimony by Simmons John E. Simmons, a City communications officer, testified that the City had expended $337,617.26 in completing the communications system. The trial court allowed the testimony over the objection of the defendants that the proper foundation had not been laid. Although the judge did not specify the reason for his ruling, the questions he asked lead us to infer that he found the testimony admissible as a summary calculation of voluminous writings under Fed.R. Evid. 1006. However, it is not critical that we know the trial judge’s rationale; we will uphold the ruling if we find that there is at least one theory under which the evidence was admissible. See SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943); Clark v. City of Los Angeles, 650 F.2d 1033, 1036 (9th Cir.1981), cert. denied, 456 U.S. 927, 102 S.Ct. 1974, 72 L.Ed.2d 443 (1982). Simmons read the $337,617.26 total from Exhibit 87, a computer printout summarizing numerous individual documents. The underlying documents were parts requisitions and work-order requests detailing the cost of parts and labor the City expended in completing the communications system. Although the underlying documents were not offered as evidence at the time of Simmons’ testimony, we believe that a foundation was laid for their admissibility as records kept in the ordinary course of business. For a record to be admissible as a business record, it must be: “(1) made by a regularly conducted business activity, (2) kept in the ‘regular course’ of that business, (3) ‘the regular practice of that business to make the memorandum,’ (4) and made by a person with knowledge or from information transmitted by a person with knowledge.” Clark v. City of Los Angeles, 650 F.2d at 1036-37 (summarizing Fed.R.Evid. 803(6)). Prior to reading from the summary, Mr. Simmons explained how the underlying documents were generated. He explained that any City employee doing mechanical, repair, or construction work would fill out a work order showing the project number of the project on which he was working and the amount of time he spent on the project. Similarly, if the employee used any parts to do his work, he would fill out a parts requisition, listing the project number and parts and equipment purchased. The City’s mechanical, repair, and construction work is a regularly conducted business activity. Since a document was produced each time an employee worked on a project or ordered parts or equipment, the documents were kept in the regular course of business, and it was a regular practice to keep such documents. The documents were prepared by an employee who had knowledge of the actual time expended or parts purchased. Thus, a proper foundation was laid for the admission of the underlying documents under Fed.R.Evid. 803(6). Because the work orders and parts requisitions were so numerous, the City produced the computer printout to summarize their contents. The trial judge had ascertained that the underlying documents were available for inspection by the defendants. Therefore, the summary was admissible under Fed.R.Evid. 1006. See United States v. Johnson, 594 F.2d 1253, 1254 — 57 (9th Cir.) (summary admissible only if underlying documents admissible, voluminous, and available for inspection), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 376 (1979). The trial judge acted correctly in allowing Simmons to read from the summary. B. Testimony of Gross In addition to the testimony by Mr. Simmons, the City presented the testimony of Gary Gross, the City Controller, concerning the costs the City incurred in completing the system. Gross also read to the jury from Exhibit 87, the summary of parts and labor costs. The two numbers Gross read to the jury were $94,508.97 (the total amount the City expended for parts) and $337,-617.26 (the total amount the City expended for parts and labor). There was never any objection to Mr. Gross’ reading these numbers to the jury, but counsel for Barry did object when, after Mr. Gross had read the numbers to the jury, the City moved to have Exhibit 87 and the underlying documents admitted into evidence. The trial judge sustained the objection, but because part of the discussion concerning this objection was held off the record, we do not know the trial judge’s rationale for not admitting the documents into evidence. Barry and Ohio Casualty seem to assume that Mr. Gross’ testimony concerning costs incurred by the City is not in the record. However, as we have previously noted, Barry and Ohio Casualty never objected to Mr. Gross’ reading the numbers to the jury; they merely objected to the motion to move the summary and its underlying documents into evidence. Nor was there any motion to strike Mr. Gross’ testimony after the summary documents were declared inadmissible. Therefore, Barry and Ohio Casualty never argued in the district court that if the document from which Gross read was inadmissible, then the jury should not have been allowed to consider the numbers that Mr. Gross read from that document. This court will not review an issue not raised or objected to below unless necessary to prevent manifest injustice, In re Southland Supply, Inc., 657 F.2d 1076, 1079 (9th Cir.1981), or unless the issue not objected to in the district court is one of law and does not affect or rely upon the factual record, Telco Leasing, Inc. v. Transwestern Title Co., 630 F.2d 691, 693 (9th Cir.1980); United States v. Patrin, 575 F.2d 708, 712 (9th Cir.1978). The evidentiary question raised by Mr. Gross’ testimony is one that would affect the factual record, so the second exception to the general rule of nonreview does not apply. In addition, we believe that the first exception is inapplicable, for no manifest injustice occurred by allowing Mr. Gross’ testimony to remain on the record even though the district court sustained the objection to move the document underlying that testimony into evidence. As we have already determined, Mr. Simmons’ testimony established a foundation sufficient to support admission of Exhibit 87 as a summary of admissible business records. Even though the document itself was never admitted into evidence, we believe that it was admissible. Therefore, allowing the jury to consider numbers read from that document did not constitute manifest injustice. We consider the numbers read to the jury by Mr. Gross to be evidence upon which the jury could have properly based its verdict. C. Adequacy of Evidence The jury had before it evidence that the City had purchased $94,508.97 worth of parts and expended a total of $337,617.26 for both parts and labor in order to complete the system. Other evidence relevant to the question of damages took the form of the estimates by Simmons and defendant Barry. Barry testified that he could have completed the system for an additional $11,-000 and that, in his opinion, another vendor could have completed the system for between $50,000 and $75,000. Simmons testified that at the time the contract was terminated, he believed the City could complete the project for approximately $80,000. The trial judge, acting to implement the remedy for breach provided in the contract, put a ceiling of $119,000 on the damages award. This court’s standard of review with respect to the sufficiency of the evidence to sustain a damage award is narrow. Kotz v. Bache Halsey Stuart, Inc., 685 F.2d 1204, 1208 (9th Cir.1982). We will disturb a damage award only when it is clear that the evidence does not support it. Flores v. Pierce, 617 F.2d 1386, 1392 (9th Cir.), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96 (1980); see Mitsui O.S.K. Lines, K.K. v. Horton & Horton, Inc., 480 F.2d 1104, 1106 (5th Cir.1973). Since the damages awarded by the jury were well within the range of the evidence presented to the jury, we uphold the award. AFFIRMED. . While none of the parties questioned the $119,000 ceiling on damages at the time of trial, all are now at a loss to explain exactly how this number was derived. The district court judge arrived at the number by relying on his interpretation of paragraph 11 of the contract: In case of default by the Vendor, the City shall have the right to cancel and to repurchase from another source, and may recover the excess costs by deduction from an unpaid balance due the Vendor, collection against the bid and/or performance bond, or a combination of the aforementioned remedies. . In addition to the evidentiary questions, appellants presented to this court an argument that the City was estopped from obtaining any damages from Barry by the language of paragraph 11 of the contract between Barry and the City (quoted at n. 1, supra ). They cite several Arizona cases for the proposition that if a contract provides a remedy in event of a breach, that remedy is exclusive. See, e.g., Motorola, Inc. v. Fairchild Camera & Instrument Corp., 366 F.Supp. 1173, 1179 (D.Ariz. 1973); Green v. Snodgrass, 79 Ariz. 319, 289 P.2d 191, 192-93 (1955); Treadway v. Western Cotton Oil & Ginning Co., 40 Ariz. 125, 10 P.2d 371, 374-75 (1932); Armstrong v. Irwin, 26 Ariz. 1, 221 P. 222, 225 (1923); Miller v. Crouse, 19 Ariz.App. 268, 506 P.2d 659, 664 (1973); Camelback Land & Investment Co. v. Phoenix Entertainment Corp., 2 Ariz.App. 250, 407 P.2d 791 (1965). Appellants argue that the contract provided only one remedy in case of default: “[T]he City shall have the right to cancel and to repurchase from another source and may recover the excess costs .... ” Since the City completed the system itself, rather than “repurchase from another source,” appellants contend the City is estopped from seeking to recover its costs. We do not so narrowly read the “repurchase from another source” language as to exclude the possibility of in-house completion and to require repurchase from another outside source. Rather, we read the language of paragraph 11 of the contract to limit the amount of damages the City could recover in the event that the City had to seek completion of the communications system by a source other than Barry. The district court limited the amount of damages to the amount provided in the contract. See n. 1, supra. We therefore find that the remedy sought by the City in the present case conforms with the remedy set forth in paragraph 11 of the contract. However, we note that even if the contractual remedy could be construed so narrowly as to allow reimbursement only for outside purchases, the damages awarded in this case conform to that narrow construction. The City purchased $94,508.97 worth of parts from outside sources and was awarded $90,000 in damages. . Before ruling on the objection to Mr. Simmons’ testimony, the trial judge engaged in the following colloquy with witness Simmons and with Mr. Stevens, the attorney for the City: THE COURT: You say the underlying documents are present? MR. STEVENS: Yes, sir. THE COURT: Did you have anything to do with the preparation or supervision of the preparation of that document? THE WITNESS: Not myself, no. THE COURT: This is a summary of the other documents? THE WITNESS: Yes, sir. THE COURT: He may testify. . Appellant Ohio Casualty states in its brief: “The only evidence of damages presented at trial was the testimony of John E. Simmons ... that the City’s costs of completing the system in-house totalled $337,617.26.” 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_adminaction_is	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. O’CONNOR et ux. v. UNITED STATES No. 85-558. Argued October 14, 1986 Decided November 4, 1986 Scalia, J., delivered the opinion for a unanimous Court. Carter G. Phillips argued the cause for petitioners in all cases. On the briefs were Andrew C. Barnard, David J. Kiyonaga, Allan I. Mendelsohn, Marvin I. Szymkowicz, John C. Morrison, George S. Barnard, Michael C. Pierce, and Dwight A. McKabney. Jerrold J. Ganzfried argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Olsen, Deputy Solicitor General Wallace, Michael L. Paup, David English Carmack, and Abraham D. Sofaer. ■ Together with No. 85-559, Coplin et ux. v. United States, and No. 85-560, Mattox et ux. v. United States, also on certiorari to the same court. Justice Scalia delivered the opinion of the Court. The petitioners, United States citizen employees of the Panama Canal Commission and their spouses, seek refunds of income taxes collected on salaries paid by the Commission between 1979 and 1981. We granted certiorari to resolve conflicting appellate interpretations of an international agreement. 474 U. S. 1050 (1986). From 1904 to 1979, the United States exercised sovereignty over the Panama Canal and the surrounding 10-mile-wide Panama Canal Zone under the Isthmian Canal Convention, 38 Stat. 2234. On September 7, 1977, the United States and Panama signed the Panama Canal Treaty, T.I.A.S. No. 10030, which was ratified by the Senate on April 17, 1978, and took effect on October 1, 1979. The Treaty transferred to Panama sovereignty over the Canal and Zone, but gave the United States the right to operate the Canal until December 31, 1999. The vehicle for United States administration of the Canal is the Panama Canal Commission, a United States Government agency supervised by a Board of nine members, four of whom are Panamanian nationals proposed by the Government of Panama. See 22 T.I.A.S. No. 10031 (hereinafter Agreement), contains the provision that gives rise to the present dispute. Article XV of the Agreement, entitled “Taxation,” provides as follows: “1. By virtue of this Agreement, the Commission, its contractors and subcontractors are exempt from payment in the Republic of Panama of all taxes, fees or other charges on their activities or property. “2. United States citizen employees and dependents shall be exempt from any taxes, fees or other charges on income received as a result of their work for the Commission. Similarly, they shall be exempt from payment of taxes, fees or other charges on income derived from sources outside the Republic of Panama. “3. United States citizen employees and dependents shall be exempt from taxes, fees or other charges on gifts or inheritance or on personal property, the presence of which within the territory of the Republic of Panama is due solely to the stay therein of such persons on account of their or their sponsor’s work with the Commission. “4. The Coordinating Committee may establish such regulations as may be appropriate for the implementation of this Article.” The petitioners contend that § 2 of this Article constitutes an express exemption of their Commission salaries from both Panamanian and United States taxation. See 26 U. S. C. § 894(a) (“Income of any kind, to the extent required by any treaty obligation of the United States, shall not be included in gross income and shall be exempt from taxation under this subtitle”). The Claims Court agreed, 6 Cl. Ct. 115 (1984), but was reversed by a five-judge panel of the Federal Circuit. 761 F. 2d 688 (1985). In a substantively identical case, the Eleventh Circuit has ruled for the taxpayers. Harris v. United States, 768 F. 2d 1240 (1985), cert. pending, No. 85-1011. The same issue is presented in numerous cases still pending in the lower courts. We agree with the Federal Circuit. The first section of Article XV, which confers upon the Commission and its contractors an exemption “from payment in the Republic of Panama of all taxes” (emphasis added), establishes the context for the discussion of tax exemptions in the entire Article — so that when §§2 and 3 state that “United States citizen employees . . . shall be exempt” from taxes they are understood to be dealing only with taxes payable in Panama. In that regard the structure of Article XV is similar to that of Article XVI, which in most of its sections speaks generally of import duties, but is understood to refer only to Panamanian import duties principally because § 1 sets the stage in that fashion by referring to “the customs laws and regulations of the Republic of Panama.” Agreement, Art. XVI, § 1 (emphasis added). There is some purely textual evidence, albeit subtle, of the understanding that Article XV applies only to Panamanian taxes: In conferring an exemption from property taxes, §3 displays an assumption that only personal property within the Republic of Panama is at issue; otherwise, that significant qualification to the operation of § 3 would more naturally have been set forth as an explicit limitation (“personal property within the territory of the Republic of Panama, whose presence there,” etc.) rather than being referred to incidentally in the modifying clause (“personal property, whose presence within the territory of the Republic of Panama,” etc.). And the assumption that only personal property within Panama is at issue in turn reflects the more fundamental assumption that only Panamanian personal property taxes are being addressed. More persuasive than the textual evidence, and in our view overwhelmingly convincing, is the contextual case for limiting Article XV to Panamanian taxes. Unless one posits the ellipsis of failing to repeat, in each section, § l’s limitation to taxes “in the Republic of Panama,” the Article takes on a meaning that is utterly implausible and has no foundation in the negotiations leading to the Agreement. For if the first sentence of § 2 refers to United States as well as Panamanian taxes, then the second sentence of § 2, and the totality of § 3, must do so as well — with the consequence that United States citizen employees and their dependents would be exempt not only from United States income tax on their earnings from the Commission, but also from United States income tax on all income from sources outside Panama (e. g., United States bank accounts), and from all United States gift and inheritance taxes. While, as the petitioners assert, there might have been some reason why Panama would insist that its inability to tax United States citizen Commission employees upon their earnings in Panama be matched by a detraction from the United States’ sovereign power to tax those same earnings, there is no conceivable reason why this hypothetical “your-sovereignty-for-mine” negotiating strategy would escalate into a demand that the United States yield more sovereign prerogatives than it was asking Panama to forgo — and no imaginable reason why the United States would accept such an escalation, producing tax immunity of unprecedented scope. from the United States’ sovereign power to tax those same earnings, there is no conceivable reason why this hypothetical “your-sovereignty-for-mine” negotiating strategy would escalate into a demand that the United States yield more sovereign prerogatives than it was asking Panama to forgo — and no imaginable reason why the United States would accept such an escalation, producing tax immunity of unprecedented scope. The petitioners’ attempts to explain why these broader tax consequences need not follow from their interpretation are unpersuasive. With regard to the second sentence of §2, they argue that the opening word “similarly” should be read to incorporate into that sentence the first sentence’s restriction to “income received as a result of . . . work for the Commission.” On this understanding, the second sentence provides a “simila[r]” tax exemption for Commission-related income “derived from sources outside the Republic of Panama,” but allows both countries to tax non-Commission income. In addition to being an unnatural reading of “similarly” in this context, this interpretation is flatly inconsistent with the language of § 2. Contrary to the petitioners’ tacit assumption, the first sentence contains nothing limiting the scope of its exemption to income received as a result of work for the Commission in Panama. A person receiving a Commission salary for work performed in, for example, Bo-gotá would seem plainly to qualify for exemption under this provision — rendering the second sentence, on the petitioners’ understanding, superfluous. With regard to §3, the petitioners assert that its reference to taxation of property “within the territory of the Republic of Panama” is sufficient to demonstrate that only Panamanian taxation is intended to be covered. But as a reading of the provision will readily demonstrate, that reference applies only to personal property taxes; there is no comparable qualification on §3’s exemption from taxes “on gifts or inheritance.” That is limited, if at all, only by the implication that Panamanian taxes alone are at issue. In sum, we find the verbal distortions necessary to give plausible content, under the petitioners' theory, to the second sentence of §2 and §3, far less tolerable than the acknowledgment of ellipsis which forms the basis of the Government’s interpretation. Not only is limitation of Article XV to Panamanian taxes in accord with the consistent application of the Agreement by the Executive Branch — a factor which alone is entitled to great weight, see Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184-185 (1982)—but that application has gone unchallenged by Panama. It is undisputed that, pursuant to clear Executive Branch policy, the Panama Canal Commission consistently withheld United States income taxes from petitioners and others similarly situated, see Letter from John L. Haines, Jr., Deputy General Counsel, Panama Canal Commission, to David Slacter, United States Department of Justice, Dec. 20, 1982, pp. 2-3, 1 App. in Nos. 85-504, 85-505, 85-506, and 85-507 (CA Fed.), pp. 61-62, and that Panama, which had four of its own nationals on the Board of the Commission, did not object. The course of conduct of parties to an international agreement, like the course of conduct of parties to any contract, is evidence of its meaning. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U. S. 243, 259-260 (1984); Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U. S. 138, 158-161 (1934). Cf. Uniform Commercial Code §2-208(1) (1978). Agreement. Similarly, as is provided by Panamanian law, they shall be exempt from payment of taxes, fees or other charges on income derived from sources outside the Republic of Panama.” Panama Canal Treaty: Implementation of Article IV, Sept. 7, 1977, Art. XVI, § 2, T.I.A.S. No. 10032 (emphasis added). The petitioners contend that the variation in the phraseology of the two provisions demonstrates that the taxation provisions of the Article III Agreement were meant to be bilateral. We think not. It would be another matter if the variation at issue were alteration of the phrase “Panamanian taxes” in one agreement to merely “taxes” in the other; there would have been no reason to object to the former formulation except the belief that more than Panamanian taxes were covered. Several plausible reasons, however, would justify objection to the phrase “as is provided by Panamanian law.” The most obvious is the concern that the phrase would be interpreted to leave future scope of the tax exemption within Panama’s unilateral control, through the amendment of its domestic law. (To be sure, that reason would seemingly call for deletion of the phrase from both agreements rather than merely the Agreement in Implementation of Article III — but perhaps it was only with respect to the latter agreement, in which Panama had steadfastly opposed the whole concept of tax exemption, that unilateral Panamanian action was feared.) The surmise that the reason for deletion of the phrase in the Article III Agreement was its implication that only Panamanian taxes were covered would perhaps be reasonable if it were clear that the deletion was prompted by Panama. In fact, however, the deletion was made in the course of the American side’s own internal drafting, before any text had even been presented to the Panamanians. (The phrase “as is provided by Panamanian law” was included in the June 26, 1977, United States draft of § 2 of Art. XV, 1 App. in Nos. 85-504, 85-505, 85-506, and 85-507 (CA Fed.), p. 74, but was dropped from subsequent United States only Panamanian taxes were covered would perhaps be reasonable if it were clear that the deletion was prompted by Panama. In fact, however, the deletion was made in the course of the American side’s own internal drafting, before any text had even been presented to the Panamanians. (The phrase “as is provided by Panamanian law” was included in the June 26, 1977, United States draft of § 2 of Art. XV, 1 App. in Nos. 85-504, 85-505, 85-506, and 85-507 (CA Fed.), p. 74, but was dropped from subsequent United States drafts, id., at 77, 81.) The petitioners assert that this occurred as a consequence of the American side’s knowledge that Panama would not accept a unilateral tax exemption provision and would accept a bilateral one — but they point to no Panamanian negotiating proposal supporting that speculation, which seems to us not inordinately credible on its face. We find the petitioners’ attempted reliance upon other elements of the negotiating history unavailing. While the Claims Court may have been correct that the negotiating history does not favor the Government’s position sufficiently to overcome what that court regarded as a plain textual meaning in favor of the taxpayers, it certainly does not favor the taxpayers’ position sufficiently to affect our view of the text. It contains, we may note, only a single (unhelpful) reference to United States income taxation — a silence that can perhaps be reconciled with the petitioners’ position, but can hardly be said affirmatively to support it. Finally, we find no significance in the fact, urged so strongly by the petitioners, that Article XV is entitled “Taxation” rather than “Panamanian Taxation.” Of the 21 Articles of the Agreement, only 2 — Articles V and IX — are limited by title to Panamanian subject matter, though it is plain that most are so limited in their application. See, e. g., Article VII (“Water Rights”); Article XII (“Entry and Departure”); Article XVI (“Import Duties”). The judgment of the Court of Appeals is Affirmed. After this case was argued, the President signed into law the Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2085. Section 1232(a) of that Act provides, in relevant part, that for “all taxable years whether beginning before, on, or after the date of the enactment of this Act (or in the case of any tax not imposed with respect to a taxable year, [for] taxable events after the date of enactment of this Act,” no provision of the Treaty or Agreement “shall be construed as exempting (in whole or in part) any citizen or resident of the United States from any tax under the Internal Revenue Code of 1954 or 1986.” Because we find that the Agreement, properly interpreted, provides for the same result, we do not rely upon the statute, and thus avoid confronting the constitutional questions posed by retroactive income taxation. See United States v. Darusmont, 449 U. S. 292, 296-301 (1981); Welch v. Henry, 305 U. S. 134, 146-151 (1938). The Government has contended, here and before the Court of Appeals, that the answer to the current question is illumined, if not conclusively determined, by a February 22,1985, diplomatic note from the Government of Panama, indicating that it shares the United States’ view that Article XV pertains only to Panamanian taxation. The petitioners assert that mutual agreement between the contracting parties on interpretation cannot be dis-positive of third-party rights, and that the note is in any event inadmissible on various grounds. Since we would sustain the Government’s position without reference to the note, we need not resolve these disputes. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_respond1_7_5	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 "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). PEERLESS INSURANCE COMPANY, Appellant, v. Joan SCHNAUDER and Patricia Schnauder, thru Joyce Schnauder Ernest, Their Next Friend, Appellees. No. 18600. United States Court of Appeals Fifth Circuit. May 19, 1961. William A. Porteous, Jr., New Orleans, La., Porteous & Johnson, New Orleans, La., for appellant. Herman M. Schroeder, Richard A. Kuntz and Hattier, Schroeder & Kuntz, New Orleans, La., for appellees. Before TUTTLE, Chief Judge, JONES, Circuit Judge, and MIZE, District Judge. JONES, Circuit Judge. Suit was brought under the Louisiana Direct Action Statute by the appellees, Joan Schnauder and Patricia Schnauder, against the appellant, Peerless Insurance Company, the insurer of Charity Hospital in New Orleans, Louisiana, under a public liability policy. The appellees, who were plaintiffs below and who will be so designated here, claimed damages for the death of their mother as a result of a collision betwen a Jeep owned by Charity Hospital and driven by its employee, William Ganaway. Peerless made a motion for a directed verdict at the close of the plaintiffs’ case and a like motion at the conclusion of the entire case. These motions were denied. A jury verdict was returned for the plaintiffs in the amount of $1,000.00 for Joan Schnauder and $9,000.00 for Patricia Schnauder. Peerless made and the court overruled a motion for .'a judgment notwithstanding the verdict. Judgment on the verdict was entered and this appeal is from that judgment. William Ganaway was employed by Charity Hospital as a mechanic’s helper. Among the motor vehicles owned and used by the Hospital was a Jeep. Among the duties sometimes performed by Gan-away was the changing of tires and other servicing of vehicles away from the garage, and when assigned to such tasks, he would be directed to use the Jeep. On the Sunday morning of December 21, 1958, Ganaway was, or was supposed to be, on duty at the Charity Hospital garage. On that morning, about nine o’clock, the Jeep, while being driven by Ganaway along Gravier Street, in New Orleans, collided at the intersection of Gravier and South Roman Streets, with a 1955 Dodge car being driven by its owner, Manuel Powe. In the Jeep with Ganaway was Lillian Schnauder, mother of the plaintiffs. She was employed at Morrison’s Cafeteria, on Gravier Street. Mrs. Schnauder received injuries in the collision from which she died three days later. Ganaway also died as the result of his injuries. The plaintiffs surmised that Ganaway saw Mrs. Schnauder and picked her up to give her a lift on her way to work. Peerless conjectured that Ganaway had taken the Jeep from the Hospital garage for the purpose of taking Mrs. Schnauder to her place of employment. The plaintiffs asserted that their mother’s injury and death were the result of the negligence of Ganaway, the employee of the Hospital which was insured by Peerless. The defendant, Peerless, denied that Ganaway was negligent and asserted that Ganaway’s use of the Jeep on the day of the collision was unauthorized and without the consent of the insured owner, and that Ganaway was not, at the time of the accident, acting in the scope and course of his employment. Both of these issues were resolved by the jury for the plaintiffs. The liability of Peerless is dependent upon whether Ganaway was an “insured” under the omnibus clause of the policy which included any person while using the automobile, provided the actual use was with the permission of the named insured. The courts of Louisiana have gone far in extending coverage under the omnibus clauses of insurance policies. Gonzalez v. National Surety Corporation, 5 Cir., 1959, 266 F.2d 667. Under the liberal view which obtains in Louisiana, if there is initial permission for the use of the vehicle, the coverage of the insurance attaches even though the liability arises out of a subsequent use for an unauthorized or unintended purpose. Parks v. Hall, 189 La. 849, 181 So. 191; Waits v. Indemnity Insurance Co. of North America, 215 La. 349, 40 So.2d 746; Dominguez v. American Casualty Co., 217 La. 487, 46 So.2d 744. But it does not follow that, under all circumstances, a person injured or the representatives of a person killed would have a cause of action under the omnibus clause against the insurer for injuries or death caused as a result of the negligent operation of the vehicle. Parker v. Great American Indemnity Co., La.App., 81 So.2d 79. So, if Ganaway had permission, express or implied, to take the Jeep from the garage of his employer on the morning of the fatal accident, that permission would be continued and extended while the vehicle was being used in excess of the authority given or in violation of the employer’s rules. Hartford Accident & Indemnity Co. v. Collins, 5 Cir., 1938, 96 F.2d 83, certiorari denied 305 U.S. 627, 59 S.Ct. 89, 83 L.Ed. 401. There is not any evidence in the record before us showing that Ganaway had any permission to use the Jeep on that morning. The plaintiffs contend that where a car is driven by an employee of the owner, a presumption arises that the employee was acting in the scope of his employment at the time of the accident. For this proposition the plaintiffs refer us to Antoine v. Louisiana Highway Commission, La.App., 188 So. 443. While there may be such a presumption applicable in a case asserting liability against the owner of a motor vehicle, and Antoine was such a case, it is the rule that in a suit on the omnibus clause of an automobile liability policy the plaintiffs have the burden of producing evidence that the vehicle was being used with the permission of the insured owner. Abshire v. Audubon Insurance Co., La.App., 99 So.2d 395; Standard Accident Insurance Co. v. Rivet, 5 Cir., 1937, 89 F.2d 74; Continental Casualty Co. v. Quebedeaux, 5 Cir., 1956, 234 F.2d 241. There is, as is pointed out in the Rivet opinion, a difference between a master and servant case and one asserting an insurance liability. There was evidence from which it might have been inferred that Ganaway had general authority to take the Jeep out for the purpose of servicing ambulances and other vehicles and for procuring repair parts. It is suggested by the plaintiffs that Ganaway might have gone on such a mission prior to his inviting Mrs. Schnauder to become a passenger in the car, thus warranting the inference that the use at the time was permissive, or at least that there had been an initial permissive use which would subject the insurer to liability even though the use at the time was unauthorized or prohibited. The plaintiffs contend that Ganaway was driving toward the Hospital at the time of the accident and from this they say it may be inferred that he was then returning the Jeep and so was in the course of his employment. The difficulty with the plaintiffs’ postulates is that they are based upon conjecture rather than proof. Such meagre evidence as there is would seem to negative any inference that Gan-away had taken out the Jeep for any purpose on behalf of his employer. The permission to use an automobile in the business of the owner does not authorize an employee to take it for use on a mission of his own. Sun Underwriters Insurance Co. v. Standard Accident Insurance Co., La.App., 47 So.2d 133; Wilson v. Farnsworth, La.App., 4 So.2d 247. Cf. Farnet v. DeCuers, La.App., 195 So. 797. No different rule would apply even though it might be inferred that Gana-way was, when the accident happened, in the process of returning the car to his employer. Wilson v. Farnsworth, supra. The plaintiffs point to evidence showing that about a month before the accident with which we are here concerned, Ganaway had taken the Jeep for the purpose of getting coffee. This, say the plaintiffs, justifies an inference that there was a customary use from which permission might be implied, as in the case of Fulco v. City Ice Service, Inc., La.App., 59 So.2d 198. But a custom does not arise from a single incident. The evidence also shows that Ganaway was reprimanded for taking the Jeep without permission and threatened with discharge if he was caught doing it again. We reach the conclusion that the plaintiffs cannot recover on the insurance policy because of the absence of evidence that Ganaway was using the Jeep in the course of his employment by the Hospital, or that he had been given any permission, express or implied, to use it on any mission of his own. Having reached this conclusion it becomes unnecessary that we consider the appellant’s specifications of error relating to the refusal of the court to give requested charges and the refusal to direct a verdict because of the insufficiency of the evidence to show negligence on the part of Ganaway. Neither do we discuss the question as to whether there should have been a dismissal of the action as to Joan Schnauder on the ground that the jurisdictional amount was not shown. One of the remaining questions submitted might, we think, be commented on briefly. Three jurors were excused because of their acquaintance with counsel for the insurance company, and it is asserted that in so doing, the court erred. One was excused because he had known the attorney “many, many years.” Another had known him “for some time” “just as a friend.” The third knew him “personally” “quite a number of years” having “met him at different occasions,” and at “social functions.” We think the jurors were improperly excused. As this Court has said, “A juror is not per se disqualified because he is acquainted with or a friend of counsel in a case, whether advocating the cause of a private litigant or prosecuting in a criminal case.” Roberson v. United States, 5 Cir., 1957, 249 F.2d 737, 740, certiorari denied 356 U.S. 919, 78 S.Ct. 704, 2 L.Ed.2d 715. In the absence of evidence from which it was shown or might be inferred that the Jeep was being driven by Ganaway with express or implied authorization or permission of the insured there is no legal support for the judgment against the insurance company. Therefore the judgment must be reversed and be here rendered for the appellant. Continental Casualty Co. v. Quebedeaux, supra. Reversed and rendered. . LSA-R.S. 22:655. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy 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. Robert G. BAKER, Appellant v. UNITED STATES of America, Appellee. UNITED STATES of America v. Robert G. BAKER, Appellant. Nos. 21154, 23327. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 3, 1969. Decided June 30, 1970. Denied' July 29, 1970. Petition for Rehearing in No. 21154. Mr. Michael E. Tigar, Washington, D. C., with whom Mr. Edward Bennett Williams, Washington, D. C., was on the brief, for appellant. Mr. Sidney M. Glazer, Atty., Department of Justice, for appellee. Miss Beatrice Rosenberg, Atty., Department of Justice, also entered an appearance for appellee. Before WRIGHT, McGOWAN and ROBINSON, Circuit Judges. J. SKELLY WRIGHT, Circuit Judge: Appellant Robert G. Baker was convicted in the United States District Court on seven counts of a nine-count indictment charging larceny, income tax evasion, and related offenses. On appeal this court rejected all of appellant’s claims of trial court error except two relating to Government eavesdropping, which we did not decide. As to the eavesdropping issues, we held that logs of certain eon-cededly illegal eavesdropping should have been made available to appellant before trial, and we remanded to the District Court to determine, after making them available to the defense, whether these logs tainted the Government’s case. At the same time we ordered the trial court to determine whether the prosecution used tainted information in the course of the cross-examination of Baker. On remand the trial court held full and complete hearings on these issues. Its findings of fact and conclusions of law, which we adopt, are included as Appendix A to this opinion. For the reasons discussed below, we now affirm the conviction. I On appeal to this court from the remand hearing, appellant argues that the trial court improperly foreclosed his efforts to trace the subsequent use of the tainted information derived from the illegal taps, the logs of which were furnished appellant pursuant to this court’s order. Any discussion of a defendant’s rights in relation to logs of illegally monitored conversations must focus on the Supreme Court’s recent decision in Alderman v. United States. Once the illegal monitorings have “come to light, [the United States] has the ultimate burden of persuasion to show that its evidence is untainted. But at the same time [the defense] * * * must go forward with specific evidence demonstrating taint.” At the remand hearing the defense did go forward with such specific evidence culled from the logs which had been turned over by the Government. The Government countered by. indicating the sources of all questioned evidence which was used at trial. Appellant was allowed to cross-examine the trial attorneys for the Government, the Internal Revenue Service agents who helped in preparing evidence for the trial, and the F.B.I. agents assigned to the case. As a result there was extensive testimony — subject to intensive cross-examination — about the sources of all the possibly tainted information used in the prosecution. Upon a careful review of the record, we agree with the trial judge that the Government sustained its burden of showing that its evidence was not tainted. Appellant’s more basic contention, however, is that testimony from Government agents can never be sufficient proof to uphold the Government’s ultimate burden of persuasion. Appellant argues that he should have been allowed to search through the complete “government files which were used as a basis for investigating and prosecuting the defendant” in order to determine whether any tainted information, obtained directly or indirectly from the illegal taps, was actually used in the prosecution of the case. The Supreme Court in Alderman, however, did not sanction such a far-reaching investigation by the defense in every case. It said: “None of this means that any defendant will have an unlimited license to rummage in the files of the Department of Justice. Armed with the specified records of overheard conversations and with the right to cross-examine the appropriate officials in regard to the connection between those records and the case made against him, a defendant may need or be entitled to nothing else. Whether this is the case or not must be left to the informed discretion, good sense, and fairness of the trial judge. * * * ” 394 U.S. at 185, 89 S.Ct. at 973. We do not believe the trial judge abused his discretion in defining the limits of that inquiry in this case. While the judge did not allow appellant to search the F.B.I. files, he did require the F.B.I. case agents to search their Baker case files to determine whether any tainted information was contained in those files. When the agents disclosed that two excerpts from the logs were found in the files, the judge then allowed further cross-examination in relation to these items. After this testimony, the judge concluded that “neither [item] relate[d] to any of the evidence used by the Government at trial. [The items] were neither made the basis of any investigation or investigative leads in the Baker case, nor disseminated outside the Washington Field Office of the FBI.” Giving due consideration to the ample opportunity which appellant had to probe the source of each questioned item, and the Government’s exhaustively detailed and plausible account of the independent source for each challenged aspect of the evidence, we find that the trial judge did not abuse his discretion in limiting the inquiry in this manner. We conclude that the evidence used at trial was not tainted. II Appellant also contends that the trial judge erred in holding that the information used to cross-examine Baker with regard to a trip to Los Angeles and Las Vegas was derived from an independent source. The trial court allowed a thorough investigation of the Government attorney’s story explaining his discovery of the facts he used to cross-examine Baker. The court’s findings are set out in detail in Part II of Appendix A. While it seems that both Government counsel were aware of the tainted information prior to the trial, it is clear from the record before us that counsel discovered the conflicting evidence during a routine search of untainted information contained in the files. That search was prompted by defense counsel’s outline of his case in his opening statement. The trial court credited Government counsel’s testimony, and we see no reason to upset its determination. We conclude, therefore, that the information used during the cross-examination of Baker was not “ ‘come at by exploitation of [the illegally monitored conversations but] instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); see Silver-thorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). Ill During the course of the remand hearing appellant also made a motion for a new trial on the basis of newly discovered evidence offered during the trial of a related case in the District Court. The circumstances surrounding that motion and the conclusions the trial judge reached are recited at length in his opinion denying the motion, which we adopt and include as Appendix B to this opinion. We agree with the trial judge that no “newly discovered evidence” was presented to the District Court. All of the evidence adduced at the related Jones trial was available to appellant before his trial. Indeed, much of it is merely cumulative of evidence introduced at his trial. Even if all the Jones evidence as such was not actually available, it could have been discovered from the part that was. Assuming the Jones evidence was newly discovered, we would still find no reason to grant a new trial. First, we do not agree with appellant’s contention that Bromley was coerced into allowing the Government to monitor his conversations. Bromley’s attorney was a former Government prosecutor, and had advised his client to take the course of action which the attorney felt was least likely to result in a criminal prosecution of Bromley. The mere fact that Bromley allowed the monitoring in the hope that doing so would preclude a criminal prosecution does not of itself vitiate Brom-ley’s consent to the monitoring. Furthermore, the only monitoring to which Baker could object was that which took place during a meeting of Baker, Bromley and Jones in the Beverly Wil-shire Hotel. No physical copies of the transcripts of that conversation were ever introduced in court. Bromley himself testified about the meeting. If Brom-ley’s testimony had been based solely on his independent recollection of that meeting, Baker could not object. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). However, appellant argues that in effect the transcript of the monitoring was introduced at trial through Bromley’s testimony. Assuming that the logs were used in court, Baker cannot object. The Supreme Court has held that it is constitutionally permissible to use monitored transcripts to substantiate the testimony of consenting informers who were parties to the conversations in question. Lopez v. United States, 373 U.S. 427, 438-440, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). We con-elude, therefore, that the District Court was justified in denying a new trial. APPENDIX A United States District Court for the District of Columbia United States of America v. Robert G. Baker Criminal No. 39-66 On Remand From No. 21,154 (United States Court of Appeals) FINDINGS OF FACT AND CONCLUSIONS OF LAW This case was remanded for further hearings on the defendant’s motion to suppress fruits of concededly illegal eavesdropping devices. The remand deals with two separate aspects of the motion to suppress. First, the Court of Appeals held that the defendant was entitled to inspect the records of all conversations intercepted through the device in the suite of Fred Black in the Sheraton Carlton Hotel in Washington, D. C. At the pre-trial hearing, thé defendant had received those logs reflecting his own .conversations and those of unknown conversants. The Court of Appeals also permitted the defendant to examine those logs from the devices placed in the offices of Benjamin Sigelbaum in Miami, Florida, and Edward Levinson in Las Vegas, Nevada, which reported conversations with unknown conversants. All such logs have been provided to the defendant. Second, the Court of Appeals remanded for further consideration the question of whether the monitoring of the telephone call from Baker to Levinson reported in the Las Vegas log on November 1, 1962, tainted the cross-examination of the defendant as to his whereabouts on the weekend on November 2, 1962. If any taint were found, this Court was directed to determine whether it was prejudicial. This Court held an evidentiary hearing during the week of December 16, 1968. Pursuant to defendant’s motion, further testimony was adduced on April 16, 1969. Based on the opinion remanding the case, the record and the hearings held pursuant to the remand, the Court enters the following findings of fact and conclusions of law: FINDINGS OF FACT 1. During the relevant period, the Grand Jury investigation concerning the Baker case was in the charge of three Department of Justice attorneys: William O. Bittman, Donald Page Moore, and Austin Mittler. The trial was conducted by Messrs. Bittman and Mittler. Two Internal Revenue Special Agents were assigned to the Baker case in the Fall of 1963: Joseph Rosetti and Donald Iver-son; they remained on the case through the trial. The Federal Bureau of Investigation opened its case on October 3, 1963. The case agent in the Washington Field Office from that time until January, 1966, was Paul Kenneth Brown. Agent Brown made investigations as requested by the Department of Justice. These requests were normally in writing. 2. Mr. Bittman was not informed that the defendant’s conversations had been picked up by eavesdropping devices until September or October of 1965. The information was supplied as the result of a written inquiry motivated in part by defendant’s revelation of the Levinson eavesdropping device before the Senate Rules Committee. 3. The FBI informed Mr. Bittman of the Black, Levinson, and Sigelbaum devices and showed him the basic logs on these devices at FBI Headquarters. He did not make copies or notes. He did not review his Department of Justice files when he returned to his office, and he has no recollection of ever having seen any of the illegally obtained conversations in his prosecution files. 4. Prior to this remand hearing, the defendant had an opportunity to examine all the records of conversations from the Edward Levinson and Benjamin Sigel-baum surveillances in which one of the participants was unidentified. 5. The defendant, in pleadings filed prior to this hearing, selected from these materials four conversations monitored during the course of the Sigelbaum surveillance (on April 18, 1963, February 14 and 19, 1964, and May 20, 1965) and two conversations monitored during the course of the Levinson surveillance (on November 9, 1962, and December 10, 1962) as conversations in which he, the defendant, was the unidentified participant. 6. At the remand hearing the defendant testified that: (a) He was not the unidentified person in the April 18, 1963, Sigelbaum log, and he was not the unidentified party in the November 9, 1962, Levin-son log. (b) He was the unidentified person in the May 20, 1965, Sigelbaum log. (c) He might have been the unidentified person in the remaining conversations which he had selected prior to the hearing. 7. With respect to the conversations reflected in 6(b) and 6(c) above, the defendant failed to show at the evidentiary hearing that any of the information contained in those conversations led, directly or indirectly, to any evidence used by the Government at the trial of this case. 8. Prior to this hearing, the defendant had an opportunity to examine all the records of conversations overheard by the FBI during the electronic surveillance of the Sheraton Carlton Hotel suite of Fred Black, Jr. 9. The defendant in pleadings filed prior to the hearing selected from these records eight items which he alleged had some relevance to the trial of the instant case. At the hearing itself, defense counsel was able to indicate only that the names of Edward Bostick and Melpar, Inc., and their relationship to each other, appeared in these records and the same Edward Bostick was a witness called by the Government at the trial of this case. 10. The defendant has made no showing that the items which mention Bos-tick and Melpar led, directly or indirectly, to the evidence used by the Government at trial. 11. The Baker case files at FBI Headquarters contain no information whatever pertaining to either Bostick or Mel-par which emanated from the Black surveillance. 12. The Baker case files of the Washington Field Office of the FBI contain one item relating to Bostick and one item mentioning Melpar, Inc., which did emanate from the Black surveillance. However, neither relates to any of the evidence used by the Government at trial. They were neither made the basis of any investigation or investigative leads in the Baker case, nor disseminated outside the Washington Field Office of the FBI. 13. Both Edward Bostick and Melpar, Inc., first became known to Paul Kenneth Brown, the FBI Baker case agent, on October 3, 1963, during his interview of Ralph Hill — the first interview conducted by the FBI in this case. His interview of Hill was conducted at the specific request of the Criminal Division of the Department of Justice a week prior to the receipt of it,ems from the Black surveillance which mentioned Bostick and Melpar, Inc. 14. Edward Bostick’s trial testimony —which included testimony about Mel-par — was based upon testimony which he had given in 1964 before the Senate Rules Committee in the course of their hearings into the Baker matter. The content of Bostick’s trial testimony conforms in all material respects to his Senate Rules Committee testimony. II. A. Cross-Examination of Robert G. Baker re November 2, 1962 15. The Government’s chief prosecutor, William 0. Bittman, first saw the original log containing the November 1, 1962, overhearing sometime in September, 1965, at the FBI office in Washington, D. C. The FBI had picked up defendant’s voice in connection with organized crime investigations. 16. Assistant Government prosecutor Austin S. Mittler first saw the original log containing the November 1, 1962, overhearing by the FBI sometime during 1966 after a motion to suppress had been filed by the defendant. 17. Prior to the hearing on the defendant’s motion to suppress, a verbatim copy of the November 1, 1962, log was made available to defense counsel and the Court. During the hearing held in November, 1966, in connection with the defendant’s motion to suppress, the conversation of November 1, 1962, became the subject of testimony. 18. The Government first learned on Thursday, January 19, 1967, when defense counsel, Mr. Williams, made his opening statement, that Mr. Baker’s defense would, in part, be that he was in Los Angeles, California, on the weekend of November 2, 3, and 4 of 1962; that he returned to Washington, D. C., on November 4; and that on the morning of November 5 he gave to Senator Kerr an envelope containing $16,200. 19. Government counsel then began to review his files to check the authenticity of this representation. On Friday, January 20, 1967, Government counsel, Austin Mittler, found an FBI report which disclosed the existence of a folio card for the defendant at the Beverly Hills Hotel in Los Angeles, California, for November 4, 1962. 20. Government counsel then found the original folio card of the Beverly Hills Hotel in the Government’s Documents file. 21. This card indicated on its face that the defendant checked out of the Beverly Hills Hotel in Los Angeles, California, at 8:06 P.M. on November 4, 1962. Defendant could not have been in Washington, D. C., on that date. 22. Neither the FBI report which disclosed the existence of the folio card for the Beverly Hills Hotel nor the folio card of November 4, 1962 (Gov’t Ex. 1-A) is tainted. No motion was made at trial to strike that part of the cross-examination which related to Mr. Baker’s presence in Los Angeles, California, on November 4, 1962. These documents were obtained routinely by the Government in 1965 during the course of its Grand Jury investigation in this case. 23. After seeing the folio card, Mr. Bittman, chief Government counsel, asked Mr. Mittler to see if he could determine the defendant’s whereabouts prior to November 4 — specifically on November 2 and November 3. 24. Later that evening, Mr. Mittler found a schedule of telephone calls made by the defendant which reflected that Mr. Baker had made two telephone calls on November 2, 1962, from Las Vegas, Nevada. The telephone schedule had been compiled from untainted sources by the FBI in 1965 as a part of the Grand Jury investigation in this case. 25. Mr. Mittler showed the November 2 telephone calls to Mr. Bittman, who then requested that someone contact the Sands Hotel in Las Vegas to see whether the Sands had a registration card for Mr. Baker for that date. 26. Mr. Bittman specifically requested the Sands Hotel record because: (a) The Government had previously obtained hotel records from the Sands which indicated that Mr. Baker had stayed there in April, 1963. These records were untainted, having been obtained routinely during the Grand Jury investigation in this case. In fact, one such record was stipulated into evidence at the trial of this ease. (b) He previously had been told by Wayne Bromley that Baker usually stayed at the Sands Hotel when in Las Vegas, Nevada. 27. That evening, Friday, January 20, 1967, Donald Iverson requested that an Internal Revenue Service agent in Las Vegas, Nevada, go to see whether the Sands Hotel had a registration card for Mr. Baker. 28. Later that evening, Mr. Iverson received a return call from Las Vegas, Nevada, and was told that a record had been found for Mr. Baker at the Sands Hotel in Las Vegas for November 2-4, 1962. 29. Thereafter, Mr. Iverson received a microfilm copy of that record. 30. This exhibit (Gov’t Ex. 3) and the Beverly Hills folio card together formed the basis of the cross-examination of Mr. Baker during the trial as to his whereabouts over the weekend of November 2-November 4, 1962. This evidence was untainted. CONCLUSIONS OF LAW Upon consideration of the additional evidence adduced as a result of the remand and the findings heretofore made, the Court concludes: 1. That the Government has established by clear and convincing evidence and beyond a reasonable doubt that it had an independent source for its trial evidence relating to Bostick and Melpar, Inc.; 2. That none of the other conversations revealed by the remand have any relevance to the charges in this indictment ; and 3. That none of the items used in the cross-examination of the defendant respecting his Las Vegas trip were tainted. The Government has established by clear and convincing evidence beyond a reasonable doubt that it had an independent source. The Court’s finding that the Government had an independent source makes it unnecessary to deal with the alternate question of whether, assuming the evidence should have been excluded, the corrective instruction was sufficient to cure any potential prejudice. Nevertheless, the Court has considered this issue and concludes that: (a) The defendant when confronted with evidence that he was in Las Vegas on November 2-4, 1962, rather than in Los Angeles as he had testified on direct, said without hesitancy: “It is entirely possible” and when asked whether he did any gambling responded, “I am sure that I might have. People normally do.” Defendant was an unruffled and confident witness. It was brought out that defendant made many trips across the country. It is only about a forty-minute flight from Los Angeles to Las Vegas and that he probably went to Las Vegas from Los Angeles. (b) The Court granted defendant’s motion to strike out of an abundance of caution and to give the defendant the benefit of whatever doubt existed at that time and prior to this evidentiary hearing. (c) When this brief segment of the trial (the transcript of the testimony is about a page or two out of a total transcript of 3,399 pages) is considered in its proper perspective, the Court finds defendant could not have been prejudiced by it, for beyond a reasonable doubt it was harmless. Oliver Gasch Judge Date: May 21st 1969 APPENDIX B United States District Court for the District of Columbia United States of Amercia v. Robert G. Baker Criminal No. 39-66 MEMORANDUM Defendant Baker has moved this Court for a new trial based on newly discovered evidence. He offers as new evidence the suggestion that testimony before another judge in a subsequent trial involving Clifford Jones on charges of perjury indicates that this Court might have been unconsciously misled as to the admissibility of certain testimony in Mr. Baker’s case. He then argues that this new evidence is material and requires the granting of a new trial because it brings the facts within the principles set forth in the Laughlin case and under the theory of that part of Katz which is unaffected by Desist (as represented in the White decision). The matter was briefed and argued in open Court. Defendant was granted permission to introduce into evidence transcripts of testimony from the case of United States v. Jones. Upon consideration of the briefs, argument, record and exhibits, the Court finds the proffered new evidence to be neither new, nor material and accordingly will deny defendant’s motion. Defendant’s position is that Wayne Bromley, a Government witness in this ease, did not consent to have his phone conversations with Clifford Jones monitored by the Government. On the contrary, defendant argues, Bromley was coerced by the Government into taking this action and accordingly, the conversations and their fruits should have been suppressed. During the trial of this case, Mr. Brom-ley appeared as a witness for the Government and testified that after consulting with his attorney, Mr. Mark Sandground, he decided to cooperate to the extent of requesting the Government to monitor a telephone conversation between him and Clifford Jones. The conversation itself had little or no materiality to the issues in the Baker case. It led, however, to a meeting in the Beverly Wilshire Hotel in Los Angeles between the defendant Baker, Clifford Jones, and Wayne Brom-ley in March, 1965. On this occasion, Bromley wore an electronic device, placed on him by the Government for the purpose of transmitting conversations within its range to an outside point where they were to have been recorded by the Government. The device malfunctioned and as a result, the recordings were of little or no value. First, no evidence has been brought to this Court’s attention which may in any realistic sense be considered new: at best it is cumulative; in part it is irrelevant; most of it is consistent with that which was presented earlier. Defendant cites several portions of the later testimony but in each instance it is for the purpose of arguing that the circumstances surrounding Bromley’s consenting to have his phone monitored were more coercive than this Court originally understood. This evidence was in substance either presented to this Court earlier or was implied in that primary information which was presented or is irrelevant to the earlier proceeding. The testimony now referred to is not new. The main contention of the defense is that only after extensive inquiry during the course of the hearing on the pretrial motions in United States v. Jones did it learn that Bromley’s attorney, Mark Sandground, was subjected to intensive pressure by the Government as a result of which he agreed to cooperate and that because of this pressure his cooperation was coerced and therefore involuntary. The Government points out that Sandground could have been called as a witness by the defense in the Baker case and that such action would have disclosed whether or not Sandground would have refused to answer because of the confidential relationship between attorney and client. In the absence of such showing, it cannot be presumed that Sandground’s testimony would have been unavailable to the defense. The Government also points out that Government counsel adhere to the position previously taken, namely, that there was extensive discussion between them and Sandground as a result of which Sandground in attempting to find out the factual situation with which his client Bromley was confronted did learn much of the Government’s evidence, as a result of which he acted in what he considered to be the best interests of his client, offering to have his client cooperate with the Government in the hope that his client would not be indicted. Sandground’s subsequent testimony is not in conflict with this position. No promises were made and the fact that cooperation was forthcoming does not make Bromley’s action involuntary or bring it within the scope of Judge Youngdahl’s opinion in the Laughlin case. That case held that an uncounseled witness could be coerced by circumstances including threats of prosecution into involuntarily aiding the Government. It did not hold that in every situation in which a potential witness might be prosecuted, that witness’ awareness of the facts would vitiate his consent. In the instant case, significantly, Bromley is an attorney and was at all times represented by experienced counsel who was a former prosecutor. They made a reasoned decision in light of all the circumstances, that Bromley’s best interests would be served by cooperating. There is no indication that Bromley showed any reluctance in reaching that decision, or any regret in having made it. Second, counsel takes the position that these conversations were material and likely to affect the outcome since they were utilized to refresh Bromley’s recollection before he testified before the Grand Jury and further that Government counsel utilized Bromley’s Grand Jury testimony to refresh his recollection concerning his testimony during the trial. Whatever may have been the importance of the Jones-Bromley telephone conversations in the Jones case, (it should be noted that those conversations involve the essential issue of corroboration required in a perjury case), here, they were of negligible value and of no evidentiary significance. The phone conversation did lead to the subsequent meeting at the Beverly Wilshire Hotel. But the tap on the conversation did not have any causal connection with the subsequent meeting. The malfunctioning of the electronic device reduced the recording of the conversations to little or no significance. It seems highly questionable to the Court that this fragmentary recording on a malfunctioning electronic device is of any significance compared with the recollection of the witness Bromley himself which was the subject of his Grand Jury testimony shortly thereafter. In view of the opinion of the Supreme Court in Desist, limiting Katz to prospective application only, we must look to the state of the law at the time these events happened in the Beverly Wil-shire Hotel in 1965. It seems that Baker took the risk of his meeting on that occasion with Bromley and having taken the risk is in no position today to demand a new trial because of his lack of knowledge that Bromley was cooperating with the Government. Oliver Gasch Judge Date: May 29th 1969 . Baker v. United States, 131 U.S.App.D.C. 7, 33, 35, 401 F.2d 958, 984, 986 (1968). . 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). . Id. at 183, 89 S.Ct. at 972. Alderman, requires the Government to turn over to the defendant all logs of illegal monitoring which involve “a defendant’s own conversations and * * * those which took place on his premises.” 394 U.S. at 184, 89 S.Ct. at 972. That much was done here in accordance with the terms of our remand. . The remand hearing was not the only opportunity appellant had to challenge the origins of the Government’s trial evidence. The remand hearing concerned logs of conversations monitored at the offices of Benjamin Sigelbaum in Miami and of Edward Levinson in Las Vegas, and at the hotel suite of Fred Black in Washington, D.C. Other logs from these same sources had been the subject of intensive investigation during a motion to suppress before the trial. At that time appellant had questioned the F.B.I. agents who had done the actual monitoring and their supervisors. In relation to the logs which were turned over prior to trial, this court concluded: “We have reviewed the record and are satisfied that, as to those records which were turned over to the defense, there was ample warrant for the trial judge’s finding that the overheard conversations had no connection with the matters alleged in the indictment. We find no indication, despite appellant’s contention to that effect, that the court improperly limited the scope of the hearing by foreclosing inquiry into the use made of the illegally seized materials. To the contrary, appellant was given every opportunity to question the agents who monitored the devices as well as those who supervised the surveillance, and to trace the ‘bugged’ material through the F.B.I. files and channels of information. Despite all this, the evidence at the hearing revealed not the slightest connection between appellant’s illegally-intercepted conversations and the charges in the indictment. Moreover, the Government introduced evidence, not controverted by appellant, that legitimate independent sources of information gave rise to the indictment and led to the proof supporting the various charges. In short, we think the pretrial hearing was both full and fair, insofar as it related to those logs that had been delivered to the defense.” 131 U.S.App.D.C. at 30, 401 F.2d at 981. (Footnote omitted.) That description applies equally well to the hearing on remand. . The additional logs which appellant seeks to use to prove taint mentioned the names of Edward Bostick and Eugene Hancock, and the fact that they were associated with certain companies which figured in the prosecution of Baker. The Government demonstrated that its investigation of these individuals was prompted by a civil suit against Baker by Capital Vending. Government agents testified that Ralph Hill, who had signed the civil complaint for Capital Vending, was interviewed by the F.B.I. as a result of the publicity surrounding the suit. Hill disclosed the relationship among Baker, Bos-tick and Hancock and their respective companies at this interview. As a result of this interview, the F.B.I. opened a Field Office case file on Baker. It was clear from the testimony at the remand hearing that the prosecution’s investigation was triggered by this suit and the resulting publicity, not by the illegal taps. The information used at trial derived either from this F.B.I. investigation or from other investigations — such as the Senate hearings — -which subsequently inquired into Baker’s dealings. . IVe deal with his alternative contention —that the trial court itself should have inspected these records in camera — in Xote 7, infra. . While we do not disapprove of the trial judge’s decision in this case, we might consider it better practice for the court to make an in camera inspection of such files under different circumstances. This case was unusual. There were only three sources of tainted information. At the original trial the able defense counsel had been able both to question the agents who did the actual monitoring and their supervisors 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_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. In re 4500 NORTH HERMITAGE AVE. APARTMENTS CORPORATION. CLOVERDALE STATE BANK et al. v. SCHWEERS et al. No. 7406. Circuit Court of Appeals, Seventh Circuit. March 20, 1941. Arthur Abraham, of Chicago, 111., for appellants. Irving S. Abrams, of Chicago, 111., for appellees. Before SPARKS and KERNER, Circuit Judges, and BALTZELL, District' Judge. BALTZELL, District Judge. On February 25, 1937, an involuntary petition under Section 77B of the then existing Bankruptcy Act, 11 U.S.C.A. § 207, was filed in the district court by three creditors of the 4500 North Hermitage Avenue Apartments Corporation,- a corporation (hereinafter referred to as the debtor), one of which creditors was appellant, Clover-dale State Bank. The amount of the claim of such bank, as shown by the petition, was $19,500. It was the intent and' purpose of the creditors filing the petition to perfect a reorganization of the debtor pursuant to the provisions of Section 77B of the Bankruptcy Act. The business of the debtor was owning, leasing and operating an apartment building located at 4500 North Hermitage Avenue, in the city of Chicago, Illinois. On May 7, 1937, the district' court approved the petition as having been filed in good faith and, on May 18, following, the Consolidated Bondholders Committee which had theretofore been granted leave so to do, filed a proposed plan of re-organization. Certain amendments to the plan, as originally filed, were made, and, on May 6,1938, the plan, as amended, was confirmed by the court. By. the terms of such amended plan, a new corporation to be known as the Hermitage Avenue View Apartments, Inc. (hereinafter referred to as the new corporation), was to be organized and the property transferred to it. The outstanding bonds of the debtor, some of which were of the Belvidere issue, and some of which were of the Hermitage issue, were to be exchanged for stock in the new corporation, all of which stock was to be held by three voting trustees to be selected and approved by the district court under a five-year voting trust agreement. The bonds were then to be cancelled and certificates of beneficial interest were to be issued by the voting trustees to all holders of bonds thus surrendered and cancelled in the ratio of one unit of beneficial interest, evidencing the holding by the voting trustees of one share of the common capital stock in the new corporation for each $100 par value of bonds theretofore held by the bondholders. This provision applied to holders of bonds of the Belvidere issue who had not exchanged such bonds for bonds in. the Hermitage issue, as well as bonds in the Hermitage issue. The property of the debtor was transferred to the new corporation, and Malcolm Schweers, Louis E. Nelson and Saul R. Optner, appellees, were named voting trustees under the terms of the amended plan, qualified as such, and are now acting in that capacity. On May 25, 1939, the appellants, The Bond & Mortgage Liquidation Corporation, and the Cloverdale State Bank, respectively, filed a petition in the bankruptcy proceeding in the district court, in which petition it is alleged that the former is entitled to certificates of beneficial interest representing 127.2 shares of the common capital stock of the new corporation, and that the latter is entitled to certificates of beneficial interest in such corporation representing 185 shares of such common capital stock. It is further alleged that no provision was made in the decree of confirmation of the plan for the exchange of outstanding bonds and capital stock of the debtor for the certificates of beneficial interest, and that such exchange should be made. The voting trustees and the new corporation filed objections to such petition, and, among other things, prayed “that the claim of the Cloverdale State Bank be vacated, set aside and declared for naught,” Such petition and objections, together with the answer of the bank to such objections, were referred to the Special Master, who had theretofore been appointed under a general reference, for hearing and report. The Master filed his report on November 13, 1939, in which report, among other things, he found “from all the evidence, the Cloverdale State Bank is the owner of the bonds of the Belvidere issues Nos. 91, 92 and 93, aggregating a principal of $1,-500.00, and of bonds 29 and 34 of the Hermitage issue in the aggregate principal of $1,000.00, and of bonds 100 to 128 of the Hermitage issue in the principal amount of $14,500.00, * * * and that said bonds are not subject to any defenses in the hands of the Cloverdale State Bank.” In effect, the report recommended the allowance of the claim of appellant, Cloverdale State Bank, in the sum of $17,000, to which report the voting trustees and the new corporation filed objections. The Consolidated Bondholders Committee also filed separate objections. On December 29,1939, the district court overruled the objections, approved the report and ordered that the claim of the bank be allowed in full, as recommended by the Master, and that certificates of beneficial interest be issued by the voting trustees to the bank in exchange for bonds aggregating the principal sum of $17,-000. On January 12, 1940, the voting trustees, as such and as officers and directors of the new corporation, filed a petition in the district court in which it sought to have the court vacate and set aside the order in which it had approved the report of the Master and allowed the claim of the bank, and to grant a rehearing, which petition was granted, such order vacated and set aside, and a rehearing was had before the court. As a result of such rehearing, the court entered a decree allowing the claim of appellant, bank, in the sum of $2,500, and disallowing its claim in the sum of $14,-500, being the amount represented by bonds numbered 100 to 128, both inclusive, of the Hermitage issue, from which decree disallowing such claim this appeal is being prosecuted. The sole question presented is whether or not the district court properly denied such claim. On February 10, 1926, Charles H. Shaefer and Anna D. Shaefer, his wife, and Fontella C. Jewett and Eugene F. Jewett, her husband, executed principal bonds in the aggregate amount of $90,000, being numbered 1 to 220, both inclusive. To secure the payment of such bonds they executed a trust deed to Russell Firebaugh, as trustee, conveying the real estate and improvements located at 4500 North Hermitage Avenue, Chicago, Illinois, being the same real estate and apartment building which was afterwards owned by the debtor and which is now owned by the new corporation. The apartment building was then known as the Belvidere Apartments, and the bond issue was known as the Belvidere issue. The bonds were bearer bonds and were sold to the general investing public by The Bond & Mortgage Company, a corporation, of which Russell Firebaugh was president at the time of the sale of such bonds. Afterwards, default was made in the payment of such bonds and the interest thereon. Under the terms of the trust deed, the trustee, Russell Firebaugh, on September 5, 1929, instituted foreclosure proceedings in the Superior Court of Cook County, Illinois, and a decree of foreclosure and sale was entered in such proceedings on January 20, 1930. Pursuant to the provisions of such decree a sale of the premises was had on February 12, following, at which sale Russell Firebaugh, as trustee, bid in such property for the benefit of the bondholders, as he had a right to do under the terms of the trust deed. No cash was paid by him nor were any bonds deposited by him with the Master at the time of the sale or at any other time. He simply applied the bid made by him as against the amount due to all of the bondholders, as shown by the decree. This sale was afterwards approved by the Superior Court. The Master making the sale issued a certificate of sale to Russell Firebaugh, as trustee, under date of February 13, 1930. Before the period of redemption had expired, Firebaugh, as trustee, assigned such certificate to Paul F. Rogge without any consideration and without the knowledge or consent of the bondholders, or any of them, for whom he was holding such property as trustee. No authority for this transfer can be found in the trust deed and it is entirely beyond the powers created by that instrument. Shortly after the assignment, Rogge and his -wife proceeded to execute bonds numbered 1 to 231, both inclusive, in the principal amount of $98,000. To secure the payment of such bonds they executed a trust deed on May 9, 1931 to Russell Firebaugh, as trustee, conveying the real estate and improvements described in such certificate of sale, notwithstanding the facts that the period of redemption had not yet expired and that Rogge held no deed for such property, the Master’s deed not having been delivered to him until February 17, 1932. These bonds, both principal and interest, were to be paid at the office of The Bond & Mortgage Company, of which company Russell Firebaugh was-at that time president. There was also a provision in the deed that, “In the event of the resignation, refusal, disqualification or other inability orincapacity of the trustee to act as such trustee when and while services shall be required of him under any of the provisions hereof, then the then president of the Bond & Mortgage Company or the president of any successor to said Bond & Mortgage Company shall be and is hereby appointed successor in trust to said trustee * * At the time of this bond issue (referred to herein as the Hermitage issue, the name of the apartments having been changed from the Belvidere to the Hermitage), there was due under the former bond issue (referred to herein as the Belvidere issue) the principal amount of only $79,500, or $18,500 less than the principal amount of the Hermitage issue. Of the Belvidere issue, there were exchanged for bonds of the Hermitage issue, the principal amount of $56,000, leaving bonds of the Belvidere issue outstanding of the principal amount of $23,500. Bonds of the Hermitage issue in that amount, that is, in the principal amount of $23,500, which were not exchanged for bonds of the Belvidere issue, were delivered up and can-celled in the reorganization proceedings in accordance with the terms of the plan of reorganization, as confirmed by the court, and the certificates of beneficial interest were to be issued by the voting trustees of the new corporation to the holders of bonds (not exchanged) in that amount of the,Belvidere issue. It will be seen, therefore, that of the Hermitage issue, there has been accounted for the principal amount of $79,-500 of such bonds, that is, $56,000 exchanged, and $23,500 cancelled. Deducting this amount from the entire issue (Hermitage), that is, from $98,000, leaves a difference of $18,500, which represents the amount of the excess of the Hermitage issue over the principal amount due under the Belvidere issue. The bonds representing this amount were retained by The Bond & Mortgage Company, the president of which, as heretofore stated, was Russell Firebaugh, who was also trustee named in the trust deed, for which bonds it advanced no money and paid no consideration. Among the bonds thus retained by it were bonds numbered 100 to 128, both inclusive, in the principal amount of $14,500, which afterwards came into the possession of appellant, Cloverdale State Bank, and which constitute the claim of the bank which was denied by the district court. On January 4, 1932, The Bond & Mortgage Company executed its promissory note in the principal sum of $50,000, payable to Estelle R. Firebaugh, mother of Russell Firebaugh, and, on December 23 of the same year it executed another promissory note in the principal sum of $24,626.29, payable to her. The consideration for these notes, as shown by the testimony of Russell Firebaugh, was certain advances which she had made to the company from time to time prior to their execution. To secure the payment of the $50,000 note and as collateral thereto there was pledged by the company the aforesaid bonds numbered 100 to 128, both inclusive. To secure the payment of the $24,626.29 note and as collateral thereto, there was pledged by the company the entire capital stock of the appellant, Cloverdale State Bank, all of which was owned by The Bond & Mortgage Company. Upon default in payment of these two notes, Estelle R. Firebaugh, through her son, Russell Firebaugh, as her agent,, offered for sale the collateral pledged in accordance with the terms of the pledge-agreement, and she purchased the same-through her said agent at such sale, her bid being the sum of $2,500 for all collateral, both the bonds and the bank stock. She later transferred the bonds in question, through her said agent, to appellant, Cloverdale State Bank, which transfer was made without any consideration. The fact is, that the bank, whose president, at one time, was Russell Firebaugh, had not been actively engaged'in the banking business or any other business since July, 1926, when its assets were ordered restored to it by the Circuit Court of Sangamon County, such assets having been theretofore taken over by the State Auditor of Public Accounts. A receiver was appointed for The Bond & Mortgage Company on January 14, 1933, and all of its assets were purchased by appellant The Bond & Mortgage Liquidation. Corporation. The district court concluded that Estelle R. Firebaugh was not an innocent holder for value without notice, and that appellant, Cloverdale State Bank, took bonds numbered 100 to 128, both inclusive, subject to-all defenses. With these conclusions we-are in accord, there being substantial evidence to. sustain* them. It is appellants’ contention that The Bond. & Mortgage Company expended a considerable sum of money in the operation of the Hermitage property and for legal expenses, maintenance, interest, etc., for which it was not reimbursed, and that the amount of money thus expended, over and above any reimbursements, is sufficient to constitute a valuable consideration for such bonds which were in the possession of such company at all times after their issue until pledged with Estelle R. Firebaugh. In answer to this contention the evidence fully supports the contention of appellees that The Bond & Mortgage Company was operated by Russell Firebaugh, its president, and that all acts were done by and through him -r that the company collected the rents from such property for some time both prior to and after the appointment of a receiver by the Superior Court in the foreclosure proceedings; that it had been reimbursed for all expenditures; that it was, in fact, indebted to the bondholders of the Belvidere issue, and that, therefore, it paid no consideration for the bonds in question. It seems that Russell Firebaugh was the person who planned and executed all of the various transactions which finally resulted in appellant, Cloverdale State Bank, acquiring possession of these bonds. The ramifications are so extensive that they are really difficult to comprehend; however, it is apparent that each move was preconceived by him with the ultimate purpose in mind of profiting by such transaction without regard to the interest of the owners of the property or of the bondholders. It was -he who was named trustee in the Belvidere bond issue; it was he, through the company of which he was president, who sold these bonds to the investing public and collected the rent from the apartments for a considerable length of time; it was he, as trustee, who instituted the foreclosure proceedings in the Superior Court and obtained a decree of foreclosure and sale upon default in the payment of such bonds; it was he, as trustee, who purchased the property at the foreclosure sale for the benefit of the bondholders; it was he, as trustee, who received from the Master a certificate of sale for such property and within a short time thereafter transferred this certificate to Rogge without any authority so to do, without consideration, in violation of his trust and within the period of redemption; it was he who was named trustee for the bondholders in the trust deed executed by Rogge in the Hermitage bond issue of $98,000, or $18,500 more than was necessary to retire the Belvidere issue; it was The Bond & Mortgage Company, of which he was president and had control, that retained possession of the excess bonds which included the bonds in question until they were pledged as collateral with his mother to secure the payment of a pre-existing debt evidenced by a promissory note of that company under date of January 4, 1932, but for which bonds no consideration was paid by either himself or the company of which he was president; it was he, together with the secretary of the company, Ida Wagner, who had authority to visit the safety deposit box of his mother, and who, in fact, did visit the box, depositing therein and withdrawing therefrom certain securities as her agent; it was he, acting as agent for his mother, who offered the bonds in question and the stock of appellant, Cloverdale State Bank, for sale, pursuant to the terms of the pledge agreement; it was he, acting as agent for his mother, who purchased such bonds and stock for her, after having given certain parties notice of such sale and signing the name of his mother thereto as “her duly authorized agent”; it was he who, acting as agent for his mother, transferred such bonds to appellant, Cloverdale State Bank, without consideration, the entire capital stock of which bank was then owned by his mother, etc. Estelle R. Firebaugh did not personally participate in any of these transactions; and neither did she appear in court or before the Master in any of the hearings, she being represented at all times by either her son, Russell, or by Ida Wagner, each of whom was her agent, each of whom had actual knowledge of all transactions pertaining to the bonds in question, and each of whom knew of all defects in the title of The Bond & Mortgage Company thereto. Ida Wagner is the Secretary and Treasurer of The Bond & Mortgage Liquidation Corporation, the corporation which purchased all of the assets of The Bond & Mortgage Company, and she was secretary of that company before the sale of its assets. Furthermore, Estelle R. Firebaugh was the owner of a portion of the capital stock of The Bond & Mortgage Company during all of these transactions. It is apparent that Russell Firebaugh, personally and as president of the Bond & Mortgage Company, had actual knowledge of the fact that no consideration was paid by such company for the bonds in question at the time they were taken into its possession, or at any other time, and that such company was not the owner of such bonds in due course. It is also apparent that, as agent of his mother, Estelle R. Firebaugh, he knew at the time such bonds were pledged to her as collateral to secure the payment of the $50,000 note of The Bond & Mortgage Company that such company had such bonds in its possession only, and was not the owner thereof for a valuable consideration, but that no consideration whatever was paid for them by the company. With this knowledge upon his part, as agent for his mother, he accepted such bonds for her and deposited or had them deposited for her in her safety deposit box. It is further apparent that Ida Wagner, who was an officer in The Bond & Mortgage Company, and is the present Secretary and Treasurer of The Bond & Mortgage'Liquidation Corporation, also acted as an agent for Estelle R. Firebaugh in the handling of these bonds and other of her securities which were deposited in her safety deposit box and withdrawn therefrom by her as such agent. Notice to the agents of Estelle R. Firebaugh was also notice to her. It necessarily follows that she had notice of the defects in the title to the bonds in question, that is, that The Bond & Mortgage Company had paid no consideration for such bonds, was not the owner thereof, but simply had possession of them. She was not, therefore, an innocent holder of such bonds in due course without notice. See Wollenberger et al. v. Hoover et al., 346 Ill. 511, 179 N.E. 42; Bouton et al. v. Cameron et al., 205 Ill. 50, 68 N.E. 800; Fischer v. Tuohy, 186 Ill. 143, 57 N.E. 801; Reilly Tar & Chemical Corporation v. Lewis, 301 Ill.App. 459, 23 N.E.2d 243; Greer et al. v. Carter Oil Co., et al., 373 Ill. 168, 25 N.E.2d 805. The bonds in question were acquired by the appellant, Cloverdale State Bank, a banking institution which had not functioned as such for many years, with notice or knowledge upon its part of all defects and without consideration. It is, therefore, not a holder in due course. First State Bank & Trust Co. v. First National Bank of Canton, 314 Ill. 269, 145 N.E. 382; In re Continental Engine Co. (Baird v. Smith), 7 Cir., 234 F. 58. Furthermore, all the capital stock of the bank was owned by Estelle R. Firebaugh, the person from whom the bank acquired such bonds. She had notice and knowledge of the defects in the title to such bonds at all times under consideration; therefore, such notice and knowledge is imputed to the bank. Simmons Creek Coal Co. v. Doran, 142 U.S. 417 at page 436, 12 S.Ct. 239, 35 L.Ed. 1063. It was not an innocent holder of such bonds in due course without notice, but acquired the possession thereof subject to all defenses. We agree with the finding of the district court that, “Estelle R. Firebaugh, Russell Firebaugh, as trustee and as president of The Bond & Mortgage Company, The Bond & Mortgage Company and Cloverdale State Bank were so interlocking of their control of The Bond & Mortgage Company and of the issuance, transfer and exchange of said bonds that they all had notices of the defenses to said bonds.” The claim of the bank was properly denied, and 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_procedur	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 rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. John K. LAWS, et al., Plaintiffs-Appellants, v. CALMAT, Defendant-Appellee. No. 87-6150. United States Court of Appeals, Ninth Circuit. Argued Feb. 4, 1988. Submitted May 4, 1988. Decided July 12, 1988. Richard A. Weinstock, Ventura, Cal., for plaintiffs-appellants. James A. Zapp, Deborah A. Sudbury, Paul, Hastings, Janofsky & Walker, Santa Monica, Cal., for defendant-appellee. Before ALARCON, FERGUSON and BEEZER, Circuit Judges. FERGUSON, Circuit Judge: John K. Laws (“Laws”) appeals the district court’s denial of his motion to remand to state court the lawsuit he initiated against his employer, Calmat Corporation (“Calmat”). In addition, he appeals the district court’s grant of summary judgment to Calmat. Laws argues that his right to privacy under the California State Constitution was violated by Calmat’s mandatory drug testing program. Laws argues that reversal is required because the district court erroneously found that his state law claim is preempted by section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, section 3102 of the Motor Carrier Safety Act (“MCSA”), 49 U.S.C. § 3102, and the United States Department of Transportation Regulations (“DOT regulations”) promulgated under the authority of the MCSA. We affirm the district court. I. Laws, a member of the Chauffeurs, Teamsters and Helpers Union Local No. 186 (“Union”), is employed by Calmat as a “concrete mixer-driver.” Calmat operates a building products and production facility in Oxnard, California. The Union and Cal-mat are parties to a collective bargaining agreement (“CBA”) governing the terms and conditions of employment for Calmat drivers, including Laws. On October 1, 1986, Calmat unilaterally implemented a “Drug and Alcohol Policy” which requires, inter alia, urinalysis testing of all current and prospective driver and non-driver employees (1) at all physical examinations required by Calmat and (2) at the discretion of a supervisor whenever any employee is involved in a work-related accident or injury, or when the physical condition of an employee is “in doubt.” Employees are expected to consent to testing “as a condition of continuing employment.” Refusal to be tested results in immediate suspension of the employee. A positive test will result in disciplinary action up to and including discharge. On April 2, 1987, Laws went to a Calmat physician for a physical examination in connection with renewal of his Class II driver’s license. Class II licenses are subject to federal regulation by the MCSA. DOT regulations require a physical examination, including urinalysis, for renewal of a Class II license. 49 C.F.R. 391.41-391.49. Laws declined to submit to a urine test at his Calmat physical and was suspended without pay for thirty days. He was informed by Calmat that a second refusal would result in his termination. Laws claims that his private doctor performed a urinalysis examination and that the result was negative. Apparently, Laws took a urinalysis test on April 28, 1987, was medically certified for his Class II driver's license, and returned to work on May 1, 1987. Laws did not attempt to grieve his dispute concerning his suspension or Calmat’s drug and alcohol policy. There is in fact no indication that he ever contacted the Union regarding the drug testing requirement or his own case. Instead, on April 22, 1987, Laws filed a class action suit in state court on behalf of himself and all Calmat employees. Laws sought to enjoin Calmat’s testing program on the grounds that the policy of testing all employees — regardless of whether or not they were suspected of drug or alcohol abuse — was in violation of Laws’ and all Calmat employees’ right to privacy as set forth in Article I, Section 1 of the California State Constitution. Laws did not pray for damages resulting from his suspension but only sought declaratory and injunctive relief. On April 27, 1987, Calmat removed this action to federal court on grounds of federal question subject matter jurisdiction. The district court concluded that it had jurisdiction pursuant to section 301 of the LMRA, 29 U.S.C. § 185, section 3102 of the MCSA, 49 U.S.C. § 3102, and the DOT regulations promulgated under the authority of the MCSA. The district court then granted summary judgment for Calmat on the grounds that, pursuant to section 301 of the LMRA, Laws’ proper remedy was through the grievance and arbitration provisions in the CBA. Moreover, the court found that Laws’ state law claim conflicted with the DOT regulations and, therefore, failed under the Supremacy Clause of the United States Constitution. No findings were made regarding sections 7 and 8 of the National Labor Relations Act (“NLRA”). Laws timely appealed. This court has jurisdiction under 28 U.S.C. § 1291. We review de novo both the denial of a motion to remand an action to state court for lack of removal jurisdiction and the grant of a motion for summary judgment. Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 996 (1987). II. Laws argues that the district court erred in finding that his state cause of action was removable pursuant to section 301 of the LMRA. He asserts that his claim is wholly independent from the CBA between the Union and Calmat and, therefore, does not implicate section 301. Thus, he argues, remand is proper. This circuit recently considered and rejected a similar argument in Utility Workers of America v. So. Cal. Edison Co., 852 F.2d 1083 (9th Cir.1988). In Utility Workers, Southern California Edison (“SCE”) implemented a random employee drug testing program without first negotiating with Local 246, the collective bargaining agent for represented employees. Two plant employees and Local 246 filed an action in state court alleging that SCE’s drug testing program violated their California state constitutional rights to privacy and freedom from unreasonable searches and seizures. Id. at 1085. SCE removed the case to federal court where the state claims were dismissed as preempted by section 301. Id. at 1085. On appeal, this court affirmed the district court’s dismissal of Local 246’s state constitutional claims. Id. at 1088. This court first repeated the now familiar proposition that the preemptive effect of section 301 of the LMRA is so powerful that for the purposes of the well-pleaded complaint rule it will transform state claims into federal ones. Id. at 1085. Thus, if an employee attempts to escape application of section 301 by alleging only state law violations—when in fact the claims implicate the CBA—the employee will be subject to the artful pleading doctrine, which “requires that the state law complaint be recharacterized as one arising under the collective bargaining agreement. The case may then be removed to federal court and adjudicated under the appropriate federal law.” Olguin v. Inspiration Consol. Copper Co., 740 F.2d 1468, 1472 (9th Cir.1984). In this way, an employee subject to a CBA will not be able to avoid the application of federal laws by filing only state claims. In Utility Workers, we applied the following test for determining whether to uphold federal preemption of state claims: [WJhen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim ... or dismissed as pre-empt-ed by federal labor-contract law. Utility Workers, at 1086 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206 (1985)) (emphasis added). We concluded that Local 246’s constitutional claims were “substantially dependent” upon analysis of the CBA. Specifically, we noted the articles in the CBA which recognized SCE’s right to manage the plant, direct the work force and implement safety rules. Utility Workers, at 1086. Because the union’s state constitutional claims could not be resolved without considering the CBA we affirmed the district court’s dismissal of those claims. Id. at 1087. Applying the test to the present case, we must hold that Laws’ claim is also “substantially dependent upon” the Calmat-Un-ion CBA. Laws’ conditions of employment are governed by the CBA. A drug and alcohol testing program, upon which all employees’ continued employment depends, is a working condition whether or not it is specifically discussed in the CBA. Moreover, Laws’ state law claim arises out of his suspension and threatened discharge. Calmat stated the reason for Laws’ suspension as “insubordination” for refusing to take the urinalysis test. Under Article IX, Section 1 of the CBA, “[a]n employee may be discharged or disciplined for ... insubordination” and may protest through the grievance and arbitration procedures any punishment considered unjustified. In addition, Calmat and the Union have previously agreed and included in the CBA that “intoxication” due to drugs or alcohol is grounds for “discharge or disciplinary layoff.” Although the manner of discovering employee intoxication is not in the current CBA, the reference to “intoxication” seems to identify this arena as a subject for the collective bargaining process — not the courts. Thus, Laws’ alleged state claim should be treated as an “artfully pled” section 301 claim. See Utility Workers, at 1087. Contrary to Laws’ assertion, Caterpillar Inc. v. Williams, — U.S. -, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), does not require a different result. Laws cites the following language to support his position: Section 301 does not ... require that all “employment-related matters involving unionized employees” be resolved through collective bargaining and thus be governed by ... § 301_ Claims bearing no relationship to a collective-bargaining agreement beyond the fact that they are asserted by an individual covered by such an agreement are simply not pre-empted by § 301. Id. 107 S.Ct. at 2432 n. 10. Laws further notes that the Court wrote: When a plaintiff invokes a right created by a collective-bargaining agreement, the plaintiff has chosen to plead what we have held must be regarded as a federal claim, and removal is at the defendants option. But a defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated. Id. at 2433 (emphasis in original). Laws concludes that, like the plaintiff in Caterpillar, he “chose” not to assert any claims he might have had under the CBA and Calmat cannot “inject” a federal question into the action to justify removal. Such reliance is misplaced. In Caterpillar, union-represented employees brought an action in state court against their former employer for breach of individual employment contracts. The employees alleged that when they were in non-union management positions — prior to representation by a union — Caterpillar made oral and written promises of their continued employment in the event of a plant closure. Subsequently, Caterpillar downgraded the employees to positions covered by a CBA. The employees asserted that Caterpillar assured them the downgrades were only temporary. When the plant closed and the employees had been notified they had been laid off, they brought suit in California state court to challenge breaches of the contracts formed by Caterpillar’s promises made to the employees when they did not belong to a union. Caterpillar then removed the ease to district court based upon section 301 preemption. After the district court dismissed the action, we reversed. The Supreme Court affirmed our decision, holding that although the employees belonged to a union at the time the plant closed and could have asserted rights under the CBA, the employees’ allegations arose from breach of “individual employment contracts with them.” Id. at 2431 (emphasis in original). Their rights under these individual contracts, therefore, were wholly separate from any rights derived from a CBA. Unlike the employees in Caterpillar, Laws was a union-represented employee at all times relevant to his claim. Moreover, as discussed above, his complaint arises from dissatisfaction with a working condition and disciplinary measures taken when he refused to conform to that condition. Thus, his “rights” are not wholly separate from the CBA, but are inextricably intertwined with it. See Allis-Chalmers, 471 U.S. at 213, 105 S.Ct. at 1912. The district court therefore correctly determined that Laws’ state cause of action implicated his CBA and could be removed to federal court. CONCLUSION Removal of Laws’ lawsuit based on complete preemption by section 301 of the LMRA was proper. Since Laws failed to exhaust his administrative remedies as established in the CBA, we affirm the district court. AFFIRMED. . Section 7 identifies protected or arguably protected employee activity, 29 U.S.C. § 157, and section 8 enumerates certain “unfair labor practices" which are illegal if engaged in by management, § 8(a), or labor, § 8(b), 29 U.S.C. § 158. The question of whether the National Labor Relations Board ("NLRB") has exclusive jurisdiction over this dispute is raised by both parties on appeal. . Section 301 provides in pertinent part: "Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties....” 29 U.S.C. § 185. .This complete preemption reflects the goals of national labor laws, which were enacted to avoid the application of inconsistent state laws and thus ensure the integrity of both the collective bargaining process—and any agreement the process produces. See e.g., Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed. 2d 206 (1985). . We also reject Laws’ argument that his Union cannot bargain away his right to be free from mandatory drug testing. In Utility Workers we wrote that "[d]rug testing does not implicate the sort of ‘nonnegotiable state-law rights’ that preclude preemption under section 301.... The question of drug testing obviously implicates important personal rights. To the best of our knowledge, however, no court has held that the right to be free from drug testing is one that cannot be negotiated away, and we decline to make such a ruling here.” At 1086 (citations and footnote omitted). . Our holding is consistent with the Supreme Court's recent decision in Lingle v. Norge Division of Magic Chef, Inc., — U.S. -, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Although the Court reaffirmed the proposition that the NLRA will preempt state law claims requiring interpretation of a CBA, it added that § 301 "says nothing about the substantive rights a State may provide to workers when adjudication of those rights does not depend upon the interpretation of such agreements.” Id. at -, 108 S.Ct. at 1883. The employee’s cause of action in Lingle alleged violation of a well-established and recognized tort provided to workers under Illinois law. Id. at -, 108 S.Ct. at 1881-82. Not only had the state courts interpreted the state's Workers’ Compensation Act to apply to employees who are parties to a CBA, the Illinois courts also set forth the specific factual questions for review of such claims. Id. The California courts have not applied in a published opinion the California constitutional right of privacy in a drug-testing context. Thus Laws' claim is not an established or recognized state law claim. Moreover, in the instant case, we believe Laws’ claim is inextricably intertwined with his CBA. See id. at -, 108 S.Ct. at 1884 ("judges can determine questions of state law involving labor-management relations only if such questions do not require construing collective-bargaining agreements”). . The district court declared Laws’ action preempted under the DOT regulations as well as section 301 of the LMRA. We do not address Laws’ argument regarding the supremacy of the DOT regulation since its resolution would not change the result that Laws’ claim was properly removed under section 301. Moreover, we do not address the issue of whether the NLRB has exclusive jurisdiction of Laws’ complaint such that his state court jurisdiction must be displaced. Because Laws did not exhaust available administrative procedures, we cannot consider the NLRB question “even if [the federal district court] shares jurisdiction with the NLRB.” Utility Workers, 1088. 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_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". SMITH V. UNITED STATES. No. 5487. Circuit Court of Appeals, Fourth Circuit. July 29, 1946. Writ of Certiorari Denied Nov. 12, 1946. See 67 S.Ct. 189. Hayden C. Covington, of Brooklyn, N. Y. (Curran E. Cooley, of Anderson, S. C., and Grover C. Powell, of Atlanta, Ga., on the brief), for appellant. Irving S. Shapiro, Atty., Department of Justice, of Washington, D. C., and Claud N. Sapp, U. S. Atty., of Columbia, S. C. (Henry H. Edens, Asst. U. S. Atty., of Columbia, S. C., and Robert S. Erdahl,. Atty., Department of Justice, of Washington, D. C., on the brief), for appellee. Before SOPER and DOBIE, Circuit Judges, and CHESNUT, District Judge. SOPER, Circuit Judge. This case returns to this court after a sentence of imprisonment for three years and six months was imposed upon the defendant in the District Court for violation of § 11 of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 311 by refusing to submit to induction in the armed forces of the United States after he had been classified 1-A and ordered to report for induction by his local board. A prior conviction for failing to report for induction affirmed by this court, was reversed by the Supreme Court. In the earlier case we relied upon the interpretation of the Act announced in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, as' it was generally understood by the Courts. See Smith v. United States, 4 Cir., 148 F.2d 288; Estep v. United States (Smith v. United States), 66 S.Ct. 423, 435. The refusal of the defendant to submit to induction is not disputed. At the trial in the District Court it was stipulated that on September 30, 1943, after undergoing the selective process and the screening process of the armed forces at the induction station, the defendant was accepted for training in service in the United States Army and was ordered to undergo the induction process ceremony but refused to submit to Induction and was thereafter released and charged with violation of the Selective Training and Service- Act of 1940. Consequently the only controverted issue at the trial related to the legality of the induction order. The rule applicable to that matter was finally established in the Estep-Smith cases where it was held that upon the trial of a registrant for refusing to submit to induction, judicial review is limited to a determination of whether or not the Draft Board exceeded its jurisdiction; and loss of jurisdiction may occur if the board proceeds arbitrarily and without due regard to the rights- of the registrant or makes a classification without basis of fact to support' it. The court, however, made clear that if the findings of the board are supported by evidence, they are not reviewable and must be accepted as final even though they may be erroneous. The principal defenses urged on this appeal are that the District Court should have directed a verdict for the defendant (1) because there was no evidence to support the finding of the board that the defendant was not a ministér entitled to exemption from the draft under § 5 of the Act, 50 U.S.C.A.Appendix, § 305, and (2) because the board in violation of Regulations 623.2, 625.2(b) and 627.13 prescribed by the President under § 10 of the Act, 50 U.S.C.A.Appendix, § 310, denied the defendant due process by failing to reduce to writing and to include in the record on the appeal to the board of appeal and to the President of the United States certain oral evidence offered by the defendant in his appearance before the board. The proceedings before the local board' and the evidence presented to it in support of the defendant’s claim to exemption as a minister of religion may be summarized as follows: Smith registered with the local board in Columbia, South Carolina on December 24, 1942. On January 29, 1943 he filed his selective service questionnaire in which he stated that he was born October 4, 1924; that he. had eight years of elementary schooling and three years of high school and had. completed one and one-half years in the study of engineering at the University of South Carolina and had had four years of a home study course for the ministry.. He stated that his occupation at the time was majoring in engineering preparatory to a B.S. degree with the intention of taking an examination for a license in engineering. Under the heading of occupational experience, qualification and preferences he stated that his usual occupation or the one for which he was best fitted was the ministry; that the kind of work done is shown in Acts 20:20 and Luke 8:1 in the Bible. He asserted that he was not licensed in a trade or profession but preferred the ministry; that he had been a minister of Jehovah’s Witnesses since September, 1938, that is, since he was 14 years of age, and that he had been formally ordained scripturally in September, 1938 as shown by Luke 20:1, 2; John 17:14 and Isaiah 61:1. In addition he said that he was conscientiously opposed by religious training and belief to participation in war and he requested a special form for conscientious objectors to bé completed and returned to the local board for consideration. In view of these facts the defendant expressed the opinion in the questionnaire that he should be put in Class 4-D as a minister of religion under the provisions of § 622.44 of the Regulations. On February 8, 1943, the defendant filed the special form for conscientious objectors in which he reiterated his claim to be a minister. He stated that by reason of his religious beliefs he could not conscientiously bear arms; and that his belief was founded on the Bible which he had studied in well organized classes for four years under the direction of the Watchtower Bible & Tract Society of Brooklyn, New York. He added that he had devoted on the average twenty hours per week for the last four years studying and preaching the gospel of God’s kingdom as set forth in the Bible. He stated that he had been a member of the religious sect known as Jehovah’s Witnesses since 1938; that the church or congregation which he customarily attended was Kingdom Hall, West Columbia, South Carolina; and that the name of the pastor or leader of the church was H. L. Crout (company servant). In addition to these documents the defendant filed with the board two affidavits signed and sworn to by about forty-six persons stating that he was a duly ordained minister of religion in the sect of Jehovah’s Witnesses; also an occupationál questionnaire stating that he was studying engineering at the University of South Carolina and that the completion of the course was indefinite; that he was also studying ministry at home and that he had been in the ministry for four years beginning in 1938 going from door to door and preaching to the people. He also filed a copy of an opinion No. 14 (amended) from National Headquarters of the Selective Service System which showed that the unincorporated body of persons known as Jehovah’s Witnesses was considered to constitute a recognized religious sect and that certain members of the organization stood in a relation thereto and to the other members similar to that occupied by regular or duly ordained ministers of other religions. On April 2, 1943 the defendant was placed in Class 1-A by the local board and received notice of his classification on April 6. He requested a personal appearance and was granted one on April 12. He undertook to demonstrate orally from' notes in his possession that he was a minister, whereupon he was asked whether he had these matters written down and when he replied in the affirmative he was told that he need not quote scripture but to file the papers and that the Board would look them over. Thereafter on May 18, 1943 the Board changed his classification from Class 1-A to Class 1-A-O, thereby making him liable for limited training and service as a conscientious objector. The defendant again requested and was granted a personal appearance before the local board on May 25, 1943. The minutes of the local board show that at this meeting there was a lengthy discussion and after due consideration the board unanimously again classified the defendant in Class 1-A. At that time he withdrew his claim to be classified as a conscientious objector. The testimony as to what occurred at this meeting is of importance because it bears upon the contention of the defendant that he was deprived of due process by reason of the failure of the local board to include what occurred at the meeting in the record of the appeal of the- case to the board of appeal. The defendant testified in the court below that at the hearing on May 25, 1943 he went through his selective service file and pointed out that he was claiming classification as a minister of religion and that he was attending college because his father insisted. He explained to the Board that his training and rearing were in the ministry and the work that he did in the ministry was preaching from house to house and preaching in the congregation, and that his intentions at the time were to put his full time in the ministry. He stated that when he was a child his grandparents and mother indoctrinated him in the teachings of Jehovah’s Witnesses and that he attended congregational schools and engaged in door to door preaching; that he regularly studied the Bible at home, took the prescribed course of study of the sect and was ordained; that he wanted to go into the full time ministry upon completing high school but had gone to college at his father’s insistence; that he had continued to devote so much of his time to ministerial work that he was flunking his engineering courses and that he intended at the end of his second semester to quit the college and devote his full time to missionary evangelical work. He also stated that he was an assistant to the presiding minister and delivered sermons encouraging a greater participation in the work of publicly preaching the gospel ’of the kingdom. It thus appears that there was evidence before the jury that at the hearing before the local board on May 25, 1943 the defendant repeated his former testimony and presented reasons for classification as a minister additional to those stated in the documents which had been previously filed with the board. Especially he emphasized his early training in the teachings of the sect, his services as an assistant to the minister of his congregation, his attendance upon the engineering course against his will in order to satisfy his father’s wishes, his devotion of a considerable part of his time to the work of the ministry to the detriment of his college work and his attention in the near future to quit the Gollege and devote his full time to missionary work. This testimony was not directly controverted by witnesses on behalf of the United States. The only testimony in respect thereto was brought out on cross examination by defendant’s counsel of the chairman of the local board. He stated that he did not recall that the defendant on May 25th said that he was going to quit college and give his full time to the ministry. The chairman further testified that on May 25th there was a full attendance of the board and that the defendant was given as long a hearing as it was possible to give. No written record was made of the statements or testimony of the defendant on May 25th and no reference thereto was included in the record subsequently sent by the local' board to the board of appeal. At the close of the hearing on May 25th the defendant was informed by the local board that his classification in 1-A would be continued. He then filed a written notice of appeal. The board of appeal classified him in 1-A on June 15, 1943. One member of the board dissented so that under the Regulations § 628.2 the defendant had the right to appeal to the President. He filed such an appeal and on July 23, 1943 the President placed the defendant in Class 1-A and gave notice to him on August 8, 1943. Thereupon the defendant collected additional letters, affidavits and petitions from ministers and other persons and from the Watchtower Society stating that he was an ordained minister of ¡the gospel and submitted these papers with" two additional affidavits of his own to the local board through the government appeal agent on September 7, 1943; but the local board declined to reopen the classification. The defendant requested and was granted a hearing on September 14, at which he summarized the evidence in support of his claim to exemption. He stated that he was then devoting his entire time to missionary and evangelistic work and was acting as assistant minister and delivered sermons to the congregation. The board again declined to reopen the classification. The minutes of the board for that day show that it considered the newly submitted evidence but declined to reopen the case because the evidence was merely a repetition ” of the evidence already considered by the board and by the board of appeal and by the President. Whether or not this action was arbitrary and capricious is one of the subsidiary questions in the case. On September 18th the local board ordered the defendant to report for induction on September 30th. The defendant was taken forcibly to the induction station at the insistence -of his father and there completed the selective screening process and was accepted, but refused to submit to induction. When all of the evidence presented to the board is considered, it is obvious that there was substantial ground for denying the defendant’s claim for exemption. It cannot be said that there was no evidence to show that the defendant was not a minister and hence the District Judge properly refused to direct a verdict for the defendant on this ground. We think that Amended Opinion No. 14 issued by the Director of Selective Service on November 2, 1942 and State Director Advice No. 213-B issued by the Director on June 7, 1944 correctly set out the rule to be followed by the board in determining whether a member of the sect of Jehovah’s Witnesses is entitled to the status of a regular or duly ordained minister exempt from the draft under § 5(d) of the statute and § 622.44 of the Selective Service Regulations. In the State Director Advice the Director General said: “Whether an, official of the Jehovah’s Witnesses group stands in the same relationship to this group as a regular or duly ordained minister in other religions must be determined in each individual case based upon whether he devotes his life in the furtherance of the beliefs of Jehovah’s Witnesses, whether he performs functions which are normally performed by regular or duly ordained ministers of other religions, and finally, whether he is regarded by other Jehovah’s Witnesses in the same manner in which regular or duly ordained ministers of other religions are ordinarily regarded.” See also the discussion of this subject in the concluding portion of the opinion of this court filed contemporaneously herewith in Sunal v. Large, Superintendent, 157 F.2d 165. As we said when the defendant was first before us, Smith v. United States, 4 Cir., 148 F.2d 288, 292, it was for the board to say whether this youth of eighteen years of age was actually a regular or duly ordained minister of religion and had been such since his fourteenth year, or, on the other hand, was a college student pursuing a course in engineering with the intent of securing an engineer’s license. Nor do we think that a verdict for the defendant should have been directed on the ground that the board’s refusal to reopen the case in September, 1943 at the request of the defendant was so arbitrary and unreasonable as to amount to a denial of due process. It is contended that the case should have been reopened upon the new affidavits then presented because they supplemented the written record and tended to show that the defendant’s status had changed since he had given up his college course and was devoting his entire time to ministerial work; and it is pointed out that it is the status at the time of classification and not at the time of registration which determines the classification. United States v. Stalter, 7 Cir., 151 F.2d 633; Bowles v. United States, 319 U.S. 33, 63 S.Ct. 912, 87 L.Ed. 1194. It must be borne in mind, however, that the additional affidavits submitted in September were largely cumulative and that the mere cessation of college work after the end of the spring semester and after the defendant had been drafted was not proof positive which the board was 'bound to accept that the defendant had become a regular and ordained minister at that time, whatever he may have been in the spring. Whether or not the additional evidence was of sufficient weight to require a reopening of the case lay within the discretion of the board and it cannot be said under the circumstances that the discretion was arbitrarily exercised. See Cramer v. France, 9 Cir., 148 F.2d 801 ; United States v. Commanding Officer, etc., 2 Cir., 142 F.2d 381. The defendant contends that the induction order was not issued in the manner prescribed by the regulations and hence was void and of no effect. The order was signed by the clerk of the local board and not by the board or any of its members. When the order was issued on September 18, 1943 Regulation 603.59 provided that official papers might be signed by the clerk “by direction of the local board”, if authorized to do so by .a resolution duly adopted by and entered in the minutes of the board. In this instance the board at the beginning of its activities authorized the clerk to sign induction orders on its behalf, but the resolution was not entered on the minutes. We do not think that this omission deprived the board of jurisdiction in the defendant’s case. There is no doubt that the defendant’s classification and induction order were authentic actions of the board taken after prolonged and careful consideration; and the defendant was in no way injured by the board’s disregard of a directory administrative detail in the performance of its duties. See United States v. Drum, 2 Cir., 107 F.2d 897, 129 A.L.R. 1165, certi-orari denied 310 U.S. 648, 60 S.Ct. 1098, 84 L.Ed. 1414. A more difficult question arises ■ in connection with the sufficiency of the record which the local board sent up to the board of appeal. The regulations require that every paper pertaining to the registrant, except his registration card, shall be filed in his cover sheet. § 615.43. Oral information shall not be considered unless it is summarized in writing and the summary-placed in the registrant’s file. Under no circumstances shall the local board rely upon information received by a member personally unless such information is reduced to writing and placed in the registrant’s file. § 623.2. The registrant may present such further information as he believes will assist the local board in determining his proper classification. Such information shall be in writing or, if oral, shall be summarized in writing and, in either event, shall be placed in the registrant’s file. § 625.2(b). Section 627.13(a) provides as follows: “Immediately upon an appeal being taken to the board of appeal, the local -board shall carefully check the registrant’s file to make certain that all steps required by the regulations have been taken and the record is complete. If any facts considered by the local board do not appear in the written information in the file, the local board shall prepare and place in the file a written summary of such facts. In preparing such a summary the local board should be careful to avoid the expression of any opinion concerning information in the registrant’s file and should refrain from including any argument in support of its decision.” These regulations clearly require that the record of a registrant on appeal to the board of appeal shall contain a written ■ summary of all the facts considered by the local board in making its classification; and since the conclusions of the board of appeal are necessarily based upon the written record, omission of material facts deprives the registrant of his right to an adequate consideration of his case on appeal and amounts to a denial of due process by the local board which invalidates its classification and order of induction into the armed services. The District Judge reached this conclusion and instructed the jury in substance that it was the duty of the local board to reduce to writing any additional facts presented by the defendant to the board on May 25, 1943 as to his standing as a minister and to place the writing in the file for the use of the board of appeal arid the President in passing upon the classification of the defendant, and that if the board failed in this respect its failure would deprive the defendant of his right to a full hearing upon appeal and entitle him to a verdict of not guilty. The defendant contends that the evidence shows conclusively that the board did fail in its duty in making up the record on appeal in the manner indicated and that the judge should have directed a verdict for the defendant. We do not agree with this contention because questions of fact were for the jury and it was for them to decide whether the defendant actually gave additional facts which were not included in the record. In this connection it is worthy of note that the defendant on May 26, 1943, after taking the appeal, wrote to the appeal board himself and set out at least some of the facts which according to his testimony he gave to the local board in the hearing on May 25. In his letter to the appeal board he said that the only reason that he had not put full time into the ministerial work was that his father had requested him to go to college and he obeyed, but that it was his intention at the completion of the semester to become a pioneer and devote his full time to the work of the ministry. The point, however, is not of practical importance at this time because, for reasons to be given presently, the judgment must be reversed and it may be that upon a new trial the evidence on the point will be more fully developed. It is sufficient to say at this time that unless the facts in respect to the question under consideration are admitted or are so fully proved as to admit of no doubt, the judge should instruct the jury in the words of the regulation that if the facts considered by the local board did not appear in the written information in the file, it was the duty of the local board to prepare and place in the file a written summary of the facts, and if the jury should find that the board failed in this duty and that evidence material to the decision was withheld from the board of appeal, the order of induction was void and the verdict of the jury should be for the defendant. The government contends that any deficiency in the record on appeal was immaterial and gave the defendant no right to complain because he had the power himself to correct the record under the provisions of § 627.12 of the Selective Service Regulations which provide that a registrant who takes an appeal to the board of appeal “may attach to his notice of appeal or to the Selective Service questionnaire (Form 40). a statement specifying the respects in which he believes the local board erred, may direct attention to any information in the registrant’s file which he believes the local board has failed to consider or give sufficient weight, and may set out in full any information which was offered to the local board and which the local board failed or refused to include in the registrant’s file.” In our opinion this regulation does not relieve the local board of its duty in the premises or mitigate the consequences of a failure on its part. The regulation confers a privilege but does not impose a duty upon the registrant; for it cannot be supposed that Congress intended to deal with registrants as if they were' engáged in formal litigation, assisted by counsel, and therefore charged with the obligation to examine and approve a record on appeal. We think, however, that there was prejudicial error in rulings of the District Judge during the course of the trial with respect to the bearing of a conscientious objection to military service upon the credibility of the believer. During the cross examination of a witness, who was testifying that the defendant had engaged in ministerial activities and duties, the witness was asked whether he believed it right to fight, and the judge, in overruling an objection to the question, stated that in establishing the credibility of the witness it was very important to know whether he served his country or not. Again, at the conclusion of the case the defendant requested the court to instruct the jury that in passing upon the question of whether the defendant was a minister, they should not consider the fact that he was a conscientious objector. The judge refused the request stating in the presence of the jury that they had the right to consider whether or not the defendant claimed the conscientious objection in considering his credibility. No argument is needed to show that this ruling was erroneous. See Girouard v. United States, 66 S.Ct. 826. Nor can it be doubted that it tended to prejudice the defendant in the eyes of the jury since he had formerly claimed.the status of conscientious objector and had abandoned the claim, although not the belief, in order to secure the complete exemption pertaining to the ministerial status. It was the position-of the government throughout the trial that the defendant was trying to avoid his duty to the country by presenting the spurious claim .that he was a minister of religion, whereas he was in truth a college student in engineering. His sincerity and credibility were directly in issue, and it was harmful to him to inject into the controversy the idea that religious scruples against bearing arms may be incompatible with a regard for the truth. The significance of this ruling was increased by the wide scope which was given to the trial, erroneously we think, by the District Judge. He was of the opinion that the trial should not be confined to the regularity of the proceeding before the local board and the validity of the order of induction, but that the jury might itself decide whether the defendant was a minister and might acquit him if they so found, irrespective of the action of the board. In reaching this conclusion he relied upon passages in the opinion in the Estep case which show that the power of a local board is limited by the statute and the regulations; and if the board orders a person to report for induction who is exempt, its action is lawless and beyond its jurisdiction. There are decisions which hold that facts essential to the jurisdiction of an administrative board are reviewable by the courts, e.g., Crowell v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L.Ed. 598; and the judge concluded that the- ministerial status of the registrant in the pending case was a jurisdictional question to be passed, on by the jury. Accordingly, he instructed the jury over the government’s objection that the first and most important question that they must decide was whether the defendant was a regular or duly ordained minister of religion, and that the second question was whether the local board gave the defendant a proper hearing and fair treatment and carried out the terms of the statute and regulations. In short, it was for the jury to. say whether the defendant was a minister and whether the board properly classified him under the statute. In harmony' with this interpretation of the Act the judge permitted the defendant, in addition to the documentary evidence considered by the board, to introduce a number of witnesses who did not testify before the local board, but testified in the District Court in support of the defendant’s claim that he was a-minister of religion entitled to exemption. This position was incorrect for it is clearly shown by the following passage from the opinion in the Estep case, 66 S.Ct. 423, 427, that the board’s finding as to a jurisdictional fact is binding on the court unless there is no evidential basis for it The court said: “* * * Sec. 11, being silent -on the matter, leaves the question of available de-’ fenses in doubt. But we are loathe to resolve those doubts against the accused. We cannot readily infer that Congress departed so far from the traditional concepts of a fair trial when it made-the- actions of the local boards ‘final’- as to provide that a citizen of this country should go to jail for not obeying an unlawful order of an administrative agency. We are loathe to believe that Congress reduced criminal trials under the Act to proceedings so barren of the customary safeguards which the law has designed for the protection of the accused. The provision making the decisions of the local boards ‘final’ means to-us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not. to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave to the registrant. See Goff v. United States, 4 Cir., 135 F.2d 610; 612.” - „ See also, United States v. Stalter, 7 Cir., 151 F.2d 633, 634. It is true that the defendant was not free from blame in this respect since his attorney accepted the judge’s view without protest, offered the additional evidence above referred to, and secured an instruction from the District Judge that it was the duty of the jury to determine whether the defendant was a minister; and in making-such determination, they were ¡not confined, to evidence received by the Draft Board, but might consider also any other evidence received at the trial; and if the jury found that the defendant was a minister within the meaning of the Act, he could not be-convicted under the indictment. Hence it. may be argued, as was held in Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704, that a new trial should not be-granted for an error in which the defendant not only acquiesced but actively participated. Moreover, it may be contended that the defendant was actually benefited by the ruling since he was not confined to a review of the finding of the board, but was given an opportunity to try the case denovo on its- merits and win a verdict if ha could convince the jury that his claim was well founded. But in our view, the theory •on which the case was tried was so fundamentally wrong that we should take notice of the mistake of our own motion, even in the absence of an exception below, as was done in Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495. In reaching this conclusion we are moved not only by the need to direct the course of the new trial which must follow, along proper lines, but also by the probability that the jury felt free to decide the case as if they were the sole judge of the merits of the defendant’s claim and hence to ignore the right of the defendant to an acquittal if they found that the local board had failed to follow the terms of the statute. Since the jury was told that they must acquit the defendant if they found that he was a minister of religion, they probably concluded that it was their duty to convict him, if they came to the conclusion that he did not possess this status. And it is certainly true that the trial of the case on its merits gave the government an opportunity of which it was not slow to avail itself, to attack the credibility of the defendant and to suggest that he was endeavoring unjustly to escape the duty to fight for his country. The defendant offered thirty-five requests for instructions to the jury which cover forty pages of the printed record; and he complains that some of them were rejected and some were granted in an altered form. Many of them were prolix, argumentative and repetitious. The District Judge would have been justified in rejecting them all and covering the material points in his own language in his charge to the jury. It would be useless to examine these prayers at this time since the need for many of them will be eliminated in the more restricted scope of the new trial and the attention of the jury can be directed to the specific issues in controversy. Reversed. 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_genresp2	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 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. GREENMOUNT SALES, INC., a Va. Corp. t/a Variety Book Store and Harlee Little, Appellees, v. J. R. DAVILA, Jr., Commonwealth’s Attorney for the City of Richmond, Va. and Frank S. Duling, Chief of Police for the City of Richmond, Va., Appellants. No. 72-2073. United States Court of Appeals, Fourth Circuit. Submitted March 7, 1973. Decided May 23, 1973. Andrew P. Miller, Atty. Gen., James E. Kulp, Asst. Atty. Gen., and Daniel T. Balfour, Asst. City Atty., on brief for appellants. R. R. Ryder and Ryder & Nance, Richmond, Va., on brief for appellees. Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges. CRAVEN, Circuit Judge: Upon the complaint of the manager and corporate owner of an “adult” bookstore, the district court, 344 F.Supp. 860, enjoined officers of the City of Richmond (1) from seizing books and films without a prior adversary hearing on the issue of obscenity, and (2) to surrender books and films already seized provided the bookstore would make a copy of each available for criminal prosecution purposes. We reverse, but the result is not dissimilar to that accomplished by the district judge: Richmond, we hold, is simply entitled to retain single copies for purposes of prosecution. Correctly, the district court denied plaintiffs’ prayer for an injunction preventing both pending and future prosecutions. Jurisdiction rests upon 28 U.S.C. § 1343(3) and (4) and 42 U.S.C. § 1983, and the predicate for the relief sought was, of course, the first amendment. Unquestionably there was jurisdiction in the district court. The more difficult question urged upon us by officers of the City of Richmond on appeal is whether the district court in its equitable discretion should have declined to exercise jurisdiction as a matter of comity. It is urged upon us that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971), compel such abstention in deference to the state courts. But Younger was decided in the context of an injunction issued by the district court preventing a prosecution then pending in the California state criminal system. In our case the district judge properly deferred to the state criminal courts by refusing to enjoin either pending or future prosecutions. Thus, he effectively followed the teaching of Younger. In Perez, the federal district court was held to have erred in issuing an order suppressing and prohibiting the use in state criminal proceedings of evidence said to have been illegally seized. The result was said to stifle the then-pending good faith state criminal prosecution, and considerations of federalism and comity were held to prevent such federal court interference with the state’s administration of its criminal laws. Here, even though the prosecution was instituted in good faith, we think it was nevertheless appropriate for the federal court to concern itself with whether or not there was an wholly unnecessary infringement of the first amendment, i. e., whether more books and films were seized than were necessary for a criminal prosecution. The district court substantially followed Perez: he did not stifle the prosecution by an order of suppression, but instead sought to assure the availability of evidence. We hold that the failure to dismiss was not error. Greenmount Sales, Incorporated, a Delaware corporation authorized to do business in Virginia, operates a retail store known as Variety Book Store located in Richmond, Virginia. On August 19, 1970, the Richmond police simultaneously raided three so-called adult book stores. Officers entered the Variety Book Store at that time, browsed around briefly, and purchased an allegedly obscene item from manager Little. They then placed him under arrest for selling obscene articles, in violation of Va.Code Ann. § 18.1-228 (Supp.1970). Simultaneously, the officers served upon the manager a search warrant issued by a justice of the peace and based upon the affidavit of a police officer, directing the officers to search for “obscene items” allegedly being exhibited and offered for sale. The officers proceeded to inspect books, films, and other material in the store, looking for items which, in the words of one officer, depicted “abnormal sex relationships, sadism, and homosexuality.” The police seized 201 publications, 11 reels of motion picture films, and other miscellaneous sex-oriented items, e. g., dildos, with a total value of approximately $2,400.00. Among the 201 publications, including books and newspapers, were 23 duplicate copies. The duplicates were subsequently returned to the bookstore, and the remaining 183 publications and the 11 films are single copies. The avowed purpose of the seizures was to obtain evidence for criminal prosecution of the plaintiffs. We note that potential issues regarding the obscenity of the material seized and the constitutionality of the Virginia obscenity statute are not before us. The sole issue with which we are concerned is whether the first amendment requires an adversary judicial hearing prior to a seizure by government authorities, for use as evidence in criminal prosecutions, of single copies of allegedly obscene publications. The district court felt that a prior hearing was required by the mandate of the Supreme Court in A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), and by this Circuit’s holding in Tyrone v. Wilkinson, 410 F.2d 639 (4th Cir. 1969). We disagree. In Books, the Supreme Court was confronted with a situation involving massive seizures of books pursuant to state statutes which authorized the seizure of obscene materials as a first step in civil proceedings seeking their destruction. The police there had seized 1,715 copies of 31 novels. In holding the wholesale seizures of allegedly obscene books without a prior adversary hearing constitutionally infirm under the first amendment, the Court expressed deep concern over prior restraints which might erode areas traditionally given broad first amendment protection and which would effectively undermine “the public’s opportunity to obtain the publications.” Books, supra, at 211, 84 S.Ct. at 1726. The Eighth Circuit has, we believe, accurately characterized the rationale of Books: The Court reasoned that absent an adversary hearing a substantial threat existed that the right of non-obscene publications to unobstructed circulation would be impinged through the massive seizures of material deemed obscene solely on the basis of an ex parte hearing. [Emphasis added]. United States v. Alexander, 428 F.2d 1169, 1172 (8th Cir. 1970). In extending the rationale of Books to prohibit a similar seizure of a theater’s only copy of a motion picture film in Tyrone, this court was also concerned that the seizure would “result in the suppression of nonobseene material,” and thus run afoul of the first amendment. Tyrone, supra, at 640 of 410 F.2d. Following the rationale of Books, we found inherent in the seizure of a theater’s only copy of a movie film the same danger present in the wholesale confiscation of of all available copies of a book: suppression of constitutionally protected communication. Books, Alexander, and Tyrone are in-apposite to decision of this case. Here the seizure was neither massive in the Books sense, nor complete in the Tyrone sense, i. e., the only copy. Since only single copies were taken, and others left on the shelves, neither the author’s first amendment right to expression nor the public’s right to know is infringed. The seizure in this case by the Richmond police is a procedure justified by the requirements of effective law enforcement, e. g., United States v. Wild, 422 F.2d 34, 38, 39 (2d Cir. 1969), and not prohibited by the first amendment “ ‘as a prior restraint on the circulation and dissemination of books’ in violation of the constitutional restrictions against abridgment of freedom of speech and press.” Books, supra, at 209, 84 S.Ct. at 1725. Where one of many copies of a film is seized for the sole purpose of preserving it as evidence to be used in a criminal action . . . such a seizure cannot be said to be violative of the First Amendment’s guarantees albeit a side effect of such a seizure coincidentally prevents that one particular copy of the film from being further disseminated pending the outcome of the criminal proceedings. Unlike the situation in A Quantity of Books, the seizure made here was not made for the purpose of preventing the dissemination of the information contained in the film. Bazzell v. Gibbens, 306 F.Supp. 1057, 1059 (E.D.La.1969). Affirmed in part and reversed in part. . The plaintiffs-appellees have agreed that the district court’s refusal to enjoin state prosecutions was correct, and that issue is not raised on appeal. . There were 140 sex “articles” or paraphernalia seized during the raid. The district court correctly concluded that these were not subject to first amendment protection and, thus, were not subject to its injunction. See A Quantity of Books v. Kansas, 378 U.S. 205, 211-212, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Metzger v. Pearcy, 393 F.2d 202, 203 (7th Cir. 1968). . Accord, United States v. Wild, 422 F.2d 34, 38 (2d Cir. 1969), cert. denied, 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971); Bazzell v. Gibbons, 306 F. Supp. 1057, 1059 (E.D.La.1969); Rage Books, Inc. v. Leary, 301 F.Supp. 546, 549 (S.D.N.Y.1969). 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:
sc_decisiontype	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. TUGGLE v. NETHERLAND, WARDEN No. 95-6016. Decided October 30, 1995 Per Curiam. In Zant v. Stephens, 462 U. S. 862 (1983), we held that a death sentence supported by multiple aggravating circumstances need not always be set aside if one aggravator is found to be invalid. Id., at 886-888. We noted that our holding did not apply in States in which the jury is instructed to weigh aggravating circumstances against mitigating circumstances in determining whether to impose the death penalty. Id., at 874, n. 12, 890. In this case, the Virginia Supreme Court and the Court of Appeals for the Fourth Circuit construed Zant as establishing a rule that in nonweighing States a death sentence may be upheld on the basis of one valid aggravating circumstance, regardless of the reasons for which another aggravating factor may have been found to be invalid. Because this interpretation of our holding in Zant is incorrect, we now grant the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari and vacate the judgment of the Court of Appeals. I Petitioner Tuggle was convicted of murder in Virginia state court. At his sentencing hearing, the Commonwealth presented unrebutted psychiatric testimony that petitioner demonstrated “ ‘a high probability of future dangerousness.’ ” Tuggle v. Commonwealth, 230 Va. 99, 107, 334 S. E. 2d 838, 844 (1985), cert. denied, Tuggle v. Virginia, 478 U. S. 1010 (1986). After deliberations, the jury found that the Commonwealth had established Virginia’s two statutory aggravating circumstances, “future dangerousness” and “vileness”; it exercised its discretion to sentence petitioner to death. 230 Va., at 108-109, 334 S. E. 2d, at 844-845. Shortly after the Virginia Supreme Court affirmed petitioner’s conviction and sentence, Tuggle v. Commonwealth, 228 Va. 493, 323 S. E. 2d 539 (1984), we held in Ake v. Oklahoma, 470 U. S. 68 (1985), that when the prosecutor presents psychiatric evidence of an indigent defendant’s future dangerousness in a capital sentencing proceeding, due process requires that the State provide the defendant with the assistance of an independent psychiatrist. Id., at 83-84. Because petitioner had been denied such assistance, we vacated the State Supreme Court’s judgment and remanded for further consideration in light of Ake. Tuggle v. Virginia, 471 U. S. 1096 (1985). On remand, the Virginia Supreme Court invalidated the future dangerousness aggravating circumstance because of the Ake error. See Tuggle v. Commonwealth, 230 Va., at 108-111, 334 S. E. 2d, at 844-846. The court nevertheless reaffirmed petitioner’s death sentence, reasoning that Zant permitted the sentence to survive on the basis of the vileness aggravator. 230 Va., at 110-111, 334 S. E. 2d, at 845-846. The Court of Appeals agreed with this analysis on federal habeas review, Tuggle v. Thompson, 57 F. 3d 1356, 1362-1363 (CA4 1995), as it had in the past. Quoting the Virginia Supreme Court, the Court of Appeals stated: “ ‘When a jury makes separate findings of specific statutory aggravating circumstances, any of which could support a sentence of death, and one of the circumstances subsequently is invalidated, the remaining valid circumstance, or circumstances, will support the sentence.’” Id., at 1363 (quoting 230 Va., at 110, 334 S. E. 2d, at 845, and citing Zant, supra). II Our opinion in Zant stressed that the evidence offered to prove the invalid aggravator was “properly adduced at the sentencing hearing and was fully subject to explanation by the defendant.” 462 U. S., at 887. As we explained: “[I]t is essential to keep in mind the sense in which [the stricken] aggravating circumstance is ‘invalid.’ . . . [T]he invalid aggravating circumstance found by the jury in this case was struck down ... because the Georgia Supreme Court concluded that it fails to provide an adequate basis for distinguishing a murder case in which the death penalty may be imposed from those cases in which such a penalty may not be imposed. The underlying evidence is nevertheless fully admissible at the sentencing phase.” Id., at 885-886 (internal citations omitted). Zant was thus predicated on the fact that even after elimination of the invalid aggravator, the death sentence rested on firm ground. Two unimpeachable aggravating factors remained and there was no claim that inadmissible evidence was before the jury during its sentencing deliberations or that the defendant had been precluded from adducing relevant mitigating evidence. In this case, the record does not provide comparable support for petitioner’s death sentence. The Ake error prevented petitioner from developing his own psychiatric evidence to rebut the Commonwealth’s evidence and to enhance his defense in mitigation. As a result, the Commonwealth’s psychiatric evidence went unchallenged, which may have unfairly increased its persuasiveness in the eyes of the jury. We may assume, as the Virginia Supreme Court and Court of Appeals found, that petitioner’s psychiatric evidence would not have influenced the jury’s determination concerning vileness. Nevertheless, the absence of such evidence may well have affected the jury’s ultimate decision, based on all of the evidence before it, to sentence petitioner to death rather than life imprisonment. Although our holding in Zant supports the conclusion that the invalidation of one aggravator does not necessarily require that a death sentence be set aside, that holding does not support the quite different proposition that the existence of a valid aggravator always excuses a constitutional error in the admission or exclusion of evidence. The latter circumstance is more akin to the situation in Johnson v. Mississippi, 486 U. S. 578 (1988), in which we held that Zant does not apply to support a death sentence imposed by a jury that was allowed to consider materially inaccurate evidence, 486 U. S., at 590, than to Zant itself. Because the Court of Appeals misapplied Zant in this case, its judgment must be vacated. Ill Having found no need to remedy the Ake error in petitioner’s sentencing, the Virginia Supreme Court did not consider whether, or by what procedures, the sentence might be sustained or reimposed; and neither the state court nor the Court of Appeals addressed whether harmless-error analysis is applicable to this case. Because this Court customarily does not address such an issue in the first instance, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. So ordered. Virginia’s capital punishment statute involves a two-stage determination. The jury first decides whether the prosecutor has established one or both of the statutory aggravating factors. Va. Code Ann. §§19.2-264.4(C)-(D) (1995). If the jury finds neither aggravator satisfied, it must impose a sentence of life imprisonment. Ibid. If the jury finds one or both of the aggravators established, however, it has full discretion to impose either a death sentence or a sentence of life imprisonment. Ibid. See Smith v. Procunier, 769 F. 2d 170, 173 (CA4 1985). Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
songer_direct2	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 in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Charles GOLDSTEIN, Appellant, v. Megerdich DABANIAN and Emma K. Dabanian t/a East Tioga Check Service. Louis SERNOVITZ, Herbert Sabulsky and Sidney Singer, Appellants, v. Irving HERTZ, t/a Terminal Check Service. Nos. 13470, 13471. United States Court of Appeals Third Circuit. Argued May 1, 1961. Decided June 2, 1961. Rehearing Denied June 29, 1961. Stanley Bernard Singer, Philadelphia, Pa., for appellants. Robert E. Nagle, Washington, D. C. (Charles Donahue, Solicitor, Bessie Margolin, Asst. Solicitor, U. S. Dept, of Labor, Washington, D. C., Ernest N. Votaw, Regional Atty., Chambersburg, Pa., on the brief), for Secretary of Labor, amicus curiae. Oscar Spivack, Charles W. Woolever, Philadelphia, Pa. (Raymond L. Shapiro, Wexler, Mulder & Weisman, Philadelphia, Pa., on the brief), for appellees. Before GOODRICH, STALEY and FORMAN, Circuit Judges. GOODRICH, Circuit Judge. These two appeals present the same question, namely, whether employees of the two defendants are engaged in interstate commerce or the production of goods for commerce under the Fair Labor Standards Act, 29 U.S.C.A. § 206(a). The plaintiffs sued to recover unpaid overtime compensation, liquidated damages and counsel fees. The district court held that they were not engaged in commerce or the production of goods for commerce and dismissed the action. The decision is unreported. It is agreed by all persons concerned that the question here is not determined by the nature of the business in which the employer is engaged but by the duties of the individual employees. Mitchell v. H. B. Zachry Co., 1960, 362 U.S. 310, 80 S.Ct. 739, 4 L.Ed.2d 753; Mitchell v. Household Finance Corporation, 3 Cir., 1953, 208 F.2d 667. These employees did three things for their respective employers. One, for a fee they cashed non-personal checks presented to them. These checks, usually but not always, are payroll checks. Two, they issued money orders drawn on American Express or National Express. Three, they accepted payment, for a small fee, of utility company bills. Most of the customers were persons who did not have individual bank accounts of their own. The trial court decided that these plaintiffs were not engaged in commerce or the production of goods for commerce. He found it unnecessary to determine whether they qualified under exceptions to the rule for coverage described in the statute. Contrary to the district court’s determination we think that these employees fell within the general coverage of the act. What they did was to cash these checks and at the end of a business day total them up for deposit in the employer’s bank account. While 91% of the checks were drawn on local banks in Pennsylvania, 9% of them were drawn on banks out of the state. That the checks are “goods” within the meaning of the statute was decided by the Second Circuit in Bozant v. Bank of New York, 1946, 156 F.2d 787, applying Western Union Telegraph Co. v. Lenroot, 1945, 323 U.S. 490, 65 S.Ct. 335, 89 L.Ed. 414. The Bozant case was discussed and approved in our decision, Mitchell v. Household Finance Corporation, supra. Nine percent of the checks had an out-of-state destination for presentment and payment. This, of course, constitutes interstate commerce on the part of the employer. See Mabee v. White Plains Publishing Co., 1946, 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607. The handling of the checks by these employees was also a part of interstate commerce. In cashing the checks and making the deposits in the appropriate bank, these employees were forwarding goods in interstate commerce just as truly as an initiating intrastate carrier is part of the process of interstate commerce when it delivers the goods consigned to an out-of-state destination to the carrier who takes them to the place of delivery. What the employees did, in other words, was to start these checks on the first lap of an interstate journey by depositing them in a local bank. That being so, the employees are covered by the act unless excluded by the exemptions. The next question, therefore, is whether the plaintiffs are exempt by reason either of being administrative employees or employees of a retail establishment. 29 U.S.C.A. §§ 213(a) (1), (2). Let us turn first to the administrative question and see what these employees did. The district court in its consideration of the case was not called upon to decide this question because it considered that the plaintiffs’ work was not part of interstate commerce. There is no fact question presented, however. There is no dispute as to what took place. The difference of opinion concerns the effect of the acts done. Administrative employees are defined in regulations of the Secretary. These employees had no one to direct in the operation of their part of the business. They were the sole employees in the several offices maintained by the employers. Their primary duty was certainly not manual labor and they were paid $75.00 or more per week. They determined the identity of a person who wished to cash a check. For this purpose there were office files of signatures for many of the habitual customers. If a person was not listed in the file he was required to identify himself by some other means. At the end of the day the cashed checks were made up into a list and deposited at the appropriate bank. The employees alone determined the amount of currency needed for the day’s business. It would not be disputed that a certain amount of discretion was involved in making an estimate of the cash needs for the day and also determining the identity of the customers who wished to have their checks cashed. But such activity does not place the employees in the administrative group. Indeed, the discretion to be exercised is less than that of a top mechanic employed in an automobile service station whose judgment about diagnosing the ailment of a motor car and prescribing for its cure calls for a high degree of technical competence. The scope of the discretion here is much too narrow to place the employees in the administrative class. We turn, then, to the final question whether these plaintiffs were engaged in a retail establishment. The Government says that this question is determined by the Supreme Court decision in Mitchell v. Kentucky Finance Co., Inc., 1959, 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815. In this case it was'held that the business of making small personal loans and purchasing conditional sales contracts from dealers did not constitute an exemption from the coverage of the statute following the amendment of 1949. The Supreme Court also pointed out that exemptions from this statute are to be narrowly construed. In the present case more than 50% of the business handled by these plaintiffs was local business. They served customers in the community. They sold no goods but they did provide a service as a convenience to their customers for which the latter paid. There are affidavits that the trade considered this to be a retail enterprise. This case is not determined by the Supreme Court decision in Mitchell v. Kentucky Finance Co. just cited. These employees are not bankers nor dealers in finance. They do not make loans; they do not extend credit. Their functions have none of the features which go along with orderly banking or financial institution enterprises except for the cashing of checks. But that cashing for their customers is a purely local, personal service for the neighborhood people who patronize them. They perform a retail service. They do not fall within those statements which exclude financial agency transactions from the exemptions of the statute. The issuance of money orders and payment of utility bills are clearly within the retail service concept. This conclusion brings us into agreement with the result reached by the district judge but for a different reason. The judgment of the district court will be affirmed. . The Secretary of Labor submitted a brief to this Court as amicus curiae. . Some personal checks in amounts up to twenty dollars were also cashed for persons known by the particular employees. . “The term ‘employee employed in a bona fide ® * * administrative * * * capacity’ in section 13(a) (1) of the act shall mean any employee: “(a) Whose primary duty consists of the performance of ofliee or nonmanual field work directly related to management policies or general business operations of his employer or his employer’s customers ; and “(b) Who customarily and regularly exercises discretion and independent judgment ; and “(c) (1) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined in this subpart); or “(2) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or “(3) Who executes under only general supervision special assignments and tasks; and “(d) Who does not devote more than 20 percent of his hours worked in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (c) of this section; and “(e) Who is compensated for his services on a salary or fee basis at a rate of not less than $75 [now $95] per week * * * exclusive of board, lodging, or other facilities: “Provided, That an employee who is compensated on a salary or fee basis at a rate of not less than $100 [now $125] per week (exclusive of board, lodging, or other facilities), and whose primary duty consists of the performance of office or nonmanual field work directly related to management policies or general business operations of his employer or his employer’s customers, which includes work requiring the exercise of discretion and independent judgment, shall be deemed to meet all of the requirements of this section.” 29 O.B’.R. § 541.200. . On occasional busy days part-time employees were hired to assist them. . The district court found that supervision of these employees “was unnecessary because [their] duties were routine and followed a set pattern.” See Rothman v. Publicker Industries, Inc., 3 Cir., 1953, 201 F.2d 618. . In this case the concept “retail” seems rather artificial since but for this statute we would find difficulty in conceiving how any question would arise whether this type of activity is “retail,” “wholesale” or whatever. The Secretary’s regulations provide: “It will be observed that the sponsors of the amendment, in classifying industries on the basis of the applicability of the retail concept to their selling or servicing, did so on the basis of common knowledge as to what is recognized and what is not recognized as retail selling or servicing in the light of the objectives and purposes of the exemption as to the type of establishment it is intended to exempt. Thus, the dividing line between sales and services to which the retail concept is applicable and those to which it is not applicable is the general and common understanding of people of what constitutes a retail sale or service in the traditional sense. * * * ” 29 G.P.R. § 779.9(c). We doubt very much whether this type of activity is or is not considered “retail” in the common understanding of the public. However, the regulations go on to describe the “characteristics” of a retail establishment. “Typically a retail or service establishment is one which sells goods or services to the general public. It serves the everyday needs of the community in which it is located. The retail or service establishment performs a function in the business organization of the nation which is at the very end of the stream of distribution, disposing in small quantities of the products and skills of such organization and does not take part in the manufacturing processes.” 29 C.P.R. § 779.9 (d). In attempting to analogize to activities which clearly fall within and without the exemption, we think this check cashing service more nearly approximates a hotel or barber shop than it does a bank or personal loan company. See 29 C.F.It. § 779.10(a), (b). It “serves the everyday needs of the community in which it is located.” . See the administrative regulation describing the impact of the legislative history. 29 C.F.R. § 779.9(b). Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_usc1sect	371	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 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". PENOSI v. UNITED STATES. No. 13637. United Stales Court of Appeals Ninth Circuit. Aug. 14, 1953. Frank Desimone, Beverly Hills, Cal., for appellant. Walter S. Binns, U. S. Atty., Ray H. Kinnison, George M. Treister, Manuel L. Real, Asst. U. S. Attys., I,os Angeles, Cal., for appellee. Before MATHEWS, HEADY and ORB, Circuit Judges. ORR, Circuit Judge. Appellant was tried by the Court sitting without a jury and convicted op two counts of an indictment charging him and a co-defendant, Louis A. Salerno, with the crime of receiving, concealing and facilitating the transportation of narcotics in violation of 21 U.S.C.A. § 174, and conspiring to commit that offense in violation of 18 U.S.C.A. § 371. He was sentenced to imprisonment for three years on each of the two counts and a fine of $1,000 on the substantive count, the sentences of imprisonment to ran concurrently. Appellant challenges the judgment primarily on the ground that the evidence is insufficient to sustain the judgment. We summarize the pertinent portions of the evidence. On November 1, 1951, Federal Narcotic Agent Charles Van Natter and a government informer met co-defendant Louis A. Salerno in a bar in Hollywood, California. During the course of their conversation reference was made to narcotics. At Salerno’s request, the three men met again on November 3, 1951, at the same bar and the sale of narcotics was discussed. Salerno told the government men that if they wished to buy 20 ounces of heroin he would send a telegram to New York and have the heroin delivered by plane to Hollywood at a price of $250.00 per ounce. Until the shipment arrived from New York Salerno said he would supply the agent with a smaller quantity of heroin. At or near 12 M. of November 4th, Salerno sent the following telegram to appellant in New York signed with the fictitious name, “Louis Ricco”: “Finish Work Need 20 More Let Me Know When You’ll Be Here.” On the afternoon of November 5th, the government men met Salerno at his motel room pursuant to an appointment made the previous evening. Salerno then and there sold agent Van Natter four ounces of heroin at an agreed price of $1,000, payment being made in marked government funds. During a conversation had at the time of this sale, Salerno stated that he expected delivery of the larger amount of narcotics from New York within the next two days. The parties made an appointment to meet again at 10:00 p. m. the same night, November 5th, to discuss the sale of the 20 ounces of heroin. At 7:51 p. m. Los Angeles time, November 5th, appellant dispatched from New York the following telegram to Salerno addressed to “Louis Rico”: “Arriving 8:20 P.M. Tuesday American Airlines Flight 609.” Salerno admitted the receipt of appellant’s telegram. The two government men and Salerno met at the bar at approximately 10:00 p. m., November 5th, pursuant to an agreement entered into earlier that day. Salerno then stated that he had wired one of his men in New York to bring the heroin and that he expected him to arrive late the following night, November 6th. Salerno arranged a meeting the following night at 10 :00 p. m. to effect the sale of the 20 ounces of heroin. The flight referred to in appellant’s telegram to Salerno was scheduled to arrive in Los Angeles at 8:20 p. m., November 6th, but due to weather conditions appellant did not arrive until the early morning of November- 7th, at 12:38 a.m. The government agents went to the bar on the night of November 6th, as arranged, but Salerno did not appear. A few minutes after midnight they received a phone call from Salerno postponing the meeting until 10:00 a. m., November 7th. Appellant arrived in Los Angeles the morning of November 7th and upon arrival was met at the airport by Salerno and taken to the latter’s hotel room. At 10:00 a. m. agent Van Natter met Salerno in a downtown restaurant and was told by Salerno that the heroin was in and that he was ready to make delivery. Van Natter agreed to buy the 20 ounces previously agreed upon plus an additional 14 ounce package for a price of $8500. Salerno said that he would-go to the hotel where “his partner” was waiting,. get the narcotics, and deliver them to the agent in about an hour. Two officers followed Salerno to his hotel and arrested him when he came out of the hotel ten minutes later carrying two packages wrapped in flowered paper. One sealed package contained 20 ounces of heroin and the other package contained 14 ounces of heroin. The arresting officers accompanied Salerno to his hotel room where appellant was found in bed. Wrapping paper of the same type as that in which the packages of heroin were wrapped was found in the room. Salerno admitted that appellant was present in the room at the time he wrapped the packages of narcotics. Currency in the amount of $2,-800, including $960 of the marked government bills was discovered in a bureau drawer. Viewing the evidence adduced in this case, as we are required to do, in the light most favorable to the Government, we find no difficulty in determining that there is substantial evidence to support the judgment. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Woodard Laboratories v. United States, 9 Cir., 1952, 198 F.2d 995. Appellant strongly urges that -when the Government relies upon circumstantial evidence for a conviction, the evidence must not only be consistent with guilt but inconsistent with every reasonable hypothesis of innocence. This is the language sometimes used in instructions to juries which, in many cases, serves no other purpose than to confuse. But here, the experienced trial Judge was conversant with the rules of evidence and knew how to apply them. He had no difficulty in finding that the evidence in this case was inconsistent with every reasonable hypothesis of innocence and neither do we. If the evidence is sufficient to convince beyond a reasonable doubt that the charge is true it is immaterial whether it be circumstantial or direct. Guilt can be satisfactorily established from “ a ‘development and a collocation of circumstances’.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680. On cross examination a witness made a response which appellant’s counsel moved to strike. The Court denied the motion. Appellant urges this as error. Before a jury immaterial evidence may sometimes be harmful. Not so before a Court. It is apparent that the Court, in this instance, would attach no significance to answer given. The argument is completely devoid of merit. Judgment affirmed. . Co-defendant Salerno was found guilty on three counts. His appeal was dismissed on April 22, 1953. 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 18? Answer with a number. Answer:
sc_casedisposition	E	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. PUBLIC AFFAIRS ASSOCIATES, INC., trading as PUBLIC AFFAIRS PRESS, v. RICKOVER. No. 36. Argued November 6-7, 1961. Decided March 5, 1962. Harry N. Rosen field argued the cause for Public Affairs Associates, Inc. With him on the briefs was Stanley B. Frosh. Joseph A. McDonald argued the cause for Vice Admiral Rickover. With him on the briefs were Edwin S. Nail and Harry Buchman. Together with No. 55, Rickover v. Public Affairs Associates, Inc., Trading as Public Affairs Press, also on certiorari to the same Court. Per Curiam. These two cases arose under the Declaratory Judgment Act of June 14, 1934, 48 Stat. 955, as amended, now 28 U. S. C. (1958 ed.) §§ 2201 and 2202. The plaintiff, an educational publishing corporation, asked defendant, Vice Admiral Rickover, for leave to publish, to an undefined extent, uncopyrighted speeches he had theretofore delivered. He refused on the ground that what he claimed to be exclusive publishing rights had been sold to another publisher, and he gave notice of copyright on speeches subsequent to the plaintiff's demand. Since the defendant threatened restraint of plaintiff’s use of his speeches, the plaintiff sought this declaratory relief. The District Court dismissed the complaint on the merits, 177 F. Supp. 601. The Court of Appeals (one judge dissenting), agreeing with the District Court that the defendant had, as to his uncopyrighted speeches, the common-law rights of an author, held that he had forfeited his rights by reason of their “publication”; as to his copyrighted speeches, that court remanded the case to the District Court for determination of the extent to which “fair use” was open to the plaintiff. 109 U. S. App. D. C. 128, 284 F. 2d 262. By petition for certiorari and cross-petition both parties sought review and because serious public questions were in issue we brought the cases here. 365 U. S. 841. The Declaratory Judgment Act was an authorization, not a command. It gave the federal courts competence to make a declaration of rights; it did not impose a duty to do so. Brillhart v. Excess Ins. Co., 316 U. S. 491, 494, 499; Great Lakes Co. v. Huffman, 319 U. S. 293, 299-300; Federation of Labor v. McAdory, 325 U. S. 450, 462; Mechling Barge Lines v. United States, 368 U. S. 324, 331. Of course a District Court cannot decline to entertain such an action as a matter of whim or personal disinclination. “A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank, 333 U. S. 426, 431. We have cautioned against declaratory judgments on issues of public moment, even falling short of constitutionality, in speculative situations. Eccles v. Peoples Bank, supra, at 432. In these cases we are asked to determine matters of serious public concern. They relate to claims to in tel-lectual property arising out of public employment. They thus raise questions touching the responsibilities and immunities of those engaged in the public service, particularly high officers, and the rightful demands of the Government and the public upon those serving it. These are delicate problems; their solution is bound to have far-reaching import. Adjudication of such problems, certainly by way of resort to a discretionary declaratory judgment, should rest on an adequate and full-bodied record. The record before us is woefully lacking in these requirements. The decisions of the courts below rested on an Agreed Statement of Facts which sketchily summarized the circumstances of the preparation and of the delivery of the speeches in controversy in relation to the Vice Admiral’s official duties. The nature and scope of his duties were not clearly defined and less than an adequate exposition of the use by him of government facilities and government personnel in the preparation of these speeches was given. Administrative practice, insofar as it may relevantly shed light, was not explored. The Agreed Statement of Facts was in part phrased, modified and interpreted in the course of a running exchange between trial judge and counsel. The extent of the agreement of counsel to the Agreed Statement of Facts was in part explained in the course of oral argument in the District Court. None of the undetailed and loose, if not ambiguous, statements in the Agreed Statement of Facts was subject to the safeguards of critical probing through examination and cross-examination. This is all the more disturbing where vital public interests are implicated in a requested declaration and the Government asserted no claim (indeed obliquely may be deemed not to have disapproved of the defendant’s claim) although the Government was invited to appear in the litigation as amicus curiae and chose not to do so. So fragile a record is an unsatisfactory basis on which to entertain this action for declaratory relief. Accordingly, the judgment of the Court of Appeals is vacated, with direction to return the case to the District Court for disposition not inconsistent with this opinion. It is so ordered. 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:
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. UNITED STATES of America, Plaintiff-Appellee, v. Jack D. BROCKSMITH, Defendants-Appellant. No. 91-2208. United States Court of Appeals, Seventh Circuit. Argued Nov. 6, 1992. Decided May 5, 1993. Rehearing and Rehearing In Banc Denied July 15, 1993. Patrick J. Chesley and Rodger A. Heaton (argued), Asst. U.S. Attys., Office of the U.S. Atty., Springfield, IL, for plaintiff-appellee. Kenneth A. Kozel (argued), LaSalle, IL, for defendant-appellant. Before POSNER and FLAUM, Circuit Judges, and WILLIAMS, District Judge. The Honorable Ann Claire Williams, District Judge for the Northern District of Illinois, sitting by designation. FLAUM, Circuit Judge. Jack D. Brocksmith owned several agencies in Quincy, Illinois, that specialized in selling insurance and annuities to the elderly. Unfortunately for his customers, Brocksmith began playing a shell game with their accounts. Brocksmith would receive premium payments from individuals who wanted to purchase insurance policies. He would delay submitting their insurance applications for six to eight weeks, in the meantime drawing on their money to pay for his personal expenses. If the customers complained that they were not receiving their policies, Brocksmith would say there was a problem with the insurance company; to handle things on that end, he would omit the date on the applications he forwarded, or white-out the real date and replace it with a later one. Eventually, when premiums from other customers came in, he would send their money to the carriers to cover the earlier applications, and repeat the cycle again. In late 1986, Brocksmith sold several large policies or annuities issued by Fidelity Bankers Life Insurance Company. To Mary and Paul Sill, he sold two $25,000 single-premium deferred annuities. The $50,000 in premium checks were deposited into the general operating account of Brocksmith’s business. Brocksmith used the money to pay for all the insurance policies he had delayed up to that point and to pay his office expenses. That left only $18,000 remaining in the account. In November of 1986, Brocksmith sold Jean and Irvin Klingler each a $50,000 single-premium life insurance policy. The Klinglers gave Brocksmith a $30,000 check up front, made out to his business rather than the insurance company. That way, Brocksmith explained, they would receive their interest immediately. In fact, Fidelity’s application form contained a tear-off receipt for the purchaser stating that the premium check should be made out to Fidelity, not the agent, and that Fidelity would decide within sixty days whether to issue the policy. This receipt was already torn off before the application reached the Klinglers. On December 1, Brocksmith sent a letter to the Klinglers indicating that he was forwarding their medical examination forms. He encouraged the Klinglers to take their time completing them, which they were forced to do anyway since Brock-smith did not actually mail the forms until four weeks later. On December 4, Brocksmith sold Willade-an and Carl Sattman each a $50,000 single-premium life insurance policy. They gave Brocksmith a check for $25,000 as a down payment. He used this money to cover the Sills’ annuities. Later in the month, the Sattmans sent in the rest of their premium payment. At the beginning of January 1987, the Klinglers mailed a check for the $70,000 balance they owed. Brocksmith used these funds to pay for the Sattmans’ policies. Now all of his customers were accounted for, except the Klinglers, whose account (after all of Broeksmith’s machinations) was $78,000 short of the amount needed to complete their applications. On February 6, the Klinglers mailed in their medical forms. Jean Klingler became worried because she had not received their policies. She tried several times, unsuccessfully, to reach Brocksmith on the phone. Eventually, on March 23, Brock-smith sent a postcard announcing that he would visit the Klinglers during April. When that date arrived, he sent a letter stating that due to an illness in his family he could not meet them until May. After a few more attempts to set up a meeting, Brocksmith sent another postcard to confirm a date of May 25. During this time, Brocksmith was engaged in a last-ditch effort to avoid disaster. He conceived a plan to fake a robbery of his office — or, more precisely, of the Klinglers’ premium checks. Brocksmith told William Ratcliff, a former employee and current brother-in-law of his, that a large sum of money was missing from his account and was causing trouble between him and his wife. Brocksmith offered to pay Ratcliff if he would leave town and write a letter to his sister saying that he had taken the money. Ratcliff agreed. Brocksmith drove him to the train station in Burlington, Iowa, and bought him a ticket; from there, Ratcliff sent the deceitful letter to Mrs. Brocksmith. Accompanied by his attorney, Brock-smith sat down with the Klinglers in late May to tell them the sad news that someone had broken into his office and stolen their premium checks. He confessed that he had endorsed the checks and left them in his office, and, showing them Ratcliff’s letter, speculated that his former employee was the thief. He tried to comfort the Klinglers with an offer to pay back $10,000 at once and $1000 a month thereafter. To show his good faith, he handed the Klin-glers a check for $10,000. Incredulous at his story, Jean Klingler refused to accept the offer. In the end, it would not have mattered if she had. The check bounced, and a replacement $10,000 money order sent via Federal Express had payment stopped on it a few days later. Brocksmith called his insurance practice “rob[bing] Peter to pay Paul,” Tr. 130-31; a jury called it mail fraud. Brocksmith was convicted of five counts of violating 18 U.S.C. § 1341. Count 1 alleged that the Klinglers mailed a $70,000 check to Brock-smith; count 2 alleged that they mailed medical exam forms to him; count 3 alleged that Itatcliff mailed a letter to Brock-smith's wife; and counts 4 and 5 alleged that Brocksmith mailed two postcards to the Klinglers. Brocksmith was sentenced to three consecutive sentences of five years on counts 1 through 3, and suspended sentences on counts 4 and 5. He was also ordered to pay restitution to the Klinglers in the amount of $7100. Brocksmith raises sixteen different arguments on appeal, some containing as many as eight subparts. He challenges the sufficiency of the evidence on all counts and the length of his sentence, objects to five witnesses' testimony, claims his trial attorney was ineffective and should have been disqualified, alleges prejudicial comments and ex parte communications by the district judge, and criticizes the jury instructions and voir dire questions. Many of these arguments were not made before the district court, are barely a page long in Brocksmith's oversized brief, and are wholly unsupported with case authority. Counsel bears responsibility for narrowing the issues presented on appeal from the entire universe of possible objections to the proceedings below to the small set of arguments that offer a legitimate chance for success. A client is disserved when the most meritorious arguments are drowned in a sea of words. "The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them." United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (Scalia, J.)), cert. denied, - U.S. -, 112 S.Ct. 141, 116 L.Ed.2d 108 (1991). Undeveloped and unsupported claims are waived. See id. Brocksmith's first argument is that his federal prosecution violated the Double Jeopardy Clause of the Fifth Amendment. Two years before this prosecution, the Assistant State's Attorney charged him with knowingly exerting unauthorized control over the Klinglers' assets. Brocksmith was found not guilty of this charge. He now contends that successive prosecutions for the same offense violate the Fifth Amendment. This argument, however, ignores the dual sovereignty doctrine, under which two sovereigns (such as the states and the federal government, see Heath v. Alabama, 474 U.S. 82, 89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985)) may prosecute an individual for the same conduct if it violates the laws of each. "The dual sovereignty doctrine has been a fixture of constitutional law for decades." United States v. Bafia, 949 F.2d 1465, 1478 (7th Cir.1991) (citing United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922)), cert. denied, - U.S. -, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992). Brocksmith contends that the district court should at least have held an eviden-tiary hearing to determine whether his federal prosecution was a "sham." The case of Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), supposedly recognized an exception to the dual sovereignty doctrine in situations where one sovereign's prosecution serves as a tool for a second sovereign that previously prosecuted the defendant. See id. at 123-24, 79 S.Ct. at 678. We have questioned whether Bartkus truly meant to create such an exception, and we have uniformly rejected such claims. See United States v. Paiz, 905 F.2d 1014, 1024 (7th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991). In any event, conversations and cooperative efforts between state and federal investigators of the kind Brocksmith alleges are “undeniably legal” and are, in fact, “a welcome innovation” in law enforcement techniques. See id. at 1024 (quotation omitted). Relatedly, Brocksmith argues that his federal prosecution was barred under the doctrine of collateral estoppel. The Double Jeopardy Clause has been held to embrace principles of issue preclusion, such that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970); United States v. Bailin, 977 F.2d 270, 273-74 (7th Cir.1992). Collateral estoppel cannot apply here because it holds only between the same parties, whereas the United States was not represented in the prior case. See United States v. Sherman, 912 F.2d 907, 909 (7th Cir.1990). Brocksmith’s next set of arguments challenge the sufficiency of the evidence used to prove him guilty of mail fraud. Brocksmith makes several claims that apply to one or another, or all, of the five counts: he argues (1) that the particular mailing occurred after the scheme to defraud had reached fruition; (2) that the particular mailing was not itself unlawful or fraudulent, and thus cannot form the basis of a mail fraud violation; and (3) that no pecuniary loss resulted from the mailing. Brocksmith can only succeed on these claims by demonstrating that no rational trier of fact could find the essential elements of the crime proved beyond a reasonable doubt. See United States v. Johnston, 876 F.2d 589, 593 (7th Cir.), cert. denied, 493 U.S. 953, 110 S.Ct. 364, 107 L.Ed.2d 350 (1989). Brocksmith has, however, misconceived the elements of mail fraud. To establish a violation, the government must prove that a defendant “knowingly caused the mails to be used in furtherance of a scheme to defraud or to obtain money through false or fraudulent pretenses.” United States v. Kuzniar, 881 F.2d 466, 472 (7th Cir.1989). The use of the postal service need not be indispensable to the success of the scheme; a mailing may be merely “incident to an essential part of the scheme” or “a step in [the] plot.” Schmuck v. United States, 489 U.S. 705, 711, 109 S.Ct. 1443, 1448, 103 L.Ed.2d 734 (1989) (quotations omitted). The Schmuck Court held that an individual who purchased cars, turned back their odometers, and then sold them, committed mail fraud when the dealers sent the title-application forms to the state department of transportation. The Court distinguished the defendant’s ongoing fraud in Schmuck from other cases in which the pertinent mailings involved mere “accounting among the potential victims” of the scheme, occurring after the fraudulent scheme had reached fruition. Id. at 714, 109 S.Ct. at 1449. In Schmuck, by contrast, sending the registration forms to the transportation department was a key step in the successful passage of title — “a failure of this passage of title would have jeopardized Schmuck’s relationship of trust and goodwill with the retail dealers upon whose unwitting cooperation his scheme depended.” Id., 489 U.S. at 714-15, 109 S.Ct. at 1450. Each of the mailings for which Brock-smith was indicted constituted a “step in the plot.” Receiving the $70,000 check was surely instrumental to Brocksmith’s scheme; indeed, it was his scheme. The mailing of the medical forms was also instrumental because it allowed Brocksmith to hold onto Klinglers’ money for a longer time; if the Klinglers failed to submit the forms, they would be entitled to a refund of their premiums. Paying Ratcliff to fabricate a story that he stole the Klinglers’ checks was plainly motivated by Brock-smith’s desire to buy time and, more importantly, an excuse for the missing money. Finally, the postcards were used to put the defendants at ease about the delays, as well as to gain more time for himself, and to conceal his misappropriation of the funds. Use of the mails to lull victims into a false sense of security, we have held, violates the mail fraud statute, even if it occurs after the money has been fraudulently obtained. United States v. Chappell, 698 F.2d 308, 311 (7th Cir.), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983). It does not matter that some of these mailings contained no false or misleading information, and individually caused no pecuniary loss; routine and innocent mailings can also supply an element of the offense of mail fraud. See Schmuck, 489 U.S. at 714-15, 109 S.Ct. at 1450 (citing Parr v. United States, 363 U.S. 370, 390, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960)). Brocksmith levels several charges against his appointed trial attorney, Ronald J. Stone. To begin with, Brocksmith alleges that Stone should have been disqualified due to a conflict of interest, because he occasionally acted as a Special Assistant Attorney General for the state of Illinois, representing state agencies in civil rights cases. Brocksmith says he wrote a letter to the clerk of the district court requesting that Stone be released, and a hearing on the matter was held before the district court, but all to no avail-the judge told Stone to continue representing him. Brocksmith neglects to mention one crucial fact in this story: he decided at the hearing to have Stone remain his lawyer. The district court advised Brocksmith that "[i]t would be very simple, very easy for the Court to relieve Mr. Stone of further providing representation to you and appoint another attorney to take over immediately and proceed ahead," Tr. 16, should Brock-smith so desire. Brocksmith responded that he was satisfied with Stone. Tr. 17. This argument is therefore waived. See United States v. Cirrincione, 780 F.2d 620, 624 (7th Cir.1985). Brocksmith also accuses Stone, for the first time in this appeal, of rendering ineffective assistance of counsel. We have explained that ineffective assistance claims are better addressed at the district court level than on appeal, through a motion for new trial or collateral relief, due to the trial judge's superior opportunity to observe counsel's performance firsthand. See United States v. Limehouse, 950 F.2d 501, 503 (7th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1962, 118 L.Ed.2d 563 (1992). In the interest of judicial efficiency, however, we will resolve an ineffective assistance claim "if the issue is sufficiently clear-cut." Johnson v. United States, 805 F.2d 1284, 1290 (7th Cir.1986). That is the case here. As discussed above, Brocksmith has waived any claim of conflict of interest on the part of his attorney. Brocksmith's other allegations are meritless. He complains that fifty-two out of the fifty-five exhibits offered by the government were irrelevant, and that his attorney should have objected to their introduction. Brock-smith cites no cases in support of his argument, nor elaborates on why the exhibits were irrelevant. Because he has shown neither cause nor prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this argument fails. The final challenges Brocksmith raises relate to his sentence. Brocksmith protests the district court's order that he pay restitution of $7100, claiming that the court did not consider the factors listed in 18 U.S.C. § 3580(a), such as the defendant's financial resources, needs, and earning ability. We have ruled that a sentence will be reversed when the defendant can show that it was "not improbable" that the judge failed to consider the requisite statutory factors and that the sentence was affected by this failure. See United States v. Studley, 892 F.2d 518 (7th Cir.1989). Brocksmith has made no such showing here. The one case he cites in support of reversal, United States v. Mahoney, 859 F.2d 47 (7th Cir.1988), involved a restitution order of $288,000 entered against a defendant who earned $30,000 a year. In those circumstances, we were persuaded that the district court had overlooked the defendant's financial capabilities when arriving at a dollar figure for restitution. An order to repay $7100, on the. other hand, does not invite the same inference. Brocksmith also complains that three consecutive terms of 5 years yielded an excessive sentence. In this case, however, five separate violations of the mail fraud statute occurred. We have held that each mailing is a separate offense even if there is only one fraudulent scheme encompassing all the acts. See United States v. Ledesma, 632 F.2d 670, 679 (7th Cir.), cert. denied, 449 U.S. 998, 101 S.Ct. 539, 66 L.Ed.2d 296 (1980). The Sentencing Guidelines do not apply in this case because Brocksmith’s offenses occurred before November 1, 1987. See United States v. Stewart, 865 F.2d 115, 118 (7th Cir.1988). In the absence of the Guidelines’ mandatory penalty scheme, the district court retains great discretion to mete out punishments. 18 U.S.C. § 1341 authorizes a term of imprisonment of up to 5 years for each violation. Since Broeksmith’s sentence was within the statutory range, even if at the upper end, his total term of imprisonment was not improper. Brocksmith’s conviction and sentence are Affirmed. . For example, argument number fifteen states that 18 U.S.C. § 1341, the mail fraud statute, is unconstitutionally vague. It is disturbing enough that Brocksmith ignores the cases in which we have held expressly to the contrary. See, e.g., United States v. Suter, 755 F.2d 523, 527 n. 5 (7th Cir.), cert. denied, 471 U.S. 1103, 105 S.Ct. 2331, 85 L.Ed.2d 848 (1985); United States v. Feinberg, 535 F.2d 1004, 1010 (7th Cir.), cert. denied, 429 U.S. 929, 97 S.Ct. 337, 50 L.Ed.2d 300 (1976). But the real puzzle is why this argument does not appear until page 47 of Brocksmith's appellate brief, since it would moot all the other claims. . The amount of restitution was only $7100 because Fidelity Bankers Life Insurance Company reached a settlement with the Klinglers whereby they received $92,900 in annuities. During her direct examination, Jean Klingler recalled the meeting when Brocksmith told her and her husband that their premium checks had been stolen. Jean Klingler testified that she told the defendant she could not accept his repayment offer because "it was our [life] savings. I was going to live on it for old age.” Tr. 182. Brock-smith did not object at the time, but argued later that he should be allowed to elicit on cross-examination the fact that the Klinglers obtained reimbursement from Fidelity. The district court refused to allow the question. We find no error. The amount of loss sustained by a victim is relevant and admissible evidence in a mail fraud prosecution. See United States v. Elliott, 771 F.2d 1046, 1051 (7th Cir.1985). The fact that a victim received partial reimbursement from another party is not ordinarily relevant. Even if the original testimony was prejudicial because it led the jury to believe, incorrectly, that the Klinglers never recovered their loss, counsel waived the argument by failing to object at the proper time. See United States v. Wynn, 845 F.2d 1439, 1442 (7th Cir.1988). 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_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. AMERICAN AIR TRANSPORT, Inc. v. CIVIL AERONAUTICS BOARD. No. 11575. United States Court of Appeals District of Columbia Circuit. Argued Doc. 19,1952. Decided March 5, 1953. Petition for Rehearing Denied April 15, 1953. Mr. Albert F. Beitel, Washington, D. G, with whom Messrs. George M. Morris and John H. Pratt, Washington, D. G, were on the brief, for petitioner. Mr. John H. Wanner, Associate Gen. Counsel, Civil Aeronautics Board, Washington, D. G, with whom Messrs. Emory T. Nunneley, Jr., Gen. Counsel, Civil Aeronautics Board, and O. D. Ozment, Atty., Civil Aeronautics Board, Washington, D. G, were on the brief, for respondent. Mr. Charles H. Weston, Chief, Appellate Section of the Antitrust Division, Department of Justice, Washington, D. G, entered an appearance for respondent. Before EDGERTON, PRETTYMAN and BAZELON, Circuit Judges. BAZELON, Circuit Judge. . Petitioner was authorized to operate as a large irregular air carrier by a Letter of Registration issued under Part 291.17 (formerly 292.1(d)) of the Civil Aeronautics Board’s Economic Regulations. It seeks review of two Board orders — one suspending and the other revoking that authorization. Since we affirm, only the order of revocation requires discussion. The Board acted under Part 291.20 which provides that Letters of Registration “shall be subject to revocation * ' for knowing and willful violation of any provisions of the act or of any order, rule, or regulation * * It found that petitioner “knowingly, willfully, and flagrantly violated sections 401(a) and 1005(e)” of the Civil Aeronautics Act by conducting regular air operations in violation of (1) Part 291 of the Regulations which authorizes irregular carriers to provide only infrequent services in a non-uniform pattern of operations; and (2) a Board order previously entered against it to comply with Part 291 and to cease and desist from regular services. Part 291 exempts large irregular air carriers from compliance with various economic provisions applicable to certificated carriers authorized under § 401 to engage in regularly scheduled operations. “Irregular” air carriers offering regular services are therefore held to be in violation of the certification requirement of § 401. And § 1005(e), which the revocation proceedings were designed to implement, makes it the duty of every person subject to the Act “to observe and comply with any order, rule, regulation, or certificate issued by the Board * * * so long as the same shall remain in effect.” Petitioner urges that the revocation order is invalid because (1) Part 291 does not apply to its operations, and (2) the cease and desist order is not res judicata against it. The contrary view we take of the cease and desist order is dis-positive of this appeal since that order requires compliance with Part 291. The cease and desist order, entered more than two years prior to the orders under review, was based upon a finding that petitioner’s two round-trip flights per week between New York and San Juan, exceeded “the degree of regularity permitted by Part 292.1” (now Part 291.1). The Board ordered petitioner to cease air transportation unless it complied with Part 291, and specifically proscribed the operation of aircraft “[r]egularlv or with a reasonable degree of regularity [t. e.j] * * * by the operation of a single flight per week on the same day of each week between the same two points, or * * * by the recurrence of operations of two round-trip-flights, or flights varying from two to three or more such flights, between any same two points each week in succeeding weeks, without there intervening other weeks or approximately similar periods at irregular but frequent intervals during which no such flights are operated so as thereby to result in appreciable definite breaks in service * * We will not go behind that order on this appeal. Petitioner is bound by its failure to invoke judicial review either within the sixty clays provided by the Act or by requesting leave of court thereafter. We recognize that there may be circumstances under which the application of the common law doctrine of res judicata to administrative determinations may be relaxed. But here our attention has not been drawn to any such circumstances. Thus we hold that the cease and desist order is res judicata and petitioner’s operations are accordingly governed by Part 291. But even if we were to go behind the cease and desist order for the purpose of considering petitioner’s objections to Part 291, the result would be the same. Petitioner claims that regulation inapplicable because certain conditions therein were not in existence when it commenced operations early in June 1946. At that time, a 1938 regulation was in effect. It defined an operation as non-scheduled (later designated “irregular”), “if the air carrier does not hold out to the public by advertisement or otherwise that it will operate one or more airplanes between any designated points regularly or with a reasonable degree of regularity * * Effective June IS, 1946, the Board amended that regulation to read, as Part 291 does now, that an operation is non-scheduled if the air carrier does not “hold out to the public expressly or by a course of conduct that it operates * * * regularly or with a reasonable degree of regularity * * .” We find no merit in the contention that the 1946 phrase “by a course of conduct” imposes different limitations on petitioner’s operations than the 1938 phrase “by advertisement or otherwise.” Moreover, the 1938 regulation was to remain in force only “[ujntil the Authority [the Board] shall adopt further rules, regulations or orders with respect to such matter * .” And since Part 291 and the intervening regulations embodied therein constitute an adoption by the Board of further regulations with respect to such carriers, petitioner would on that account alone be subject to Part 291. All that remains then is to determine whether there is substantial evidence in the record as a whole to support the Board’s finding that petitioner has willfully violated Part 291 and the cease and desist order. Clearly, there is. Following entry of the cease and desist order, petitioner increased rather than decreased the regularity of its service. To cite merely one example, it expanded operations from an average of 2 flights per week between New York and San Juan, Puerto Rico for some 52 weeks to 4 flights per week between Miami and Newark for 56 consecutive weeks. ■[4,5] Equally without merit are other objections to the revocation order. One objection is that there was a denial of due process in the Board’s failure to schedule a hearing on petitioner’s long pending application for certification under § 401. That objection does not bear on the violations involved here, and the remedy, if any, is not available on this appeal. Petitioner’s further objection that § 1007(a) of the Act “places the enforcement of orders and regulations squarely in the district court” is not in point. Here the Board sought to revoke an operating authority for violations of its order and regulations, not “to enforce obedience thereto * .» The orders under review are Affirmed. . 14 Code Fed. Regs. § 292 (1949), § 291 (Cum.Supp. 1951). . Both, orders have been stayed pending review. . 14 Code Fed. Regs. § 291.20 (Cum.Supp. 1951); see Air Transport Associates, Inc. v. Civil Aeronautics Board, 1952, 91 U.S.App.D.C. 147, 199 F.2d 181, certiorari denied, 1953, 344 U.S. 922, 73 S.Ct. 386. . 52 Stat. 987, 1024 (1938), as amended, 49 U.S.C.A. §§ 481(a), 645(e) (1946). . Part 291.1 provides in pertinent part: “No air carrier shall be deemed to be an irregular air carrier unless the air transportation services offered and performed by it are of such infrequency as to preclude an implication of a uniform pattern or normal consistency of operation * 4” 14 Oode Fed. Regs. (Cum. Supp. 1951). . Civil Aeronautics Board v. Modern Air Transport, Inc., 2 Cir., 1950, 179 F.2d 622, 625. . C.A.B. Opinion and Order No. 6780, p. 15 (September 10, 1952). . See note 4, supra. . C.A.B. Opinion and Order No. E-3906, pp. 30, 36 (February 15, 1950). . Id. at 37. The Board entered the order under the authority of § 1002(e) of the Act which provides: “If the Board finds, after notice and hearing, in any investigation instituted upon complaint or upon its own initiative, that any person has failed to comply with any provisions of this chapter or any requirement established pursuant thereto, the Board shall issue an appropriate order to compel such person to comply therewith.” 52 Stat. 3018 (1938), as amended, 49 U.S.C.A. § 642(c). . 52 Stat. 1024 (1938), as amended, 49 U.S.C.A. § 648(a) (3946) provides in pertinent part: ‘Any order, affirmative or negative, issued by the Board under this chapter S: * shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition, filed within siwfy days after the entry of such order, by any person disclosing a substantial interest in such order. After the expiration of said sixty days a petition may be filed only by leave of court upon a showing of reasonable grounds for failure to file the petition theretofore.” (Emphasis supplied.) . For a discussion of res judicata and the administrative process, see Davis, Administrative Law 563-613 (1953). . Federal Trade Commission v. Morton Salt Co.. 1948, 334 U.S. 37, 54, 68 S.Ct. 822, 92 L.Ed. 1196; Aiken v. Cogswell, 91 U.S.App.D.C. 339, 201 F.2d 705; United States v. Willard Tablet Co., 7 Cir., 1944, 141 F.2d 141, 143, 152 A.L.R. 1194; Plumy v. United States, 9 Cir., 1942, 126 F.2d 601, 603, certiorari denied, 1942, 317 U.S. 637, 63 S.Ct. 28, 87 L.Ed. 513. . C.A.B. Reg. 400-1, as amended, December 7, 1938 (emphasis supplied). . See note 1, supra (emphasis supplied). . See note 14, supra. . See note 4, supra. Petitioner’s application was filed on April 4, 1949, following commencement of cease and desist order proceedings but prior to the entrance of the order in February 1950. . 52 Stat. 1025 (1938), as amended, 49 U.S.C.A. § 647(a) (1946). 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_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 Robert Lee MARTINEZ, Appellant, v. UNITED STATES of America, Appellee. No. 8034. United States Court of Appeals Tenth Circuit. April 7, 1965. Charles L. Saunders, Jr., Denver, Colo., for appellant. Lewis 0. Campbell, Asst. U. S. Atty. (John Quinn, U. S. Atty., with him on the brief), for appellee. Before PICKETT, BREITENSTEIN and HILL, Circuit Judges. PER CURIAM. A jury in the United States District Court for the District of New Mexico found appellant Martinez guilty of four counts charging narcotic offenses, and the court sentenced him to 6-year concurrent terms. He did not appeal. While a prisoner at La Tuna, Texas, he filed a habeas corpus petition in the sentencing court which treated it as a motion under 28 U.S.C. § 2255, and denied it without a hearing. Reversal is sought on the ground that a hearing should have been held. The record and the order of the trial court show that the appellant was arrested on a warrant, was brought before a United States commissioner, was tried by a jury, did not testify in his own behalf, and was represented by retained counsel both before the commissioner and in the jury trial. No showing is made of the use at the trial of any illegally seized evidence or of any incriminating statements of the accused after arrest. The papers filed by the appellant in the trial court defy intelligent analysis. Various legal principles are asserted without attempt to relate them to the facts of the case. An application for post-conviction relief, whether it be under § 2255 or by way of habeas corpus, which states bald conclusions unsupported by allegation of fact is legally insufficient and may be denied without a hearing. In this court appointed counsel urges that the trial court should have appointed counsel for appellant and required that he be furnished with a trial transcript. A federal prisoner is entitled to no such exploratory aids on the basis of the showing made here. In a collateral attack on a judgment in a criminal case, the prisoner must allege some factual basis for the relief sought. This appellant has not done so. If a legally sufficient motion is subsequently filed, it should not be considered repetitious. Affirmed. . Stephens v. United States, 10 Cir., 246 F.2d 607. See also Sanders v. United States, 373 U.S. 1, 19, 83 S.Ct. 1068, 10 L.Ed.2d 148. 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_appstate	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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. LEHN & FINK PRODUCTS CORPORATION v. COMMISSIONER OF INTERNAL REVENUE. Nos. 9335, 9336. Circuit Court of Appeals, Third Circuit. Argued Dec. 2, 1947. Decided Jan. 6, 1948. Montgomery B. Angelí, of New York City (Lucius A. Buck, D. Nelson Adams and Chauncey Belknap, all of New York City, on the brief), for petitioner. I. Henry Kutz, of Washington, D.C. (Theron Lamar Caudle, Asst.Atty.Gen., and Helen R. Carloss, Sp.Asst. to the Atty. Gen., on the brief), for respondent. Before BIGGS, MARIS and KALODNER, Circuit Judges. PER CURIAM. The question presented by the appeals at bar is whether the Tax Court’s findings of fair market value of certain property, including trade-marks, trade names, secret processes, formulas and good will of A. S. Hinds Company possessed substantial basis in the evidence, or were arbitrary or capricious. See 7 T.C.287. Examination of the record and of the briefs filed by the parties and consideration of the oral argument convince us that the conclusions of the Tax Court do find substantial ground in the evidence. As we stated in Cochran v. Commissioner, 3 Cir., 163 F.2d 153, 155, the values of properties “are purely questions of fact”. We went on to say that if there was any evidentiary basis for the Tax Court’s finding we could not substitute our own evaluation for that of the Tax Court. The appeal at bar is ruled by such cases as Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, and Commissioner v. Scottish American Co., 323 U.S. 119, 65 S.Ct. 169, 89 L.Ed. 113. Accordingly the decisions of the Tax Court will be affirmed. Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. 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. TAHOE-SIERRA PRESERVATION COUNCIL, INC., et al. v. TAHOE REGIONAL PLANNING AGENCY et al. No. 00-1167. Argued January 7, 2002 — Decided April 23, 2002 Michael M. Berger argued the cause for petitioners. With him on the briefs were Gideon Kanner and Lawrence L. Hoffman. John G. Roberts, Jr., argued the cause for respondents. With him on the brief were Frankie Sue Del Papa, Attorney General of Nevada, and William J. Frey, Deputy Attorney General, Bill Lockyer, Attorney General of California, Richard M. Frank, Chief Assistant Attorney General, Matthew Rodriquez, Senior Assistant Attorney General, and Daniel L. Siegel, Supervising Deputy Attorney General, E. Clement Shute, Jr., Fran M. Layton, Ellison Folk, John L. Marshall, and Richard J. Lazarus. Solicitor General Olson argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Assistant Attorney General Cru-den, Deputy Solicitor General Kneedler, and Malcolm L. Stewart Briefs of amici curiae urging reversal were filed for the American Association of Small Property Owners et al. by Martin S. Kaufman; for the American Farm Bureau Federation et al. by John J. Rademacher and Nancy McDonough; for the Institute for Justice by William H. Mellor, Clint Bolick, Scott Bullock, and Richard A. Epstein; for the National Association of Home Builders by Christopher G. Senior and David Crump; for the Pacific Legal Foundation et al. by R. S. Radford, June Babiracki Barlow, and Sonia M. Younglove; and for the Washington Legal Foundation by Daniel J. Popeo, Rickard A. Samp, and Douglas B. Levene. Briefs of amici curiae urging affirmance were filed for the State of Vermont et al. by William H. Sorrell, Attorney General of Vermont, and Bridget Asay, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Richard Blumentkal of Connecticut, Robert A. Butterworth of Florida, Earl I. Anzai of Hawaii, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Tkomas F. Reilly of Massachusetts, Mike McGrath of Montana, John J. Farmer, Jr., of New Jersey, Eliot Spitzer of New York, Roy Cooper of North Carolina, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Anabelle Rodriguez of Puerto Rico, Sheldon Whitehouse of Rhode Island, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John-Cornyn of Texas, and Christine O. Gregoire of Washington; for the American Planning Association et al. by Robert H. Freilich; for the Council of State Governments et al. by Richard Ruda and Timothy J. Dowling; for the National Audubon Society et al. by John D. Echeverría; and for Thomas Dunne et al. by Karl M. Manheim. Nancie G. Marzulla filed a brief for Defenders of Property Rights as amicus curiae. Justice Stevens delivered the opinion of the Court. The question presented is whether a moratorium on development imposed during the process of devising a comprehensive land-use plan constitutes a per se taking of property requiring compensation under the Takings Clause of the United States Constitution. This case actually involves two moratoria ordered by respondent Tahoe Regional Planning Agency (TRPA) to maintain the status quo while studying the impact of development on Lake Tahoe and designing a strategy for environmentally sound growth. The first, Ordinance 81-5, was effective from August 24, 1981, until August 26,1983, whereas the second more restrictive Resolution 83-21 was in effect from August 27, 1983, until April 25, 1984. As a result of these two directives, virtually all development on a substantial portion of the property subject to TRPA’s jurisdiction was prohibited for a period of 32 months. Although the question we decide relates only to that 32-month period, a brief description of the events leading up to the moratoria and a comment on the two permanent plans that TRPA adopted thereafter will clarify the narrow scope of our holding. The relevant facts are undisputed. The Court of Appeals, while reversing the District Court on a question of law, accepted all of its findings of fact, and no party challenges those findings. All agree that Lake Tahoe is “uniquely beautiful,” 34 F. Supp. 2d 1226, 1230 (Nev. 1999), that President Clinton was right to call it a “ ‘national treasure that must be protected and preserved,’” ibid., and that Mark Twain aptly described the clarity of its waters as “‘not merely transparent, but dazzlingly, brilliantly so,’” ibid. (emphasis added) (quoting M. Twain, Roughing It 174-175 (1872)). Lake Tahoe’s exceptional clarity is attributed to the absence of algae that obscures the waters of most other lakes. Historically, the lack of nitrogen and phosphorous, which nourish the growth of algae, has ensured the transparency of its waters. Unfortunately, the lake’s pristine state has deteriorated rapidly over the past 40 years; increased land development in the Lake Tahoe Basin (Basin) has threatened the “‘noble sheet of blue water’” beloved by Twain and countless others. 34 F. Supp. 2d, at 1230. As the District Court found, “[d]ramatie decreases in clarity first began to be noted in the late 1950’s/early 1960’s, shortly after development at the lake began in earnest.” Id., at 1231. The lake’s unsurpassed beauty, it seems, is the wellspring of its undoing. The upsurge of development in the area has caused “increased nutrient loading of the lake largely because of the increase in impervious coverage of land in the Basin resulting from that development.” Ibid. “Impervious coverage — such as asphalt, concrete, buildings, and even packed dirt — prevents precipitation from being absorbed by the soil. -Instead, the water is gathered and concentrated by such coverage. Larger amounts of water flowing off a driveway or a roof have more erosive force than scattered raindrops falling over a dispersed area — especially one covered with indigenous vegetation, which softens the impact of the raindrops themselves.” Ibid. Given this trend, the District Court predicted that “unless the process is stopped, the lake will lose its clarity and its trademark blue color, becoming green and opaque for eternity.” Those areas in the Basin that have steeper slopes produce more runoff; therefore, they are usually considered “high hazard” lands. Moreover, certain areas near streams or wetlands known as “Stream Environment Zones” (SEZs) are especially vulnerable to the impact of development because, in their natural state, they act as filters for much of the debris that runoff carries. Because “[t]he most obvious response to this problem ... is to restrict development around the lake — especially in SEZ lands, as well as in areas already naturally prone to runoff,” id., at 1232, conservation efforts have focused on controlling growth in these high hazard areas. In the 1960’s, when the problems associated with the burgeoning development began to receive significant attention, jurisdiction over the Basin, which occupies 501 square miles, was shared by the States of California and Nevada, five counties, several municipalities, and the Forest Service of the Federal Government. In 1968, the legislatures of the two States adopted the Tahoe Regional Planning Compact, see 1968 Cal. Stats, no. 998, p. 1900, § 1; 1968 Nev. Stats, p. 4, which Congress approved in 1969, Pub. L. 91-148, 83 Stat. 360. The compact set goals for the protection and preservation of the lake and created TRPA as the agency assigned “to coordinate and regulate development in the Basin and to conserve its natural resources.” Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 394 (1979). Pursuant to the compact, in 1972 TRPA adopted a Land Use Ordinance that divided the land in the Basin into seven “land capability districts,” based largely on steepness but also taking into consideration other factors affecting runoff. Each district was assigned a “land coverage coefficient — a recommended limit on the percentage of such land that could be covered by impervious surface.” Those limits ranged from 1% for districts 1 and 2 to 30% for districts 6 and 7. Land in districts 1,2, and 3 is characterized as “high hazard” or “sensitive,” while land in districts 4, 5, 6, and 7 is “low hazard” or “non-sensitive.” The SEZ lands, though often treated as a separate category, were actually a subcategory of district 1. 34 F. Supp. 2d, at 1232. Unfortunately, the 1972 ordinance allowed numerous exceptions and did not significantly limit the construction of new residential housing. California became so dissatisfied with TRPA that it withdrew its financial support and unilaterally imposed stricter regulations on the part of the Basin located in California. Eventually the two States, with the approval of Congress and the President, adopted an extensive amendment to the compact that became effective on December 19, 1980. Pub. L. 96-551, 94 Stat. 3233; Cal. Govt. Code Ann. §66801 (West Supp. 2002); Nev. Rev. Stat. §277.200 (1980). The 1980 Tahoe Regional Planning Compact (Compact) redefined the structure, functions, and voting procedures of TRPA, App. 37, 94 Stat. 3235-3238; 34 F. Supp. 2d, at 1233, and directed it to develop regional “environmental threshold carrying capacities” — a term that embraced “standards for air quality, water quality, soil conservation, vegetation preservation and noise.” 94 Stat. 3235,3239. The Compact provided that TRPA “shall adopt” those standards within 18 months, and that “[w]ithin 1 year after” their adoption (i. e., by June 19,1983), it “shall” adopt an amended regional plan that achieves and maintains those carrying capacities. Id., at 3240. The Compact also contained a finding by the legislatures of California and Nevada “that in order to make effective the regional plan as revised by [TRPA], it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan.” Id., at 3243. Accordingly, for the period prior to the adoption of the final plan (“or until May 1, 1983, whichever is earlier”), the Compact itself prohibited the development of new subdivisions, condominiums, and apartment buildings, and also prohibited each city and county in the Basin from granting any more permits in 1981, 1982, or 1983 than had been granted in 1978. During this period TRPA was also working on the development of a regional water quality plan to comply with the Clean Water Act, 33 U. S. C. § 1288 (1994 ed.). Despite the fact that TRPA performed these obligations in “good faith and to the best of its ability,” 34 F. Supp. 2d, at 1233, after a. few months it concluded that it could not meet the deadlines in the Compact. On June 25, 1981, it therefore enacted Ordinance 81-5 imposing the first of the two mora-toria on development that petitioners challenge in this proceeding. The ordinance provided that it would become effective on August 24,1981, and remain in effect pending, the adoption of the permanent plan required by the Compact. App. 159,191. The District Court made a detailed analysis of the ordinance, noting that it might even prohibit hiking or picnicking on SEZ lands, but construed it as essentially banning any construction or other activity that involved the removal of Vegetation or the creation of land coverage on all SEZ lands, as well as on class 1, 2, and 3 lands in California. 34 F. Supp. 2d, at 1233-1235. Some permits could be obtained for such construction in Nevada if certain findings were made. Id., at 1235. It is undisputed, however, that Ordinance 81-5 prohibited the construction of any new residences on SEZ lands in either State and on class 1, 2, and 3 lands in California. Given the complexity of the task of defining “environmental threshold carrying capacities” and the division of opinion within TRPA’s governing board, the District Court found that it was “unsurprising” that TRPA failed to adopt those thresholds until August 26, 1982, roughly two months after the Compact deadline. Ibid. Under a liberal reading of the Compact, TRPA then had until August 26, 1983, to adopt a new regional plan. 94 Stat. 3240. “Unfortunately, but again not surprisingly, no regional plan was in place as of that date.” 34 F. Supp. 2d, at 1235. TRPA therefore adopted Resolution 83-21, “which completely suspended all project reviews and approvals, including the acceptance of new proposals,” and which remained in effect until a new regional plan was adopted on April 26,1984. Thus, Resolution 83-21 imposed an 8-month moratorium prohibiting all construction on high hazard lands in either State. In combination, Ordinance 81-5 and Resolution 83-21 effectively prohibited all construction on sensitive lands in California and on all SEZ lands in the entire Basin for 32 months, and on sensitive lands in Nevada (other than SEZ lands) for eight months. It is these two moratoria that are at issue in this case. On the same day that the 1984 plan was adopted, the State of California filed an action seeking to enjoin its implementation on the ground that it failed to establish land-use controls sufficiently stringent to protect the Basin. Id., at 1236. The District Court entered an injunction that was upheld by the Court of Appeals and remained in effect until a completely revised plan was adopted in 1987. Both the 1984 injunction and the 1987 plan contained provisions that prohibited new construction on sensitive lands in the Basin. As the case comes to us, however, we have no occasion to consider the validity of those provisions. f-H Approximately two months after the adoption of the 1984 plan, petitioners filed parallel actions against TRPA and other defendants in federal courts in Nevada and California that were ultimately consolidated for trial in the District of Nevada. The petitioners include the Tahoe-Sierra Preservation Council, Inc., a nonprofit membership corporation representing about 2,00.0 owners of both improved and unimproved parcels of real estate in the Lake Tahoe Basin, and a class of some 400 individual owners of vacant lots located either on SEZ lands or in other parts of districts 1, 2, or 3. Those individuals purchased their properties prior to the effective date of the 1980 Compact, App. 34, primarily for the purpose of constructing “at a time of their choosing” a single-family home “to serve as a permanent, retirement or vacation residence,” id., at 86. When they made those purchases, they did so with the understanding that such construction was authorized provided that “they complied with all reasonable requirements for building.” Ibid. Petitioners’ complaints gave rise to protracted litigation that has produced four opinions by the Court of Appeals for the Ninth Circuit and several published District Court opinions. For present purposes, however, we need only describe those courts’ disposition of the claim that three actions taken by TRPA — Ordinance 81-5, Resolution 83-21, and the 1984 regional plan — constituted takings of petitioners’ property without just compensation. Indeed, the challenge to the 1984 plan is not before us because both the District Court and the Court of Appeals held that it was the federal injunction against implementing that plan, rather than the plan itself, that caused the post-1984 injuries that petitioners allegedly suffered, and those rulings are not encompassed within our limited grant of certiorari. Thus, we limit our discussion to the lower courts’ disposition of the claims based on the 2-year moratorium (Ordinance 81-5) and the ensuing 8-month moratorium (Resolution 83-21). The District Court began its constitutional analysis by identifying the distinction between a direct government appropriation of property without just compensation and a government regulation that imposes such a severe restriction on the owner’s use of her property that it produces “nearly the same result as a direct appropriation.” 34 F. Supp. 2d, at 1238. The court noted that all of the claims in this case “are of the ‘regulatory takings’ variety.” Id., at 1239. Citing our decision in Agins v. City of Tiburon, 447 U. S. 255 (1980), it then stated that a “regulation will constitute a taking when either: (1) it does not substantially advance a legitimate state interest; or (2) it denies the owner economically viable use of her land.” 34 F. Supp. 2d, at 1239. The District Court rejected the first alternative based on its finding that “further development on high hazard lands such as [petitioners’] would lead to significant additional dámage to the lake.” Id., at 1240. With respect to the second alternative, the court first considered whether the analysis adopted in Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), would lead to the conclusion that TRPA had effected a “partial taking,” and then whether those actions had effected a “total taking.” Emphasizing the temporary nature of the regulations, the testimony that the “average holding time of a lot in the Tahoe area between lot purchase and home construction is twenty-five years,” and the failure of petitioners to offer specific evidence of harm, the District Court concluded that “consideration of the Penn Central factors clearly leads to the conclusion that there was no taking.” 34 F. Supp. 2d, at 1240. In the absence of evidence regarding any of the individual plaintiffs, the court evaluated the “average” purchasers’ intent and found that such purchasers “did not have reasonable, investment-backed expectations that they would be able to build single-family homes on their land within the six-year period involved in this lawsuit.” Id., at 1241. The District Court had more difficulty with the “total taking” issue. Although it was satisfied that petitioners’ property did retain some value during the moratoria, it found that they had been temporarily deprived of “all economically viable use of their land.” Id., at 1245. The court concluded that those actions therefore constituted “categorical” takings under our decision in Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992). It rejected TRPA’s response that Ordinance 81-5 and Resolution 83-21 were “reasonable temporary planning moratoria” that should be excluded from Lucas’ categorical approach. The court thought it “fairly clear” that such interim actions would not have been viewed as takings prior to our decisions in Lucas and First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 (1987), because “[zjoning boards, cities, counties and other agencies used them all the time to ‘maintain the status quo pending study and governmental decision making.’ ” 34 F. Supp. 2d, at 1248-1249 (quoting Williams v. Central, 907 P. 2d 701, 706 (Colo. App. 1995)). After expressing uncertainty as to whether those cases required a holding that moratoria on development automatically effect takings, the court concluded that TRPA’s actions did so, partly because neither the ordinance nor the resolution, even though intended to be temporary from the beginning, contained an express termination date. 34 F. Supp. 2d, at 1250-1251. Accordingly, it ordered TRPA to pay damages to most petitioners for the 32-month period from August 24,1981, to April 25, 1984, and to those owning class 1, 2, or 3 property in Nevada for the 8-month period from August 27, 1983, to April 25, 1984. Id., at 1255. Both parties appealed. TRPA successfully challenged the District Court’s takings determination, and petitioners unsuccessfully challenged the dismissal of their claims based on the 1984 and 1987 plans. Petitioners did not, however, challenge the District Court’s findings or conclusions concerning its application of Penn Central. With respect to the two moratoria, the Ninth Circuit noted that petitioners had expressly disavowed an argument “that the regulations constitute a taking under the ad hoc balancing approach described in Penn Central” and that they did not “dispute that the restrictions imposed on their properties are appropriate means of securing the purpose set forth in the Compact.” Accordingly, the only question before the court was “whether the rule set forth in Lucas applies — that is, whether a categorical taking occurred because Ordinance 81-5 and Resolution 83-21 denied the plaintiffs ‘all economically beneficial or productive use of land.’ ” 216 F. 3d 764, 773 (2000). Moreover, because petitioners brought only a facial challenge, the narrow inquiry before the Court of Appeals was whether the mere enactment of the regulations constituted a taking. Contrary to the District Court, the Court of Appeals held that because the regulations had only a temporary impact on petitioners’ fee interest in the properties, no categorical taking had occurred. It reasoned: “Property interests may have many different dimensions. For example, the dimensions of a property interest may include a physical dimension (which describes the size and shape of the property in question), a functional dimension (which describes the extent to which an owner may use or dispose of the property in question), and a temporal dimension (whieh describes the duration of the property interest). At base, the plaintiffs’ argument is that we should conceptually sever each plaintiff’s fee interest into discrete segments in at least one of these dimensions — the temporal one— and treat each of those segments as separate and distinct property interests for purposes of takings analysis. Under this theory, they argue that there was a categorical taking of one of those temporal segments.” Id., at 774. Putting to one side “cases of physical invasion or occupation,” ibid., the court read our cases involving regulatory taking claims to focus on the impact of a regulation on the parcel as a whole. In its view a “planning regulation that prevents the development of a parcel for a temporary period of time is conceptually no different than a land-use restriction that permanently denies all use on a discrete portion of property, or that permanently restricts a type of use across all of the parcel.” Id., at 776. In each situation, a regulation that affects only a portion of the parcel— whether limited by time, use, or space — does not deprive the owner of all economically beneficial use. The Court of Appeals distinguished Lucas as applying to the “ ‘relatively rare’ ” case in which a regulation denies all productive use of an entire parcel, whereas the moratoria involve only a “temporal ‘slice’” of the fee interest and a form of regulation that is widespread and well established. 216 F. 3d, at 773-774. It also rejected petitioners’ argument that our decision in First English was controlling. According to the Court of Appeals, First English concerned the question whether compensation is an appropriate remedy for a temporary taking and not whether or when such a taking has occurred. 216 F. 3d, at 778. Faced squarely with the question whether a taking had occurred, the court held that Penn Central was the appropriate framework for analysis. Petitioners, however, had failed to challenge the District Court’s conclusion that they could not make out a taking claim under the Penn Central factors. Over the dissent of five judges, the Ninth Circuit denied a petition for rehearing en banc. 228 F. 3d 998 (2000). In the dissenters’ opinion, the panel’s holding was not faithful to this Court’s decisions in First English and Lucas, nor to Justice Holmes admonition in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 416 (1922), that “ ‘a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.’” 228 F. 3d, at 1003. Because of the importance of the case, we granted certiorari limited to the question stated at the beginning of this opinion. 533 U. S. 948 (2001). We now affirm. Ill Petitioners make only a facial attack on Ordinance 81-5 and Resolution 83-21. They contend that the mere enactment of a temporary regulation that, while in effect, denies a property owner all viable economic use of her property gives rise to an unqualified constitutional obligation to compensate her for the value of its use during that period. Hence, they “face an uphill battle,” Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 495 (1987), that is made especially steep by their desire for a categorical rule requiring compensation whenever the government imposes such a moratorium on development. Under their proposed rule, there is no need to evaluate the landowners’ investment-backed expectations, the actual impact of the regulation on any individual, the importance of the public interest served by the regulation, or the reasons for imposing the temporary restriction. For petitioners, it is enough that a regulation imposes a temporary deprivation— no matter how brief — of all economically viable use to trigger a per se rule that a taking has occurred. Petitioners assert that our opinions in First English and Lucas have already endorsed their view, and that it is a logical application of the principle that the Takings Clause was “designed to bar Government from forcing some people alone to bear burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960). We shall first explain why our cases do not support their proposed categorical rule — indeed, fairly read, they implicitly reject it. Next, we shall explain why the Armstrong principle requires rejection of that rule as well as the less extreme position advanced by petitioners at oral argument. In our view the answer to the abstract question whether a temporary moratorium effects a taking is neither “yes, always” nor “no, never”; the answer depends upon the particular circumstances of the case. Resisting “[t]he temptation to adopt what amount to per se rules in either direction,” Palazzolo v. Rhode Island, 533 U. S. 606, 636 (2001) (O’Connor, J., concurring), we conclude that the circumstances in this case are best analyzed within the Penn Central framework. IV The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings. Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation. But the Constitution contains no comparable reference to regulations that prohibit a property owner from making certain uses of her private property. Our jurisprudence involving condemnations and physical takings is as old as the Republic and, for the most part, involves the straightforward application of per se rules. Our regulatory takings jurisprudence, in contrast, is of more recent vintage and is characterized by “essentially ad hoc, factual inquiries,” Penn Central, 438 U. S., at 124, designed to allow “careful examination and weighing of all the relevant circumstances.” Palazzolo, 533 U. S., at 636 (O’Connor, J., concurring). When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, United States v. Pewee Coal Co., 341 U. S. 114, 115 (1951), regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. Thus, compensation is mandated when a leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary. United States v. General Motors Corp., 323 U. S. 373 (1945); United States v. Petty Motor Co., 327 U. S. 372 (1946). Similarly, when the government appropriates part of a rooftop in order to provide cable TV access for apartment tenants, Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982); or when its planes use private airspace to approach a government airport, United States v. Causby, 328 U. S. 256 (1946), it is required to pay for that share no matter how small. But a government regulation that merely prohibits landlords from evicting tenants unwilling to pay a higher rent, Block v. Hirsh, 256 U. S. 135 (1921); that bans certain private uses of a portion of an owner’s property, Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 (1987); or that forbids the private use of certain airspace, Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), does not constitute a categorical taking. “The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and economic effects of government actions.” Yee v. Escondido, 503 U. S. 519, 523 (1992). See also Loretto, 458 U. S., at 440; Keystone, 480 U. S., at 489, n. 18. This longstanding distinction between acquisitions of property for public use, on the one hand, and regulations prohibiting private usés, on the other, makes it inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a “regulatory taking,” and vice versa. For the same reason that we do not ask whether a physical appropriation advances a substantial government interest or whether it deprives the owner of all economically valuable use, we do not apply our precedent from the physical takings context to regulatory takings claims. Land-use regulations are ubiquitous and most of them impact property values in some tangential way — often in completely unanticipated ways. Treating them all as per se takings would transform government regulation into a luxury few governments could afford. By contrast, physical appropriations are relatively rare, easily identified, and usually represent a greater affront to individual property rights. “This case does not present the ‘classic] taking’ in which the government directly appropriates private property for its own use,” Eastern Enterprises v. Apfel, 524 U. S. 498, 522 (1998); instead the interference with property rights “arises from some public program adjusting the benefits and burdens of economic life to promote the common good,” Penn Central, 438 U. S., at 124. Perhaps recognizing this fundamental distinction, petitioners wisely do not place all their emphasis on analogies to physical takings cases. Instead, they rely principally on our decision in Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992) — a regulatory takings case that, nevertheless, applied a categorical rule — to argue that the Penn Central framework is inapplicable here. A brief review of some of the cases that led to our decision in Lucas, however, will help to explain why the holding in that case does not answer the question presented here. As we noted in Lucas, it was Justice Holmes’ opinion in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), that gave birth to our regulatory takings jurisprudence. In subsequent opinions we have repeatedly and consistently endorsed Holmes’ observation that “if regulation goes too far it will be recognized as a taking.” Id., at 415. Justice Holmes did not provide a standard for determining when a regulation goes “too far,” but he did reject the view expressed in Justice Brandéis’ dissent that there could not be a taking because the property remained in the possession of the owner and had not been appropriated or used by the public.. After Mahon, neither a physical appropriation nor a public use has ever been a necessary component of a “regulatory taking.” In the decades following that decision, we have “generally eschewed” any set formula for determining how far is too far, choosing instead to engage in “ ‘essentially ad hoc, factual inquiries.’ ” Lucas, 505 U. S., at 1015 (quoting Penn Central, 438 U. S., at 124). Indeed, we still resist the temptation to adopt per se rules in our cases involving partial regulatory takings, preferring to examine “a number of factors” rather than a simple “mathematically precise” formula. Justice Brennan’s opinion for the Court in Penn Central did, however, make it clear that even though multiple factors are relevant in the analysis of regulatory takings claims, in such cases we must focus on “the parcel as a whole”: “‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole — here, the city tax block designated as the ‘landmark site.’” Id., at 130-131. This requirement that “the aggregate must be viewed in its entirety” explains why, for example, a regulation that prohibited commercial transactions in eagle feathers, but did not bar other uses or impose any physical invasion or restraint upon them, was not a taking. Andrus v. Allard, 444 U. S. 51, 66 (1979). It also clarifies why restrictions on the use of only limited portions of the parcel, such as setback ordinances, Gorieb v. Fox, 274 U. S. 603 (1927), or a requirement that coal pillars be left in place to prevent mine subsidence, Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S., at 498, were not considered regulatory takings. In each of these cases, we affirmed that “where an owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking.” Andrus, 444 U. S., at 65-66. While the foregoing cases considered whether particular regulations had “gone too far” and were therefore invalid, none of them addressed the separate remedial question of how compensation is measured once a regulatory taking is established. In his dissenting opinion in San Diego Gas & Elec. Co. v. San Diego, 450 U. S. 621, 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:
sc_decisiondirection	A	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. Edward F. MARACICH, et al., Petitioners v. Michael Eugene SPEARS et al. No. 12-25. Supreme Court of the United States Argued Jan. 9, 2013. Decided June 17, 2013. Joseph R. Guerra, Washington, DC, for Petitioners. Paul D. Clement, Washington, DC, for Petitioners. Joseph R. Guerra, Peter D. Keisler, Eric D. McArthur, Ryan C. Morris, Christopher A. Bates, Sidley Austin LLP, Washington, DC, Philip N. Elbert, James G. Thomas, Elizabeth S. Tipping, Neal & Harwell, PLC, Nashville, TN, Gary L. Compton, Spartanburg, SC, for Petitioners. M. Dawes Cooke, John William Fletcher, Barnwell Whaley, Patterson & Helms, LLC, Charleston, SC, Paul D. Clement, Counsel of Record, Erin E. Murphy, Bancroft PLLC, Washington, DC, for Respondents. Curtis W. Dowling, Matthew G. Gerrald, Barnes, Alford, Stork & Johnson, LLP, Columbia, SC, for Respondents Michael Eugene Spears and Michael Spears, P.A. Justice KENNEDY delivered the opinion of the Court. Concerned that personal information collected by States in the licensing of motor vehicle drivers was being released-even sold-with resulting loss of privacy for many persons, Congress provided federal statutory protection. It enacted the Driver's Privacy Protection Act of 1994, referred to here as the DPPA. See 18 U.S.C. §§ 2721 - 2725. The DPPA regulates the disclosure of personal information contained in the records of state motor vehicle departments (DMVs). Disclosure of personal information is prohibited unless for a purpose permitted by an exception listed in 1 of 14 statutory subsections. See §§ 2721(b)(1)-(14). This case involves the interpretation of one of those exceptions, subsection (b)(4). The exception in (b)(4) permits obtaining personal information from a state DMV for use "in connection with" judicial and administrative proceedings, including "investigation in anticipation of litigation." § 2721(b)(4). The question presented is whether an attorney's solicitation of clients for a lawsuit falls within the scope of (b)(4). Respondents are trial lawyers licensed to practice in South Carolina. They obtained names and addresses of thousands of individuals from the South Carolina DMV in order to send letters to find plaintiffs for a lawsuit they had filed against car dealers for violations of South Carolina law. Petitioners, South Carolina residents whose information was obtained and used without their consent, sued respondents for violating the DPPA. Respondents claimed the solicitation letters were permitted under subsection (b)(4). In light of the text, structure, and purpose of the DPPA, the Court now holds that an attorney's solicitation of clients is not a permissible purpose covered by the (b)(4) litigation exception. I A The State of South Carolina, to protect purchasers of motor vehicles, enacted the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act (MDDA). In June 2006, respondent attorneys were approached by car purchasers who complained about administrative fees charged by car dealerships in certain South Carolina counties, allegedly in violation of the MDDA. The state statute prohibits motor vehicle dealers from engaging in "any action which is arbitrary, in bad faith, or unconscionable and which causes damage to any of the parties or to the public." S.C.Code Ann. § 56-15-40(1) (2006). The MDDA provides that "one or more may sue for the benefit of the whole" where an action is "one of common or general interest to many persons or when the parties are numerous and it is impracticable to bring them all before the court." § 56-15-110(2). On June 23, 2006, one of the respondent attorneys submitted a state Freedom of Information Act (FOIA) request to the South Carolina DMV to determine if charging illegal administrative fees was a common practice so that a lawsuit could be brought as a representative action under the MDDA. The attorney's letter to the DMV requested information regarding "[p]rivate purchases of new or used automobiles in Spartanburg County during the week of May 1-7, 2006, including the name, address, and telephone number of the buyer, dealership where purchased, type of vehicle purchased, and date of purchase." App. 57. The letter explained that the request was made "in anticipation of litigation ... pursuant to the exception in 18 USC § 2721(b)(4) of the Driver's Privacy Protection Act." Ibid. The South Carolina DMV provided the requested information. On August 24, 2006, respondents submitted a second FOIA request to the DMV, also asserting that it was made "in anticipation of litigation ... pursuant to the exception in 18 USC § 2721(b)(4)," for car purchasers in five additional counties during the same week. Id ., at 67. On August 29, 2006, respondents filed suit in South Carolina state court on behalf of four of the consumers who originally contacted them. The case is referred to here, and by the parties, as the Herron suit. The complaint in the Herron suit named 51 dealers as defendants and invoked the MDDA's " group action" provision to assert claims "for the benefit of all South Carolina car buyers wh[o] paid administrative fees," id ., at 128, to those dealers during the same time period. Some of the dealer defendants in the Herron suit filed motions to dismiss for lack of standing because none of the named plaintiffs purchased cars from them. On October 26, 2006, while the motions to dismiss were pending, respondents submitted a new FOIA request to the South Carolina DMV. That request, again citing subsection (b)(4) of the DPPA, sought to locate additional car buyers who could serve as plaintiffs against the dealers who had moved to dismiss. On October 31, 2006, respondents filed an amended complaint, which added four named plaintiffs and increased the number of defendant dealers from 51 to 324. As before, defendant dealerships that had not engaged in transactions with any of the now eight named plaintiffs filed motions to dismiss for lack of standing. On January 3, 2007, using the personal information they had obtained from the South Carolina DMV, respondents sent a mass mailing to find car buyers to serve as additional plaintiffs in the litigation against the dealers. Later in January, respondents made three more FOIA requests to the South Carolina DMV seeking personal information concerning people who had purchased cars from an additional 31 dealerships, again citing the (b)(4) exception. The South Carolina DMV granted all the requests. On January 23, respondents mailed a second round of letters to car buyers whose personal information had been disclosed by the DMV. Respondents sent additional rounds of letters on March 1, March 5, and May 8. Each of the five separate mailings was sent to different recipients. In total, respondents used the information obtained through their FOIA requests to send letters to over 34,000 car purchasers in South Carolina. This opinion refers to the communications sent by respondents simply as the "letters." The letters, all essentially the same, had the heading "ADVERTISING MATERIAL." The letters explained the lawsuit against the South Carolina dealers and asked recipients to contact the respondent-lawyers if interested in participating in the case. Attached to the letter was a reply card that asked a few questions about the recipient's contact information and car purchase and ended with the sentence "I am interested in participating" followed by a signature line. The text of the letter and reply are set out in full in the Appendix, infra . In accordance with South Carolina Rule of Professional Conduct 7.3 (2012), which regulates the solicitation of prospective clients, respondents filed a copy of the letter and a list of recipients' names and addresses with the South Carolina Office of Disciplinary Counsel. In June 2007, respondents sought to amend their complaint to add 247 plaintiffs. The court denied leave to amend and held the named plaintiffs had standing to sue only those dealerships from which they had purchased automobiles and any alleged co-conspirators. In September 2007, respondents filed two new lawsuits on behalf of the additional car buyers. Those subsequent cases were consolidated with the Herron suit. All claims against dealerships without a corresponding plaintiff-purchaser were dropped. B In the case now before the Court, petitioners are South Carolina residents whose personal information was obtained by respondents from the South Carolina DMV and used without their consent to send solicitation letters asking them to join the lawsuits against the car dealerships. Petitioner Edward Maracich received one of the letters in March 2007. While his personal information had been disclosed to respondents because he was one of many buyers from a particular dealership, Maracich also happened to be the dealership's director of sales and marketing. Petitioners Martha Weeks and John Tannerreceived letters from respondents in May 2007. In response to the letter, Tanner called Richard Harpootlian, one of the respondent attorneys listed on the letter. According to Tanner, Harpootlian made an aggressive sales pitch to sign Tanner as a client for the lawsuit without asking about the circumstances of his purchase. In 2009, petitioners filed the instant putative class-action lawsuit in the United States District Court for the District of South Carolina. The complaint alleged that respondents had violated the DPPA by obtaining, disclosing, and using personal information from motor vehicle records for bulk solicitation without the express consent of petitioners and the other class members. Respondents moved to dismiss. The information, they contended, was subject to disclosure because it falls within two statutory exceptions in the DPPA: (b)(1), pertaining to governmental functions, and (b)(4), pertaining to litigation. On cross-motions for summary judgment, the District Court held as a matter of law that respondents' letters were not solicitations and that the use of information fell within the (b)(4) litigation exception. App. to Pet. for Cert. 61a. The District Court also found that respondents' use of personal information was permitted under the (b)(1) governmental-function exception. The Court of Appeals for the Fourth Circuit affirmed. Unlike the District Court, it found that the letters were "solicitation[s]" within the meaning of the DPPA; but it held further that when "solicitation is an accepted and expected element of, and is inextricably intertwined with, conduct satisfying the litigation exception under the DPPA, such solicitation is not actionable." 675 F.3d 281, 284 (2012). This Court granted certiorari to address whether the solicitation of clients is a permissible purpose for obtaining personal information from a state DMV under the DPPA's (b)(4) exception. 567 U.S. ----, 133 S.Ct. 98, --- L.Ed.2d ---- (2012). II To obtain a driver's license or register a vehicle, state DMVs, as a general rule, require an individual to disclose detailed personal information, including name, home address, telephone number, Social Security number, and medical information. See Reno v. Condon, 528 U.S. 141, 143, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000). The enactment of the DPPA responded to at least two concerns over the personal information contained in state motor vehicle records. The first was a growing threat from stalkers and criminals who could acquire personal information from state DMVs. The second concern related to the States' common practice of selling personal information to businesses engaged in direct marketing and solicitation. To address these concerns, the DPPA "establishes a regulatory scheme that restricts the States' ability to disclose a driver's personal information without the driver's consent." Id ., at 144, 120 S.Ct. 666. The DPPA provides that, unless one of its exceptions applies, a state DMV "shall not knowingly disclose or otherwise make available" "personal information" and "highly restricted personal information." §§ 2721(a)(1)-(2). "[P]ersonal information" is "information that identifies an individual, including [a] ... driver identification number, name, address ..., [or] telephone number, ... but does not include information on vehicular accidents, driving violations, and driver's status." § 2725(3). "[H]ighly restricted personal information" is defined as "an individual's photograph or image, social security number, [and] medical or disability information." § 2725(4). The DPPA makes it unlawful "for any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted under section 2721(b) of this title." § 2722(a). A person "who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains." § 2724(a). The DPPA's disclosure ban is subject to 14 exceptions set forth in § 2721(b), for which personal information "may be disclosed." The two exceptions most relevant for the purpose of this case are the litigation exception in subsection (b)(4) and the solicitation exception in (b)(12). The (b)(4) litigation exception is one of the four provisions permitting disclosure not only of personal information but also of highly restricted personal information. § 2721(b)(4) ; § 2725(4). It provides that information may be disclosed: "For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court." The (b)(12) solicitation exception provides that certain personal information, not including highly restricted personal information, may be disclosed: "For bulk distribution for surveys, marketing, or solicitations if the State has obtained the express consent of the person to whom such personal information pertains." The solicitation exception was originally enacted as an opt-out provision, allowing state DMVs to disclose personal information for purposes of solicitation only if the DMV gave individuals an opportunity to prohibit such disclosures. § 2721(b)(12) (1994 ed.). In 1999, Congress changed to an opt-in regime, requiring a driver's affirmative consent before solicitations could be sent. See Condon, supra, at 144-145, 120 S.Ct. 666. III Respondents' liability depends on whether their use of personal information acquired from the South Carolina DMV to solicit clients constitutes a permissible purpose under the DPPA. The District Court held that respondents' conduct was permissible both under the (b)(1) and (b)(4) exceptions. The Court of Appeals ruled that the conduct here was permissible under (b)(4); but, unlike the District Court, it did not address the alternative argument that the conduct was also permissible under (b)(1). As in the Court of Appeals, only the (b)(4) exception is discussed here. A Respondents claim they were entitled to obtain and use petitioners' personal information based on two of the phrases in (b)(4). First, disclosure of personal information is permitted for use "in connection with any civil, criminal, administrative, or arbitral proceeding." § 2721(b)(4). Second, a use in connection with litigation includes "investigation in anticipation of litigation." Ibid . Respondents contend that the solicitation of prospective clients, especially in the circumstances of this case, is both a use "in connection with" litigation and "investigation in anticipation of litigation." 1 If considered in isolation, and without reference to the structure and purpose of the DPPA, (b)(4)'s exception allowing disclosure of personal information "for use in connection with any civil, criminal, administrative, or arbitral proceeding," and for "investigation in anticipation of litigation," is susceptible to a broad interpretation. That language, in literal terms, could be interpreted to its broadest reach to include the personal information that respondents obtained here. But if no limits are placed on the text of the exception, then all uses of personal information with a remote relation to litigation would be exempt under (b)(4). The phrase "in connection with" is essentially "indeterminat[e]" because connections, like relations, " 'stop nowhere.' " New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). So the phrase "in connection with" provides little guidance without a limiting principle consistent with the structure of the statute and its other provisions. See id., at 656, 115 S.Ct. 1671 ("We simply must go beyond the unhelpful text and the frustrating difficulty of defining ['connection with'], and look instead to the objectives of the ERISA statute"); see also California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U.S. 316, 335, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997) ("But applying the 'relate to' provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else"). An interpretation of (b)(4) that is consistent with the statutory framework and design is also required because (b)(4) is an exception to both the DPPA's general prohibition against disclosure of "personal information" and its ban on release of "highly restricted personal information." §§ 2721(a)(1)-(2). An exception to a "general statement of policy" is "usually read ... narrowly in order to preserve the primary operation of the provision." Commissioner v. Clark, 489 U.S. 726, 739, 109 S.Ct. 1455, 103 L.Ed.2d 753 (1989). It is true that the DPPA's 14 exceptions permit disclosure of personal information in a range of circumstances. Unless commanded by the text, however, these exceptions ought not operate to the farthest reach of their linguistic possibilities if that result would contravene the statutory design. Cf. Cowan v. Ernest Codelia, P.C., 149 F.Supp.2d 67 (S.D.N.Y.2001) (rejecting an argument by defense counsel that obtaining from the DMV the home address of the assistant district attorney to send her a harassing letter was a permissible use "in connection with" the ongoing criminal proceeding under (b)(4)). If (b)(4) were read to permit disclosure of personal information whenever any connection between the protected information and a potential legal dispute could be shown, it would undermine in a substantial way the DPPA's purpose of protecting an individual's right to privacy in his or her motor vehicle records. The "in connection with" language in (b)(4) must have a limit. A logical and necessary conclusion is that an attorney's solicitation of prospective clients falls outside of that limit. The proposition that solicitation is a distinct form of conduct, separate from the conduct in connection with litigation permitted under (b)(4) is demonstrated: by the words of the statute itself; by formal rules issued by bar organizations and governing boards; and by state statutes and regulations that govern and direct attorneys with reference to their duties in litigation, to their clients, and to the public. As this opinion explains in more detail, the statute itself, in (b)(12), treats bulk solicitation absent consent as a discrete act that the statute prohibits. And the limited examples of permissible litigation purposes provided in (b)(4) are distinct from the ordinary commercial purpose of solicitation. Canons of ethics used by bar associations treat solicitation as a discrete act, an act subject to specific regulation. And state statutes, including statutes of the State of South Carolina, treat solicitation as a discrete subject for regulation and governance of the profession. It would contradict the idea that solicitation is defined conduct apart from litigation to treat it as simply another aspect of the litigation duties set out in (b)(4). 2 An attorney's solicitation of new clients is distinct from other aspects of the legal profession. "It is no less true than trite that lawyers must operate in a three-fold capacity, as self-employed businessmen as it were, as trusted agents of their clients, and as assistants to the court in search of a just solution to disputes." Cohen v. Hurley, 366 U.S. 117, 124, 81 S.Ct. 954, 6 L.Ed.2d 156 (1961), overruled on other grounds, Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967). Unlike an attorney's conduct performed on behalf of his client or the court, "solicitation by a lawyer of remunerative employment is a business transaction." Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 457, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) ; see also Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 637, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985) (attorney solicitation " 'propose[s] a commercial transaction' "). The "pecuniary motivation of the lawyer who solicits a particular representation" may even " create special problems of conflict of interest." Ohralik, supra, at 461, n. 19, 98 S.Ct. 1912. The distinction between solicitation and an attorney's other duties is also recognized and regulated by state bars or their governing bodies, which treat solicitation as discrete professional conduct. See, e.g ., Cal. Rule Prof. Conduct 1-400 (2013); N.Y. Rule Prof. Conduct 7.3 (2012-2013); Tex. Disciplinary Rules Prof. Conduct 7.02-7.03 (2013); Va. Rule Prof. Conduct 7.3 (Supp. 2012). That, indeed, was true here. Respondents were required by the South Carolina rules of ethics to include certain language in their solicitation letters and to file copies with the South Carolina Office of Disciplinary Counsel. See S.C. Rule Prof. Conduct 7.3. Given the difference between an attorney's commercial solicitation of clients and his duties as an officer of the court, the proper reading of (b)(4) is that solicitation falls outside of the litigation exception. And when (b)(4) is interpreted not to give attorneys the privilege of using protected personal information to propose a commercial transaction, the statute is limited by terms and categories that have meaning in the regular course of professional practice. The exclusion of solicitation from the meaning of "in connection with" litigation draws further support from the examples of permissible litigation uses in (b)(4). The familiar canon of noscitur a sociis, the interpretive rule that "words and people are known by their companions," Gutierrez v. Ada, 528 U.S. 250, 255, 120 S.Ct. 740, 145 L.Ed.2d 747 (2000), provides instruction in this respect. Under this rule, the phrases "in connection with" and "investigation in anticipation of litigation," which are "capable of many meanings," Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961), can be construed in light of their accompanying words in order to avoid giving the statutory exception "unintended breadth," ibid. ; see also United States v. Williams, 553 U.S. 285, 294, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (the canon of noscitur a sociis "counsels that a word is given more precise content by the neighboring words with which it is associated"). The examples of uses "in connection with" litigation that Congress provided in (b)(4) include "the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court." § 2721(b)(4). These uses involve an attorney's conduct when acting in the capacity as an officer of the court, not as a commercial actor. The listed examples are steps that ensure the integrity and efficiency of an existing or imminent legal proceeding. This may include contacting persons who are already involved in the litigation or who are necessary parties or witnesses. These steps are different from the ordinary business purpose of solicitation. Here, as will be the case for most solicitations, the attorneys acted without court authorization or supervision and cast a wide net, sending letters to over 30,000 car purchasers to let them know the attorneys' names and the attorneys' interest in performing legal services for them. The examples in (b)(4) confirm, and are all consistent with, protecting the professional responsibilities that counsel, or the court, must discharge in the proper conduct of litigation. These are quite distinct from the separate subject, the separate professional conduct, of soliciting clients. The examples suggest that the litigation exception has a limited scope to permit the use of highly restricted personal information when it serves an integral purpose in a particular legal proceeding. In light of the types of conduct permitted by the subsection, the "in connection with" language should not be read to include commercial solicitations by an attorney. Similarly, "investigation in anticipation of litigation" is best understood to allow background research to determine whether there is a supportable theory for a complaint, a theory sufficient to avoid sanctions for filing a frivolous lawsuit, or to locate witnesses for deposition or trial testimony. An interpretation of "investigation" to include commercial solicitation of new clients would expand the language in a way inconsistent with the limited uses given as examples in the statutory text. It must be noted also that the phrase "in anticipation of litigation" is not a standalone phrase. It modifies, and necessarily narrows, the word "investigation." To use the phrase "in anticipation of litigation" without that qualification is to extend the meaning of the statute far beyond its text. 3 An additional reason to hold that (b)(4) does not permit solicitation of clients is because the exception allows use of the most sensitive kind of information, including medical and disability history and Social Security numbers. To permit this highly personal information to be used in solicitation is so substantial an intrusion on privacy it must not be assumed, without language more clear and explicit, that Congress intended to exempt attorneys from DPPA liability in this regard. Subsection (b)(4) is one of only four exceptions in the statute that permit disclosure of "highly restricted personal information," including a person's image, Social Security number, and medical and disability information. See § 2721(a)(2) ; § 2725(4). The other three exceptions that permit access to highly restricted personal information include: use by the government, including law enforcement, see § 2721(b)(1) ; use by an insurer in claim investigation and antifraud activities, see § 2721(b)(6) ; and use by an employer to obtain or verify information as required by law, see § 2721(b)(9). None of these exceptions are written to authorize private individuals to acquire the most restricted personal information in bulk merely to propose a commercial transaction for their own financial benefit. If (b)(4) permitted access to highly restricted personal information for an attorney's own commercial ends without governmental authorization or without consent of the holder of the driver's license, the result would be so significant a departure from these other exceptions that it counsels against adopting this interpretation of the statute. While the (b)(4) exception allows this sensitive information to be used for investigation in anticipation of litigation and in the litigation itself, there is no indication Congress wanted to provide attorneys with a special concession to obtain medical information and Social Security numbers for the purpose of soliciting new business. B Limiting the reach of (b)(4) to foreclose solicitation of clients also respects the statutory design of the DPPA. The use of protected personal information for the purpose of bulk solicitation is addressed explicitly by the text of (b)(12). Congress was aware that personal information from motor vehicle records could be used for solicitation, and it permitted it in circumstances that it defined, with the specific safeguard of consent by the person contacted. So the absence of the term "solicitation" in (b)(4) is telling. Subsection (b)(12) allows solicitation only of those persons who have given express consent to have their names and addresses disclosed for this purpose. If (b)(4) were to be interpreted to allow solicitation without consent, then the structure of the Act, and the purpose of (b)(12), would be compromised to a serious degree. It is necessary and required that an interpretation of a phrase of uncertain reach is not confined to a single sentence when the text of the whole statute gives instruction as to its meaning. United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (" '[I]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy' " (quoting United States v. Heirs of Boisdore, 8 How. 113, 122, 12 L.Ed. 1009 (1849) )). The "in connection with" language of (b)(4) therefore must be construed within the context of the DPPA as a whole, including its other exceptions. This is not to say, as petitioners contend, that this is a straightforward application of the specific (qualified solicitation permission in (b)(12)) controlling the general (the undefined reach of "in connection with" and "investigation in anticipation of litigation" in (b)(4)). As between the two exceptions at issue here, it is not clear that one is always more specific than the other. For while (b)(12) is more specific with respect to solicitation, (b)(4) is more specific with respect to litigation. The DPPA's 14 permissible use exceptions, moreover, are not in all contexts mutually exclusive. The better reading is that each exception addresses different conduct which may, on occasion, overlap. For example, certain uses of personal information by a court may be exempt either under (b)(1) or (b)(4). If conduct falls within the explicit or unambiguous scope of one exception, all other potentially applicable exceptions need not be satisfied. So the question is not which of the two exceptions controls but whether respondents' conduct falls within the litigation exception at all. As to this question, petitioners are correct that the existence of the separate provision governing solicitation provides necessary context for defining the scope of (b)(4). As discussed above, the text of (b)(4) indicates that the exception is best read not to include solicitation as a use "in connection with" litigation. But even if there were any doubt on this point, the statutory design of the DPPA as a whole, including the (b)(12) exception governing solicitations, provides additional instruction for construing this provision. For this reason, it is relevant that " 'Congress has enacted a comprehensive scheme and has deliberately targeted specific problems with specific solutions.' " RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S.----, ----, 132 S.Ct. 2065, 2071, 182 L.Ed.2d 967 (2012). Subsection (b)(12) implements an important objective of the DPPA-to restrict disclosure of personal information contained in motor vehicle records to businesses for the purpose of direct marketing and solicitation. The DPPA was enacted in part to respond to the States' common practice of selling personal information to businesses that used it for marketing and solicitations. See Condon, 528 U.S., at 143, 120 S.Ct. 666 ("Congress found that many States ... sell this personal information to individuals and businesses"); id ., at 148, 120 S.Ct. 666 ("The motor vehicle information which the States have historically sold is used by insurers, manufacturers, direct marketers, and others engaged in interstate commerce to contact drivers with customized solicitations"). Congress chose to protect individual privacy by requiring a state DMV to obtain the license holder's express consent before permitting the disclosure, acquisition, and use of personal information for bulk solicitation. The importance of the consent requirement is highlighted by Congress' decision in 1999 to change the statutory mechanism that allowed individuals protected by the Act to opt out to one requiring them to opt in. See id ., at 144-145, 12 Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_genapel2	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 is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. R. W. CAMFIELD, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 9872. Circuit Court of Appeals, Sixth Circuit. April 9, 1946. E. H. McDermott and Allin H. Pierce, both of Chicago, Ill., for petitioner. Sewall Key, of Washington, D. C., for respondent. Before SIMONS, ALLEN, and MARTIN, Circuit Judges. PER CURIAM. This case was reargued and has also been reconsidered on the record and on the briefs of counsel; and it apearing that the findings of fact of the United States Tax Court are supported by substantial evidence and its conclusions justifiably drawn, and that the position of the petitioning taxpayer is less strong than was that of the petitioner in Commissioner v. Tower, 66 S.Ct. 532, decided February 25, 1946, the decision of the Tax Court is affirmed. Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for 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_2-3-1	I	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "civil rights - civil rights claims by prisoners and those accused of crimes". MOLLENDORF v. SHEPHERD et al. No. 11427. Circuit Court of Appeals, Ninth Circuit. Feb. 11, 1947. J. H. Felton, of Moscow, Idaho, for appellant. Ezra R. Whitla and E. T. Knudson, both of Coeur d’Alene, Idaho, for appellees. Before DENMAN, HEALY, and ORR, Circuit Judges. PER CURIAM. This appeal is from a judgment of the district court on a directed verdict in a suit between citizens of different states. Appellant, plaintiff below, sought damages for alleged abuse of the trial court’s process in a misdemeanor prosecution in the probate court of the State of Idaho. The case was tried to a jury in the court below. The court instructed a verdict for the defendants. The evidence sustains the instruction. The judgment is affirmed. Question: What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"? A. suit for damages for false arrest or false confinement B. cruel and unusual punishment C. due process rights in prison D. denial of other rights of prisoners - 42 USC 1983 suits E. denial or revocation of parole - due process grounds F. other denial or revocation of parole G. other prisoner petitions H. excessive force used in arrest I. other civil rights violations alleged by criminal defendants Answer:
songer_state	37	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". UNITED STATES of America, Plaintiff-Appellee, v. Gary Russell ESTEP, Defendant-Appellant, and Pamela Rollins Estep, Claimant-Appellant, St. Paul Fire & Marine Insurance Company and Farmers & Merchants Bank of Crescent, Oklahoma, Appellees. No. 84-1313. United States Court of Appeals, Tenth Circuit. April 29, 1985. L. Patrice Latimer of L. Patrice Latimer Professional Corp., Oklahoma City, Okl., for defendant-appellant and claimant-appellant. John E. Green, First Asst. U.S. Atty. (William Price, U.S. Atty., with him on brief), Oklahoma City, Okl., for plaintiff-appellee U.S. of America. Tom E. Mullen of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., for appellees St. Paul Fire & Marine Ins. Co. and Farmers & Merchants Bank of Crescent, Okl. Before LOGAN and SETH, Circuit Judges, and SAFFELS, District Judge . Honorable Dale E. Saffels, United States District Judge for the District of Kansas, sitting by designation. SETH, Circuit Judge. This- case revolves around money, $10,-134 in cash, currently resting with the court in the Western District of Oklahoma. Appellant Pamela Jean Rollins turned over the money to an FBI agent, Cleo Fowler, during the course of Mr. Fowler’s investigation of a bank burglary. Agent Fowler believed Pamela Rollins’ friend, Gary Estep, “fished” the money from a night depository located at the Farmers & Merchants Bank in Crescent, Oklahoma. The government used the money, assorted $100, $50 and $1 bills, as evidence in a trial of Mr. Estep for bank burglary. A jury acquitted Mr. Estep. Following the trial appellant Estep and Miss Rollins moved for return of the money. The St. Paul Fire & Marine Insurance Company also requested release of the money to it. The insurance company paid the Farmers & Merchants Bank for the loss and claims the money by right of subrogation. After an evidentiary hearing the district court ordered the money released to the insurance company. The appellants appeal from this court order. They argue that the court improperly took judicial notice of all evidence introduced at the criminal trial. They also claim the court erred by finding the insurance company produced sufficient evidence of a better right to the money. During the criminal trial facts relevant to the insurance company’s claim were presented. On a Friday evening Mr. Clifford Mapes, a store owner in Crescent, Oklahoma, placed a money bag in the night depository of the Bank. He knew he began the business day with $10,400 in $100 and $50 bills. He kept large bills because many of his customers worked in the oil fields and bought items from his stores if he could cash their paychecks. Mr. Mapes testified that the stores took in an unknown number of large bills during the day. At the end of the day Mr. Mapes totaled his receipts of cash, checks and credit card receipts for deposit. The deposit bag contained $15,583.74. He did not separately total the cash, checks and credit card receipts. He estimated the total deposit other than cash to be between $3,000 and $4,000. He returned to the Bank on Monday and discovered that his deposit bag had disappeared. FBI agent Cleo Fowler investigated the missing deposit. He talked with Pamela Rollins and her two sisters, Teresa Rollins and Loretta Adams, at Pamela Rollins’ home. Agent Fowler focused his investigation on Mr. Estep. Loretta Adams and her husband had called the Crescent Police Department before the deposit theft and the Logan County Sheriff’s office after the theft and informed both departments that Gary Estep was involved in the theft. Agent Fowler contacted Pamela Rollins because she held herself out as Mr. Estep’s common-law wife at various times. The three sisters left agent Fowler in Pamela’s house and returned with $10,134 in a brown paper bag. The money included 76 $100 bills, $2,450 in $50 bills and $84 in $1 bills. Teresa Rollins testified that Mr. Estep gave her the money to hold for Pamela. Teresa' had placed it at a friend’s house for safekeeping. Agent Fowler acknowledged the receipt of cash from Pamela in a handwritten document. The insurance company argues that the money handed over to agent Fowler was money stolen from the Bank. The root of Pamela Rollins’ claim to the money is her possession of the cash before it was given to agent Fowler. Mr. Estep states in his motion for return of the money that he was the “original bailee.” A judge presiding at a criminal proceeding has the power to return property held as evidence to its rightful owner. United States v. LaFatch, 565 F.2d 81 (6th Cir.); United States v. Wilson, 540 F.2d 1100 (D.C.Cir.); United States v. Premises Known as 608 Taylor Avenue, 584 F.2d 1297 (3d Cir.). This court agrees with other circuits which find subject matter jurisdiction proper because “[i]t makes for an economy of judicial effort to have the matter disposed of in the criminal proceeding by the judge that tried the case.” United States v. Wilson, 540 F.2d 1100, 1104 (D.C. Cir.). Motions for return of property used as evidence in a criminal trial are normally filed under Rule 41(e) of the Federal Rules of Criminal Procedure. Appellants’ motion invoked this rule. Rule 41(e) generally applies to property seized by the government either legally or illegally. See United States v. Wilson, 540 F.2d 1100, 1103 n. 4, quoting the American Law Institute Model Code of Pre-Arraignment Procedure § SS 280.3 (1975). We treat appellants’ motion as a request for return of property voluntarily given for use as evidence in a criminal trial. Appellants object to the procedure used by the trial judge at the evidentiary hearing. At the start of the hearing the trial judge stated, “I can take judicial notice of all of the evidence admitted into evidence in the trial of this case and do so.” Record, Vol. IV at 18. The introduction of the trial evidence troubles appellants for two reasons. First, neither Miss Rollins nor her attorney were involved in or present at the criminal trial. Miss Rollins was financially unable to order a trial transcript. She complained to the trial court that the admission of trial evidence prejudiced her ability to rebut evidence relied upon by the insurance company. Second, appellants dispute the trial judge’s authority under Rule 201 of the Federal Rules of Evidence to take judicial notice of the entire transcript. Appellants assert that judicial notice of trial evidence under these circumstances is reversible error. We disagree. Judicial notice permits a judge to accept “a matter as proved without requiring the party to offer evidence of it.” IX Wigmore on Evidence § 2565 (Chadbourn rev. 1981). Because a court so acts to remove a party’s evidentiary burden the doctrine demands that a court only notice “matters that are verifiable with certainty.” St. Louis Baptist Temple v. F.D.I.C., 605 F.2d 1169, 1172 (10th Cir.). This court adopted the general rule that “[jjudicial notice is particularly applicable to the court’s own records of prior litigation closely related to the case before it.” Id. We recognized in Mansell v. Carroll, 379 F.2d 682 (10th Cir.), that a judge looks to other court records in order to “pierce the formalities of all of the transactions in question.” Although a court is not bound to notice other legal proceedings “[i]t is often done for a part of the record in the same proceeding or in a prior stage of the same controversy.” IX Wigmore on Evidence § 2579 (Chadbourn rev. 1981) (emphasis in original). The evidentiary hearing in the case before us springs from one controversy — the criminal trial of appellant Gary Estep. Motions for the return of property used as evidence in a criminal trial are procedurally a later stage of the same action. See United States v. LaFatch, 565 F.2d 81 (6th Cir.). It was clearly within the court’s discretionary authority to judicially notice the trial transcript of the earlier portions of the same proceeding. Appellants argue however that the judicial notice taken was an abuse of the court’s discretionary power. Appellants’ attorney and Pamela Rollins were not present at the criminal trial. Appellants argue that their attorney lacked an opportunity to hear the trial testimony and examine the full record. Therefore it is urged that appellants could not adequately rebut any evidence of the insurance company’s entitlement based on the trial transcript. We find no abuse of discretion. The trial court recognized appellants’ dilemma at the start of the evidentiary hearing. The court gave appellants’ present counsel ample opportunity to read the trial transcript. The court offered to reopen the proceedings if necessary: “[I]f you feel ... that a transcript should be provided and a further hearing should be forthcoming, then I will certainly entertain any application to that effect that you wish to file.” Record, Vol. IV at 80. Appellants’ attorney admitted at oral argument that one month passed from the date of the evidentiary hearing to the date the court’s order was filed. The court gave appellants a fair chance to review the transcript. They were provided with enough time to be familiar with it and to object with specificity to the admission of the trial record in whole or in part. We conclude that under these circumstances the court acted without error. The remaining issue before this court is who presented a better claim of right to the money? Mr. Estep and Miss Rollins rest their claim on possession and control of the money before it was turned over to the court. The insurance company’s claim depends on evidence presented at trial connecting Mr. Estep to the burglary. The trial court reasoned that Miss Rollins and Mr. Estep failed to make a prima facie case of entitlement to the funds. In United States v. Wright, 610 F.2d 930 (D.C.Cir.), the court found “[t]he seizure of property from someone is prima facie evidence of that person’s entitlement, particularly when the seized property is money — negotiable instruments difficult to identify and trace.” Id. at 939 (emphasis in original). Bare possession is enough to establish some form of interest. See Northern Pacific Railroad Co. v. Lewis, 162 U.S. 366, 16 S.Ct. 831, 40 L.Ed. 1002. The trial court concluded that Miss Rollins failed to prove a prima facie case because she had only “bare momentary possession” of the money, and apparently because of the inferences it drew from evidence as to how she came into possession if indeed she did. There would seem to be a substantial question as to whether Pamela Rollins was the person who had “possession” of the money. It had been given by Mr. Estep to her sister Teresa who had hidden it in a friend’s house or garage. The three sisters in response to the agent’s interview went to the garage and returned with the money in the paper sack and it was given to the agent. He gave the receipt to Pamela. Pamela testified she did not have possession before going with her sisters. Cases identify two methods of rebutting a possessory claim of ownership to money. An adverse claimant may prove ownership by positive identification of the money. United States v. LaFatch, 565 F.2d 81 (6th Cir.). He may also prove that the claimant in possession holds the money unlawfully. City of Waco v. Bridges, 710 F.2d 220 (5th Cir.); United States v. Wright, 610 F.2d 930, 939 n. 39 (D.C.Cir.). The insurance company failed to prove a right to the money by identification alone. The parties stipulated that neither Mr. Mapes nor the Bank could identify the money as funds taken from them. Agent Fowler reported that the investigating agents performed no fingerprinting procedures on either the money or the Bank depository. However the district court found the money Pamela Rollins gave to agent Fowler “strikingly similar” to the money stolen from the Bank, but there was no evidence of the cash total in the deposit bag nor denominations of the bills. The claim of ownership by the Bank or insurance company cannot be based only on identification of the money, and at best only on an estimate of the total cash deposit compared to the total turned over to the agent. How the sister obtained the cash is significant. The insurance company could also prove a right to the money by showing Mr. Estep and Miss Rollins held the money unlawfully. See City of Waco v. Bridges, 710 F.2d 220 (5th Cir.), and United States v. Wright, 610 F.2d 930, 939 n. 39 (D.C.Cir.). The appellee relies on circumstantial evidence connecting Mr. Estep with the depository theft and tracing money from Mr. Estep to Pamela in order to prove its claim under this theory. Appellant Estep’s acquittal of the criminal charge does not preclude questioning his lawful possession of the money. United States v. LaFatch, 565 F.2d 81, 84 (6th Cir.). The trial court found in substance that neither individual claimant had lawful possession of the money. Mike Adams, Pamela Rollins’ brother-in-law, heard Mr. Estep say the Crescent Bank in El Reno, Oklahoma and a bank in Crescent, Oklahoma would be easy to “fish.” Record, Vol. IV at 77, 78. Pamela Rollins’ sister, Loretta Adams, remembered Gary Estep “brought up” the Crescent, Oklahoma bank in a conversation. Id,., at 99. Mr. Adams said Gary Estep described a technique for “fishing out of a night deposit box.” He also stated he saw fishing lines and hooks belonging to Mr. Estep. He “wasn’t sure” Mr. Estep used the equipment to burglarize the depository. As mentioned, Pamela’s sister Loretta and her husband had called the authorities both before and after the burglary to say that Gary Estep would be involved in the theft. The trial court remarked that the demeanor of Pamela when she testified at the hearing was uncertain, hesitant and lacked conviction. Gary Estep argued that he was the “original bailee” and so entitled to the funds. He made no explanation at the hearing as to how he obtained the money. At the criminal trial the explanation was vague and unsubstantiated. The trial court found following the evidentiary hearing: “The standard of proof as to rightful ownership of the funds is a preponderance of the evidence. United States v. LaFatch, [565 F.2d 81, 83 (6th Cir.) ]____ The preponderance of the evidence before this Court is that the funds in question were stolen from the Bank and that St. Paul’s is entitled to the funds by right of subrogation. While the jury failed to find that the evidence established the defendant’s guilt beyond a reasonable doubt there was more than ample evidence to meet the preponderance of the evidence standard that the funds in question were stolen from the Bank’s night depository by the defendant.” AFFIRMED. 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	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. The AMERICAN MONORAIL COMPANY, Appellant, v. PARKS-CRAMER COMPANY, Appellee. No. 7398. United States Court of Appeals Fourth Circuit. Argued April 10, 1957. Decided May 27, 1957. B. D. Watts, Cleveland, Ohio (Craig-hill, Rendleman & Kennedy, J. B. Craig-hill, Charlotte, N. C., Richey, Watts, Edgerton & McNenny, and F. 0. Richey, Cleveland, Ohio, on brief), for appellant. Joseph W. Grier, Jr., Charlotte, N. C. (Taliaferro, Grier, Parker & Poe, Sydnor Thompson, Charlotte, N. C., Porter, Chit-tick & Russell, and Cedric W. Porter, Boston, Mass., on brief), for appellee. Before SOPER and SOBELOFF, Circuit Judges, and PAUL, District Judge. SOBELOFF, Circuit Judge. In suit here is a patent relating to an improvement in traveling fans or cleaners installed principally in textile factories to blow lint from spinning and weaving machines and from yams and fabrics during the manufacturing process. The plaintiff, Parks-Cramer Company, is the owner of patent No. 2,524,797, issued to it on October 10, 1950, as assignee of the inventor, Grover B. Holtzclaw, its research director. The District Court having upheld the plaintiff’s contentions on validity and infringement (147 F. Supp. 218), the defendant, The American Mono-Rail Company, brings the case here on appeal. A long-standing problem in the textile industry was that in spinning yarn and weaving it into fabric, minute particles of fibre, called lint, would accumulate on the machines and on the material being processed. This interfered with the proper operation of the machines and caused defects in the product. Various means were employed at different times to remove lint. Before 1925, it was done largely by hand; operators of the spinning or weaving machines would pick off the lint or wipe or brush off the surfaces where it had accumulated. Another but still comparatively primitive method was to pipe compressed air into the spinning room. Attached to the pipe was a long, flexible hose with a nozzle on the end, which the spinning machine operator directed as required. Like the original hand method, this consumed much of the operator’s time and was not satisfactory. Later came mechanical cleaners— fans or blowers propelled along tracks suspended from the ceiling or otherwise fixed above the spinning machines. The fan is enclosed in a casing or housing with outlets for the air current. These are now an established feature of cotton mills. A spinning machine consists of a long base resting on the floor and extending the length of the spinning room. Above are three interspaced boards or shelves, running the length of the base. These are known as creel boards, and they support the bobbins of roving or raw fibre, and the spindles. The boards, together with the equipment they hold, are referred to as the creel, when it is desired to distinguish this part of the machine from the lower part, which is often called the underframe. Spinning machines are usually arranged in a series of rows, with aisles between the rows. In the aisles, operators pass frequently in attending the machines. The blower mechanism on the overhead trackway travels the length of the machine slowly and continuously to blow away the lint. But even after the introduction of this overhead apparatus, it remained a problem to get the air in proper volume and intensity between the creel boards, to clean their undersurfaces; and especially the underframe areas were not satisfactorily cleaned by such mechanisms. It still remained necessary to do considerable cleaning by hand. Conduits of various design, attached to the fan housing, were in use from time to time to direct air currents in the removal of lint from the machines. Holtzclaw’s patent application explains that “in usual traveling cleaners, the end of each air conduit extending from the fan casing is provided with two preferably adjustable sleeves or nozzles, one of which directs the blast of air downwardly by the side of the machine therebeneath and the other of which directs the air transversely across the machine.” In describing the problem to which he addressed himself, Holtzclaw says: “Each of the sleeves or nozzles usually terminates above the top of the machine and is ineffective in satisfactorily preventing deposition or accumulation of lint and the like upon rigid parts of the machines not located in the direct paths of the blasts of air, or upon mechanism for the material being treated located closely therebeneath. For example, in the use of the traveling cleaner for cleaning a spinning frame, blasts of air are not fully effective in preventing accumulation of lint and the like upon the lower face of the creel board and upon the spools of roving located closely therebeneath and the deposition or accumulation of bunches of lint upon the roving running from said spools.” His specially declared aim was to provide the well known overhead blower type of cleaner, with a nozzle, sleeve, or cuff that would reach down lower than a man’s height, and thereby more effectively prevent the accumulation of lint on the underside of the creel board and on the spools. He undertook to do so with a “highly flexible” cuff which would yield on contact with an obstruction. Previously, such extensions of the conduit or arm were not allowed to go below the normal height of a person standing in the aisle, for although the fan usually traveled at a speed of only one hundred feet per minute, it was deemed unsafe or otherwise undesirable for a part made of rigid material to extend low enough to strike an operator. The issue is whether, according to applicable legal standards, this is a patentable invention. We conclude that it is not. The bare idea of using a soft sleeve or pipe to convey air, fluids, or other materials is very old and has been applied many times. Repeatedly it has been held that the use of known devices in an analogous field is not invention. In a not too dissimilar context, the Supreme Court said that such adaptations are “but the display of the expected skill of the calling and involve only the exercise of the ordinary faculties of reasoning * * Concrete Appliances Co. v. Gomery, 269 U.S. 177, 46 S.Ct. 42, 70 L.Ed. 222. The patent which was there held invalid was for an apparatus to raise wet concrete at one place in a building under construction and distribute it through spouts to other parts of the building. The Court pointed to the familiar use of similar methods and appliances to distribute water and other mobile substances, such as grain and coal. The arrangement provided by Holtzclaw, which adapts to a particular use the well known flexible pipe, is no more novel than the adaptation effected in the Gomery case. The use of flexible pipes is a familiar commonplace, and not only to engineers. Indeed, any layman who has ever lifted the hood of his automobile will not have failed to notice the use of flexible pipes or tubes connected with rigid conveyors of fluids and gases. Holtzclaw himself testified that he was familiar with the use of a flexible hose attached to a rigid pipe through which fluids or air or sand was passed. As he said, “You can see that at home or anywhere.” Without minimizing the usefulness of Holtzclaw’s device, it is still true that not every idea that may be interesting and useful rises to the level of invention. Ingersoll-Rand Co. v. Black & Decker Mfg. Co., 4 Cir., 192 F.2d 270. Many progressive ideas in business and industry are not patentable. Great A. & P. Tea Co. v. Supermarket Equipment Corp., 1953, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162. The commercial success of the plaintiff’s product has been heavily stressed, but we do not think that it can aid the patent in this case. Commercial success is not a substitute for invention. It may be invoked to aid a patent only if the question of invention is doubtful. In the Great A. & P. case, above cited, the alleged invention consisted of a three-sided frame, with no top or bottom, which, when pushed or pulled across a store counter, moved the articles deposited within it by a customer to the checking clerk and left them there when it was pushed back to repeat the operation. The device worked as claimed, speeded the customer, and saved checking costs for the merchant. Indisputably, it had a quick and widespread commercial success, but it was held unpatentable for lack of invention. Each patent case in which the issue of invention is raised presents a separate problem, and it is difficult to find a sure guide in any prior decision. Nevertheless, we must endeavor as best we may to derive from the adjudicated cases a general principle with respect to the question of invention. In our view, prior decisions illustrative of the general principle indicate the absence of invention here. In Atlantic Works v. Brady, 107 U.S. 192, 2 S.Ct. 225, 27 L.Ed. 438, for example, the patentee devised a complicated piece of machinery, consisting of a specially designed propeller-like means for dredging rivers, and devices for flooding compartments of a boat at will for the purpose of sinking it to the desired draught of water, and with pumps to remove the mud dislodged from the river bottom. In denying patentability, the Court, 107 U.S. at page 199, 2 S.Ct. at page 231, said: “The process of development in manufactures creates a constant demand for new appliances, which the skill of ordinary head-workmen and engineers is generally adequate to devise, and which, indeed, are the natural and proper outgrowth of such development. Each step forward prepares the way for the next, and each is usually taken by spontaneous trials and attempts in a hundred different places. To grant a single party a monopoly of every slight advance made, except where the exercise of invention somewhat above ordinary mechanical or engineering skill is distinctly shown, is unjust in principle and injurious in its consequences. “The design of the patent laws is to reward those who make some .substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts. Such inventors are worthy of all favor. It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention.” , -If the patent for the dredge-boat in that case was invalid, it is difficult to iinagine how the flexible cuff here can qurvive the test of novelty and invention. Not unmindful of the rule which requires Us not to disturb the District Judge’s findings of-fact unless they are clearly erroneous, we have given his findings deferential consideration. Rule 52 (a.) Federal Rules of Civil Procedure, 28 U.S.C.A. We must, however, conclude that he fell into error in attributing decisive weight to commercial success. Moreover, the appropriate standard of invention is a legal, rather than a factual, question. We think that, for the lack of invention, the patent should not have been granted in the Patent Office or sustained in the District Court. Decree reversed with costs. . The claim of the patent with which we particularly concerned is No. 6, as follows: “The combination with a traveling cleaner, for blowing lint, dust, and other foreign particles from longitudinally alined machines having a trackway disposed above and longitudinally centrally of said machines, said cleaner having a motor driven carriage and fan with means operable by said motor for propelling the carriage along the trackway and for rotating said fan, and a fan casing enclosing the fan having an inlet and oppositely positioned outlet conduits, of the construction in which the said conduits present a rigid section terminating above the heads of the machine operators when standing, and in which the said conduits at each side are provided with a cuff of highly flexible material extending therefrom toward the machines to enable currents of air produced by the fan and discharged through the cuffs to be directed against the machines and the cuffs to yield upon impingement with an operator or other obstruction in their path of travel.” 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_weightev	D	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". COLBECK et al. v. UNITED STATES, and three other cases. (Circuit Court of Appeals, Seventh Circuit. December 8, 1925. Rehearing Denied January 13, 1926.) Nos. 3558, 3560, 3562, 3618. 1. Criminal law <@=1149 — Indictment and Information <@=136 — Motion to quash indictment addressed to court’s discretion, and decision not reviewabie on writ of error. Motion to quash indictment is always addressed to discretion of court, and a decision thereon cannot be reviewed on writ of error. 2. Indictment and information <S=I0 — Convict not incompetent witness, on whose testimony indictment cannot be found. A person convicted of an infamous crime is not an incompetent witness, on whose testimony indictment cannot be found. 3. Indictment and information <@=138 — Motion to quash held bad as alleging mere conclusions and no facts. Motion to quash indictment because it “was not found * * * on legal and competent evidence, but was found and based wholly and entirely on illegal, incompetent, and hearsay evidence,” held bad on its face as alleging mere conclusions and no facts. 4. Criminal law <@=301 — Indictment and information <@=139 — Refusal to permit withdrawal of pleas of not guilty and filing of motion to quash indictment held within court’s discretion. Refusal to permit defendants, just before trial, to withdraw pleas of not guilty and file motion, sworn to on information and belief, to quash indictment, returned on illegal, incompetent, and insufficient evidence, held within court’s discretion. 5. Criminal law <@=572 — Essentials of defense • of “alibi” stated. Defense of “alibi” means that defendant was away from scene when crime was committed, and hence could have taken no part in it, and, to be effective, it must appear that defendant was elsewhere during all activities going to make up crime and show his connection with it. [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Alibi.] 6. Criminal law <@=69 — Accessories before the fact are principals. Under Criminal Code, § 332 (Comp. St. § 10508), accessories before the fact are principals. 7. Criminal law <@=59 (5) — Actual presence when crime is committed not essential to guilt of aiding and abetting. Actual presence when crime is committed is not essential to guilt of aiding and abetting its commission. 8. Criminal law <@= 1172(1) — Instructions belittling defense of alibi held not prejudicial. Where evidence of alibi went only to time of actual robbery, ard no effort was made to show that defendants were not at places where, at- times when, evidence tended to show they were aiding and abetting, crime, as charged, by assisting in preparations for it, they were not injured if instructions “belittled and disparaged” such defense. 9. Criminal law <@=i 170t/2(l) — Witnesses <@= 357 — Exclusion of impeaching witnesses’ testimony that they would not believe witness under oath, not error, and not prejudicial. Refusal to permit impeaching witnesses to state whether they would believe witness under oath held not error, and in any event not prejudicial, where he was admitted convict, and admitted his guilt in instant case, other witnesses had testified that his general reputation for truth and veracity was bad, and no contrary testimony was offered by government. 10. Criminal law <@=789(2) — Instruction defining reasonable doubt held not erroneous. Instruction defining reasonable doubt held not erroneous. 11. Criminal law <@= 1059(1) — Exception to instruction held insufficient. Exception to “supplemental instruction upon the subject of reasonable doubt” held insufficient to present any question for review. 12. Post office <§=49 — Evidence held to sustain conviction of robbing persons in charge of mail. Evidence of defendant’s activity in preparation for mail robbery, to be committed when conditions warranted, justified conviction under Criminal Code, §§ 194, 197 (Comp. St. §§ 10364, 10367), of robbing persons in charge of mail, though his presence at time - of robbery, after date first intended, was not shown, and court’s instruction and refusal of defendant’s instruction as to abandonment of enterprise by him were not erroneous. In Error to the District Court of the United States for the Southern Division of the Southern District of Illinois. William P. Colbeck, Oliver Daugherty, Stephen Ryan, David Robinson, Charles Smith, Charles Lanham, Gustav B. Dietmeyer, Prank Haekethal, and Prank Eppelsheimer were convicted of violations of Criminal Code, §§ 194, 197, and they bring error. Affirmed. James E. Carroll and William Baer, both of St. Louis, Mo., and L. S. Harvey, of Kansas City, Kan., for plaintiffs in error Col-beck-and others. Thomas J. Rowe, Sr., of St. Louis, Mo., for plaintiffs in error Lanham and another. Edmund Burke, of Springfield, Ill., for plaintiff in error Haekethal. Edward Pree, of Springfield, Ill., for plaintiff in error Eppelsheimer. Thomas Williamson, of Springfield, Ill., and Horace L. Dyer, of St. Louis, Mo., for the United States. Before ALSCHULEE,, PAGE, and ANDERSON, Circuit Judges. Petition of Hackethal for certiorari denied 46 S. Ct. 474, 70 L. Ed. —. ANDERSON, Circuit Judge. The plaintiffs in error, with several others, were charged in the court below with the violation of sections 194 and 197 of the Criminal Code (Comp. St. §§ 10364, 10367). The indictment is in four counts, and charges all the defendants, in the first count with robbing persons having lawful charge of the mails; in the second, with robbing such persons and in effecting the robbery, putting the life of the persons having custody of the mails in jeopardy by the use of deadly weapons; in the third, with receiving and concealing stolen mail matter, knowing that it was stolen; and, in the fourth, with having possession of stolen mail matter with knowledge that it was stolen. Plaintiff in error Dietmeyer was found guilty on counts 1 and 2, and the other eight plaintiffs in error were found guilty on all counts. Each was sentenced to the penitentiary for 25 years. Some of them assigned errors and petitioned for writs together and some separately. They are all here on one record; their cases have been heard together, and will be so disposed of. The errors chiefly relied on in the briefs and urged upon the argument are: (a) The overruling of the motions to quash the indictment; (b) the instructions upon alibi; (c) the refusal to allow impeaching witnesses to say whether they would believe an impeached witness under oath; and (d) the instruction upon reasonable doubt. (a) The motion to quash. The indictment was returned on September 3, 1924. On October 10, Dietmeyer and Lanham filed their motions to quash. These motions were identical in terms and were based wholly upon the alleged fact that the indictment was found and presented on the evidence of a convict. On October 21, Eppelsheimer filed his motion to quash “because said indictment was not found and presented by the grand jury on legal and competent evidence, but was found and based wholly and entirely on illegal, incompetent, and hearsay evidence.” No other conclusion and no facts whatever were alleged in his motion. The case came on for trial on November 10, 1924, and on that morning, just before the trial began, while the jury was in waiting, Colbeek, Daugherty, Robinson, Smith, and Ryan asked leave to withdraw their pleas of not guilty and to file a motion to quash. This motion to quash was based upon the allegation that the indictment was returned upon illegal and incompetent’ evidence and without legal evidence to connect defendants with the crime charged. These motions were all sworn to upon information and belief. “A motion to quash is always addressed to the discretion of the court, a decision upon it is not error, and cannot be reviewed on a writ of error.” United States v. Hamilton, 109 U. S. 63, 3 S. Ct. 9, 27 L. Ed. 857; United States v. Rosenberg, 7 Wall. 580, 19 L. Ed. 263; Logan v. United States, 144 U. S. 263, 282, 12 S. Ct. 617, 36 L. Ed. 429; Durland v. United States, 161 U. S. 306, 314, 16 S. Ct. 508, 40 L. Ed. 709; Radford v. United States, 129 F. 49; 51, 63 C. C. A. 491. But, aside from this, the motions of Dietmeyer and Lanham were based upon the erroneous notion that a person convicted of an infamous crime is an incompetent witness. The old common-law rule of the incompetency of felons as witnesses is no longer in force in the courts of the United States. Rosen v. United States, 245 U. S. 467, 38 S. Ct. 148, 62 L. Ed. 406; Peace v. United States (C. C. A.) 278 F. 180. Eppelsheimer’s motion stated no facts and alleged mere conclusions and was bad on its face. The request of Colbeek, Daugherty, Robinson, Smith, and Ryan for permission to withdraw their pleas of not guilty and file motion to quash came just as the court was entering upon the trial, and the refusal to permit them to withdraw their pleas of not guilty and file their motion was purely within the discretion of the court. On October 31, the motion of Eppelsheimer came on to be heard. He called the district attorney to the stand, who testified that persons, eyewitnesses, testified before the grand jury to the subject-matter in all its phases, and, in answer to a question, whether there was other evidence before the jury besides the statements of the convict to connect the defendant with the crime the district attorney said “there was positive identification by witnesses.” So it appears there was already evidence in the ease ten days before the day of trial that competent and legal evidence upon all phases of the matter had been presented to the grand jury. This ease illustrates the abuses to which such practices would lead if they were encouraged. • If a defendant, without any knowledge of the facts, upon a motion sworn to upon information and belief, can compel a review of the evidence before the grand jury, which returned the indictment against him, to ascertain whether it was competent or sufficient, then all the evidence received must be brought before the court to be weighed and examined. Such practice should not be tolerated, much less encouraged. In the case most cited in support of such procedure, the reason given for it is that “no person should be subjected to the expense, vexation, and contumely of a trial for a criminal offense, unless the charge has been investigated, and a reasonable foundation laid for an indictment or information.” As stated by the court, in Radford v. United States, supra, after conviction this reason no longer exists, a jury, under the guidance of the judge, having heard the evidence in open court and having come to the conclusion, not only that there was reasonable ground for the charge but also that the charge was true. (b) Alibi. This defense means that the defendant was elsewhere, away from the scene of the crime when it was committed, and therefore could not have taken part in it. To be effective, it must appear that the defendant was elsewhere during all the activities which go to make up the crime and show his connection with it. The defendants wei’e all indicted as principals. There was evidence to show that a part only perpetrated the actual robbery, while the other’s were accessories befoi’e the fact. Under section 332 of the Criminal Code (Comp. St. § 10506), accessories before the fact are principals, and it has been held that an accessory before the fact may be charged as a principal, and the charge will be sustained by proof showing him to be an accessory before the fact. Vane v. United States, 254 F. 32, 165 C. C. A. 442; Di Preta v. United States (C. C. A.) 270 F. 73. It is not necessary that one who aids and abets the commission of a dime be present when the crime is committed. Parisi v. United States (C. C. A.) 279 F. 253, 255. In Jin Fuey Moy v. United States, 254 U. S. 189, 41 S. Ct. 98, 65 L. Ed. 214, the Supreme Court upheld the conviction of a physician upon a charge of “selling” morphine when the evidence showed him to have aided and abetted the sale by issuing a prescription upon which a druggist made the sale. The evidence of the so-called alibi went only to the time of the actual robbery. There was no effort to show that the defendants urging this defense were not at the places at the times when the evidence tended to show them aiding and abetting the crime by assisting in the preparations for it. It did not pretend to cover the activities alleged against them and therefore it was no alibi at all. The complaint is . that the court, in its instructions upon this point, “belittled and disparaged” this defense. As the showing made did not rise to the dignity of an alibi, it is difficult to see how the defendants, were injured by the court’s treatment of it. (c) Refusal to allow the question to be put to the impeaching witnesses whether they would believe Renard under oath. The impeaching witnesses were asked if they knew the general reputation of Renard in the community in which he resided for truth and veracity. Upon answering “Yes,” they were asked-what it was, and each said it was bad. They were then asked, “Based on what you have said as to'his general reputation for truth and veracity, would you believe him on oath?” The government’s objection to this question was sustained, and the ruling excepted to. There is conflict in the decisions upon this question. The Supreme Court in Teese et al. v. Huntingdon et al., 23 How. 2, 16 L. Ed. 479, said: “According to the views of Mir. Green-leaf, the inquiry in all cases should be restricted to the general reputation of the witness for truth and veracity; and he also expresses the opinion that the weight of authority in the American courts is against allowing the question to be put to the impeaching witness whether he would believe the other on his oath. In the last edition of his work on the law of evidence, he refers to several decided eases, which appear to support these positions; and it must be admitted that some of these decisions, as well as others that have since been made to the same effect, are enforced by reasons drawn from the analogies of the law, to which it would be difficult to give any satisfactory answer,” citing numerous cases. We think the weight of authority sustains the ruling below. But suppose the ruling should have been the other way, was the error a substantial one? Renard was an admitted convict. He was brought from prison to testify. He admitted his guilt in the instant case and testified to his participation in it. Witnesses had testified that his general reputation for truth and veracity was bad and no testimony to the contrary was offered by the government. It is not perceived how his standing as a witness could .be further impaired by allowing witnesses to express their opinion that they did not regard him worthy of belief. No substantial injury was done plaintiffs in error by this xruling. (d) Reasonable doubt. At the close of the charge to the jury, the court asked defendant’s counsel if they had any suggestions to make. The record shows this to have occurred. “Mr. Baer: The defendants and each of them desire to except to the charge of the court' upon the subject of reasonable doubt, as not being a proper statement of the law upon the subject of reasonable doubt. “The Court: In what respect? “Mr, Baer: Well, I think it leaves to the jury the question of this doubt based upon a reason, and does not advise the jury specifically that a reasonable doubt, if it is created, is of itself sufficient, in the absence of all other evidence, to warrant an acquittal of the defendants.” The court had already in its instructions, after defining a reasonable doubt, specifically told the jury that if they had such a doubt as to the guilt of any or either of the defendants in the ease, it was their duty to give such defendants the benefit of such doubt. After the jury had been out for some time, the court called them back and asked whether any question of law was troubling-them, whéreupon this occurred: “The Juror: Well, we have had some discussion in regard to what would be considered a reasonable doubt. “The Court: A reasonable doubt, gentlemen, is just such a doubt as the name implies — a doubt based upon reason, and that reason being based upon the evidence or lack of evidence in the case. A reasonable doubt is not the possibility of a doubt, nor the probability of a doubt, nor a speculative doubt, but a substantial doubt, based upon the evidence or lack of evidence in the case. If, upon a consideration of all of the evidence in the ease, you have'a conviction amounting to a moral certainty that such and such is the case, then the proof is beyond a reasonable doubt. Is there anything else? “Mr. Baer: The defendants and each of them except to the supplemental instruction given by the court upon the subject of alibi and upon the subject of reasonable doubt.” Under the rules of practice in this situation, the exception to what is called the supplemental instruction on reasonable doubt presents no question at all. The exception is to the “supplemental instruction upon the subject of reasonable doubt.” It does not point out wherein the instruction is wrong and thus give the court an opportunity to correct it. But we fail to see. any error in the instruction complained of. It certainly is sound as far as it goes, and is not subject to the meticulous criticisms made of it in the briefs. The court directed the jury to find Dietmeyer not guilty on counts 3 and 4, apparently because there was no direct evidence that he had shared in the loot. His counsel insist that because of this, and the fact that he was not shown to be present at the time of the robbery, the case failed as to him. This ignores the fact that there was evidence before the jury which, if believed, was sufficient to show him quite active in the preparations for the robbery. As shown above, his presence at the robbery was not essential. Further complaint is made on behalf of Dietmeyer of the refusal to give his instruction as to his abandonment of the enterprise and of the court’s instruction on this point. The request and the objections to the instructions given are based upon an erroneous conception of the crime charged and of the evidence adduced to establish it. Counsel argue that the joint enterprise in which he is shown to have been engaged had for its object the robbery of the mails on April 14 only, and did not contemplate the robbery which was committed on May 26. The evidence showed a design and plan to rob the mail coming into Staunton when the circumstances warranted. It was first designed to rob it on April 14, but “something went wrong” as one witness said, and the crime was postponed and actually committed May 26. Dietmeyer was shown to have been active in the preparations for robbing the mail upon its arrival at Staunton whenever it arrived and the surroundings were propitious. This broad and general plan included the robbery which was effected. He therefore aided and abetted in the commission of that robbery. There is no substantial error in the record, and the judgment is affirmed. 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:
songer_appel2_7_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 appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). Russell MEANS et al., Appellants., v. Dick WILSON et al., Appellees. No. 74-1841. United States Court of Appeals, Eighth Circuit. Submitted May 12, 1975. Decided Aug. 5, 1975. Steven J. Trecker, Sausalito, Cal., for appellants. Dennis H. Hill, Rapid City, for appellee. Before LAY, ROSS and WEBSTER, Circuit Judges. ROSS, Circuit Judge. This is an appeal from the dismissal of a complaint which grew out of an Indian election dispute in the District of South Dakota. The facts are set out fully in the district court opinion. Means v. Wilson, 383 F.Supp. 378 (D.S.D.1974). Appellants, who were plaintiffs below, are Russell Means, an unsuccessful candidate for president of the Oglala Sioux Tribal Council in the February, 1974 election, and a group of his political supporters. They are all enrolled members of the Oglala Sioux Tribe residing on the Pine Ridge Indian Reservation in South Dakota. The appellees are Richard “Dick” Wilson, who was elected president of the Council in the aforementioned election, a number of tribe members who supported him, the Tribal Council and certain members thereof and the Tribal Election Board. Some of the appellants are sued individually and in their capacities as officials of the Tribe. They are also enrolled Oglala Sioux, residents of Pine Ridge Reservation. The action was brought under 28 U.S.C. § 1343, the Indian Civil Rights Act (25 U.S.C. §§ 1301-1303) and 42 U.S.C. §§ 1985(3), 1986 and 1988. The district court found that there was no jurisdiction given by either 42 U.S.C. § 1985 or 25 U.S.C. § 1302, but rested its decision on the section 1302 claim on the determination that no claim was alleged under that section. We agree with the court below except in certain respects mentioned herein, and affirm in part and reverse in part. I. Exhaustion of Tribal Remedies. Although the trial court did not rely on its conclusion that the Means supporters failed to exhaust tribal remedies in dismissing their complaint, it found that there was such a failure and that this also would have barred plaintiffs from maintaining an action under 25 U.S.C. § 1302 for lack of jurisdiction. We express no view of whether exhaustion of tribal remedies is a prerequisite to federal relief under the Indian Civil Rights Act or 42 U.S.C. § 1985(3) in this particular case, because we find that the plaintiffs made every reasonable attempt to exhaust their tribal remedies. Plaintiffs originally filed suit on February 11, 1974. On February 19, 1974, plaintiffs moved for a continuance in order to allow them to pursue a formal election contest filed on February 15 in accordance with Tribal Ordinance 85G. Section 12 of the ordinance provides that election contests shall be filed with the election board within three days of certification of the election. The election was certified on February 13, 1974, and one of the plaintiffs, on behalf of Means and all other tribe members, filed a formal contest with a member of the election board at 8:00 p. m. on February 15. The election board is required to act on the contest and make recommendations thereon to the Tribal Council within five days after the contest is filed. Apparently the board denied relief oh February 20, 1974. Within five days after the election board has made its determination, Ordinance 85G requires the Tribal Council to render a decision on the contest. The ordinance provides that: “The decision of the Council on a contest shall 'be final.” However, the Council did not issue a decision on the plaintiffs’ election contest within five days and has still not .ruled on the contest. Plaintiffs waited for a final decision on the contest until March 29, 1974, before filing their amended complaint, over a month after the Tribal Council, headed by defendant Wilson, had failed to meet the five day deadline imposed by Tribal Ordinance 85G. We find that plaintiffs have done all they could to exhaust tribal remedies in this case, but their tribal right to appeal the election has been frustrated by inaction of the Tribal Council. “The plaintiffs sought relief [through tribal channels] and were denied an effective timely remedy.” Brown v. United States, 486 F.2d 658, 661 (8th Cir. 1973). II. 42 U.S.C. § 1985(3) In considering the Means faction’s section 1985(3) claim, the district-court first held that that section did not affect the Oglala Sioux Tribe’s historic immunity from suit. With this we agree. Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 531-532 (8th Cir. 1967); Native American Church v. Navajo Tribal Council, 272 F.2d 131, 134-135 (10th Cir. 1959). But the district court erred in concluding that this same reasoning applied to suits against individual Indians. Tribal immunity is based on the sovereignty of the tribe, Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483 (1832), and does not protect a tribal subject from suit. Seneca Constitutional Rights Organization v. George, 348 F.Supp. 48, 49 (W.D.N.Y.1972). Therefore we must look further than the tribal immunity doctrine to determine whether there is jurisdiction over individual defendants under 42 U.S.C. § 1985(3) and 28 U.S.C. § 1343(4). ■ In Griffin v. Breckenridge, 403 U.S. 88, 101-102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Court held that 42 U.S.C. § 1985(3) provided a cause of action against private conspiracies, i. e. those not involving state action, to deprive citizens of equal protection of the law or of equal privileges and immunities. In each section 1985 case it must be determined whether there is a constitutional source of congressional power to reach the private conspiracy alleged in the complaint. Griffin v. Breckenridge, supra, 403 U.S. at 104, 91 S.Ct. 1790; Action v. Gannon, 450 F.2d 1227, 1233 (8th Cir. 1971). In Griffin the Supreme Court identified two such sources of congressional power; the thirteenth amendment and the right of interstate travel. Supra, 403 U.S. at 105-106, 91 S.Ct. 1790. This latter right was characterized as one of the rights of national citizenship which Congress has the power to protect by appropriate legislation. Supra, 403 U.S. at 106, 91 S.Ct. 1790. In this context several cases were cited as exemplary of other “rights of national citizenship;” among them were United States v. Classic, 313 U.S. 299, 314-315, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941) and Ex Parte Yarbrough, 110 U.S. 651, 658-662, 4 S.Ct. 152, 28 L.Ed. 274 (1884). ..Classic and Yarbrough were both prosecutions under criminal statutes analogous to 42 U.S.C. § 1985(3), based on alleged interference with voting rights in national elections. It is thus apparent that the right to vote in federal elections is a right of national citizenship protected from conspiratorial interference by 42 U.S.C. § 1985(3). Griffin v. Breckenridge, supra, 403 U.S. at 106, 91 S.Ct. 1790. The Sixth Circuit has held, and we agree, that the right to cast a ballot in a state election is also protected from interference from private conspiracies by the federal Constitution. Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973); see also Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Smith v. Cherry, 489 F.2d 1098, 1100-1101 (7th Cir. 1973). The right to vote is fundamental to representative government. As a right of national citizenship, it is a source of constitutional power, and Congress has the power to guarantee that right by statute. Griffin v. Breckenridge, supra, 403 U.S. at 106, 91 S.Ct. 1790. We have previously held that Congress has guaranteed the right to vote in tribal elections against interference from Indian tribes by enactment of the Indian Civil Rights Act, 25 U.S.C. § 1301 et seq. Brown v. United States, 486 F.2d 658, 661 (8th Cir. 1973); Daly v. United States, 483 F.2d 700, 704-705 (8th Cir. 1973); White Eagle v. One Feather, 478 F.2d 1311, 1314 (8th Cir. 1973). These cases established that where Indian tribes have adopted Anglo-Saxon democratic processes for selection of tribal representatives, equal protection concepts applicable to the tribes by virtue of the Indian Civil Rights Act required adherence to the one man one vote principle as a necessary concomitant of the election process. White Eagle v. One Feather, supra, 478 F.2d at 1314. Today we hold that 42 U.S.C. § 1985(3) protects the right to vote in tribal elections against interference from private conspiracies as well. Under the Indian Commerce Clause Congress has plenary authority over Indians. Worcester v. Georgia, supra, 31 U.S. (6 Pet.) at 559. Although the clause speaks of “Indian Tribes” the authority to legislate concerning individual Indians is necessarily included within the sweeping grant of congressional power. United States Department of the Interior, Federal Indian Law 22, n. 6 (1958) (hereinafter, Federal Indian Law). In 1924, Congress granted citizenship to all American Indians who had not previously enjoyed that status, including many Oglala Sioux. Act of June 2, 1924, ch. 233, 43 Stat. 253; Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89, 97 (8th Cir. 1956). At that time certainly, if not before, Indians became endowed with the fundamental rights of national citizenship, including the right to vote. Federal Indian Law, 530. The Pine Ridge Reservation, the tribal constitution which sets forth election procedures and the organization of the Oglala Sioux Tribe all exist pursuant to federal law, Act of Mar. 2, 1889; ch. 405, § 1, 25 Stat. 888; 25 U.S.C. §§ 476, 477; see Iron Crow v. Ogallala Sioux Tribe, 129 F.Supp. 15, 18-20 (D.S.D.1955), aff’d, 231 F.2d 89 (8th Cir. 1956). The Oglala Sioux have established their system of representative government under the authority of these statutes, which in turn were enacted by Congress under the authority contained in the Indian Commerce Clause. In this way Congress has encouraged the development of democratic processes for the self-government of the Oglala Sioux, and extended to them the benefits of national citizenship. Since the right to vote in a system of representative government is one of the essential trappings of citizenship protected by the Constitution, we hold that Congress has necessarily granted it to the plaintiffs, and in a proper case, interference with the right to vote in a tribal election may be vindicated under 42 U.S.C. § 1985(3) as a deprivation of equal protection of the laws or equal privileges and immunities under the law. The plaintiffs in this case have thus alleged facts to bring this case and some of the defendants within the jurisdiction of the federal courts. The complaint states that defendants conspired and did overt acts in furtherance of a conspiracy to deprive the plaintiffs of their right to vote because they were supporters of plaintiff Means and members of the American Indian Movement. In Griffin the court emphasized that in order to show a deprivation of equal protection or equal privileges and immunities which may be redressed under 42 U.S.C. § 1985(3), it must be shown that the conspirators were motivated by an invidiously discriminatory animus toward a racial group or perhaps another type of class. Supra, 403 U.S. at 102, 91 S.Ct. 1790. In interpreting this class-based discrimination test the Fifth Circuit has said: There need not necessarily be an organizational structure of adherents, but there must exist an identifiable body with which the particular plaintiff associated himself by some affirmative act. It need not be an oath of fealty; it need not be an initiation rite; but at least it must have an intellectual nexus which has somehow been communicated to, among and by the members of the group. Westberry v. Gilman Paper Co., 507 F.2d 206, 215 (5th Cir. 1975). This opinion was later withdrawn by the Fifth Circuit sitting en banc and the cause remanded with directions to dismiss it as moot, “so that it will spawn no legal precedents.” Supra, 507 F.2d at 216. However, in our' opinion, the reasoning above quoted was and is valid in the light of Griffin. The group of plaintiffs in this case, by their affirmative acts of supporting plaintiff Means and the American Indian Movement and attempting to oust Wilson as their Council President, were a class against whom, according to the allegations of their complaint, the defendants discriminated because of their class membership This brings their complaint within the ambit of 42 U.S.C. § 1985(3). Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973). We must now examine the complaint more closely to determine whether it states a claim under the statute as to any of the named defendants. Under Fed.R.Civ.P. 8, technical niceties of pleading are not required. Rather, a short and plain summary of the facts sufficient to give fair notice of the claim asserted is sufficient. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Many of the plaintiffs’ allegations fail to meet this test. At a minimum, the complaint must state some way in which the named defendants participated in the alleged conspiracy to take away the election rights of the plaintiffs. Smallwood v. United States, 358 F.Supp. 398, 408 (E.D.Mo.), aff’d mem., 486 F.2d 1407 (8th Cir. 1973); see Ellingburg v. King, 490 F.2d 1270, 1271 (8th Cir. 1974). In addition a complaint under 42 U.S.C. § 1985(3) must allege facts to show that intentional or invidious discrimination was the object of the conspiracy. Griffin v. Breckenridge, supra, 403 U.S. at 102-103, 91 S.Ct. 1790; Snowden v. Hughes, 321 U.S. 1, 7, 10, 64 S.Ct. 397, 88 L.Ed. 497 (1944). Most of the allegations against defendants as individuals either fail to identify any of the named defendants as a conspirator or fail to allege the required animus. The only possible adequate allegation of a conspiracy under 42 U.S.C. § 1985(3) which appears in the complaint is that defendant Wilson conspired with private individuals to insure his reelection by illegal means, and in furtherance of this conspiracy a private, unauthorized police force known as the “Goon Squad”, was maintained by Wilson which harassed and threatened those who opposed the Wilson administration. Defendant Glenn Three Stars is identified as leader of the force and another defendant, Bennie “Tote” Richards, is alleged to be a member. As to these two defendants and defendant Richard “Dick” Wilson we hold that the complaint very inartfully states a claim under 42 U.S.C. § 1985(3). III. The Indian Civil Rights Act. We agree with the district court’s conclusion that 25 U.S.C. § 1302 provides rights only against the tribe and governmental subdivisions thereof, and not against tribe members acting in their individual capacities. Spotted Eagle v. Blackfeet Tribe, 301 F.Supp. 85, 89-90 (D.Mont.1969). The statute provides that: “No Indian tribe in exercising powers of self-government shall .” engage in the prohibited conduct. 25 U.S.C. § 1302. “Indian tribe” and “powers of self-government” are defined in 25 U.S.C. § 1301(1) and (2). When sections 1301 and 1302 are read together it is plain that only actions of the tribe and tribal bodies are constrained. To some extent then, the historic immunity from suit has been abrogated by the Indian Civil Rights Act. Daly v. United States, 483 F.2d 700, 705 (8th Cir. 1973); Luxon v. Rosebud Sioux Tribe, 455 F.2d 698, 700 (8th Cir. 1972). Therefore, even though tribal immunity prevents suit against the tribe or its governmental arms under 42 U.S.C. § 1985(3), the Means supporters can still sue these bodies under 25 U.S.C. § 1302. Subsection 8 of 25 U.S.C. § 1302 is modeled closely after the equal protection clause of the federal Constitution. Federal courts have refused to decide election contests based on equal protection arguments in the absence of allegations of intentional deprivation of the right to vote. See Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Smith v. Cherry, 489 F.2d 1098, 1102-1103 (7th Cir. 1974); Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973). Thus, in Pettengill v. Putnam County R-1 School District, 472 F.2d 121, 122 (8th Cir. 1973) we refused to decide a school bond election contest based on a contention that administrative errors had diluted plaintiffs’ votes. The district court correctly concluded that the standard for setting aside a tribal election must be at least as restrictive as that applied in non-Indian local election cases under the Constitution. We agree that there are no allegations of fact in the complaint to show that the Oglala Sioux Tribe or the Tribal Council has intentionally deprived Means supporters of equal protection of the law, nor that they have attempted to do so. We note, however, that a claim of intentional interference with plaintiffs’ voting rights is stated against the Tribal Election Board. Numerous election errors and irregularities allegedly affected the result of the election. In addition, the complaint states: “The three-person Election Board failed to provide proper instructions to election judges and clerks in a deliberate attempt to confuse the situation to insure the success of the illegal practices.” This is alleged to be part of a conspiracy between Wilson and “other tribal officers” to insure Wilson’s election. Although it seems to us that such an allegation would be difficult to prove, it would be sufficient to state a claim for denial of equal protection if this were alleged against a local government in a non-Indian case. Additional considerations of the desirability of preservation of unique tribal cultures and continued vitality of tribal governments underlie the Indian Civil Rights Act, however, and these considerations counsel great caution in applying traditional constitutional principles to Indian tribal governments. O’Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140, 1144 (8th Cir. 1973); Note, The Indian Bill of Rights and the Constitutional Status of Tribal Governments, 82 Harv.L.Rev. 1343, 1368 (1969). In this case, the alleged interference with plaintiffs’ voting rights is not founded in tribal custom or governmental purpose which would justify modification of traditional equal protection concepts. Rather, the complaint alleges an intentional interference by the Election Board with tribal members’ rights to participate in their government, which are granted them by the Oglala Sioux Constitution. We believe this alleged violation falls witoin the protection of 25 U.S.C. § 1302(8)/Wd the Election Board is an “Indian tribe” exercising powers of self-government as defined by 25 U.S.C. § 1301(1) and (2). Therefore it was error to dismiss the complaint against the defendant, the Oglala Sioux Tribal Election Board. The order of the district court is reversed with respect to dismissal of the complaint against Richard “Dick” Wilson, Glenn Three Stars, Bennie “Tote” Richards, and the Oglala Sioux Election Board; dismissal of the complaint against the other defendants is affirmed. The case is remanded to the district court for further proceedings consistent with this opinion. . The original complaint named as additional defendants the U.S. Department of the Interi- or, the Bureau of Indian Affairs, the Commissioner of Indian Affairs and the Department of Justice. These defendants were deleted from the amended complaint, although plaintiffs allege participation by federal officers and agencies in the conspiracy which is the basis of their action. . 28 U.S.C. § 1343 provides: The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: (1) To recover damages for injury to Bis person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42; (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote. Section 1343(4) gives the courts jurisdiction to redress violations of the substantive rights set forth in the Indian Bill of Rights, 25 U.S.C. § 1301 et seq. Luxon v. Rosebud Sioux Tribe, 455 F.2d 698, 700 (1972). Since a violation of substantive law is a condition precedent to assumption of jurisdiction under section 1343(1) or (4), for the sake of brevity we will refer to the issue of whether there is jurisdiction under 42 U.S.C. § 1985(3) or 25 U.S.C. § 1302, even though 28 U.S.C. § 1343 is the statute which actually gives the court jurisdiction to redress violations of the substantive statutes named. . 42 U.S.C. § 1985(3) Depriving persons of rights or privileges (3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators. . “The Congress shall have Power ... To regulate Commerce . with the Indian Tribes . . .” U.S.Const. art. I, § 8. This case differs from those in which there was not a clearly defined class, e. g., Ward v. St. Anthony Hosp., 476 F.2d 671, 676 (10th Cir. 1973); Bricker v. Crane, 468 F.2d 1228, 1233 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973), or those in which there was a class, but the alleged conspiratorial discrimination was not motivated by plaintiffs’ class membership. E. g., Arnold v. Tiffany, 487 F.2d 216, 218 (9th Cir. 1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1578, 39 L.Ed.2d 881 (1974); Hughes v. Ranger Fuel Corp., 467 F.2d 6, 10 (4th Cir. 1972). 42 U.S.C. § 1985(3) does not reach every injury suffered by an individual; that would be tantamount to a general federal tort law, which Congress does not have the power to enact. The constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law can be avoided . by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. . . The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1798 (1971) (footnotes omitted). In this case, where the complaint alleges a conspiracy motivated by intent to deprive plaintiffs qua Means supporters of their right to vote, the “constitutional shoals” of interpreting the statute as a general federal tort law have been circumnavigated. . The specific provision with which we are concerned here is 25 U.S.C. § 1302(8): 25 U.S.C. § 1302. Constitutional Rights No Indian tribe in exercising powers of self-government shall— (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law . . 25 U.S.C. § 1301. Definitions For purpose of this subchapter, the term— (1) “Indian tribe” means any tribe, band, or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government; (2) “powers of self-government” means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_numresp	3	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. 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. GUILD TRUST, Melba L. Guild, Delmar D. Dean and Mary Melba Guild Dean, husband and wife, Earl Guild and Barbara Jo Guild, husband and wife, Ferd Christiansen and Eva Lois Christiansen, husband and wife, Plaintiffs-Appellants, v. UNION PACIFIC LAND RESOURCES CORPORATION, a corporation, Champlin Petroleum Company, a corporation, and Amoco Production Company, a corporation, Defendants-Appellees. No. 79-1568. United States Court of Appeals, Tenth Circuit. June 16, 1982. Charles D. Phillips, Evanston, Wyo., for plaintiffs-appellants. Daniel M. Gribbon of Covington & Burling, Washington, D.C. (Russell H. Carpenter, Jr. of Covington & Burling, Washington, D.C., Houston G. Williams of Williams, Porter, Day & Neville, P. C., Casper, Wyo., Harry O. Hickman and Frank H. Houck, Denver, Colo., Ewing Werlein, Jr. and Ben H. Rice, III of Vinson & Elkins, Houston, Tex., of counsel, for Amoco Production Co., D. Thomas Kidd, Casper, Wyo., and Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo., of counsel, with him on the brief), for defendants-appellees. Before SETH, Chief Judge, and DOYLE and McKAY, Circuit Judges. SETH, Chief Judge. The Guild Trust brought this action against the Union Pacific Land Resources Corporation and others seeking to quiet title to minerals in the subject lands. The trial court, 475 F.Supp. 726, however, by summary judgment quieted title in the minerals including oil and gas in the defendants. The trial court held that the six deeds here concerned reserved title to all the minerals in the grantor. The plaintiffs have taken this appeal asserting basically that summary judgment was not a suitable method to resolve the issues. Six of the seven deeds here concerned reserve to the grantor and to its successors and assigns “all coal and other minerals within or underlying said lands.” This was the same reservation contained in the deeds considered in the case of Amoco Production Co. v. Guild Trust, 636 F.2d 261 (10th Cir. 1980). In that litigation between these same parties the trial court held, 461 F.Supp. 279 (D.Wyo.1978), and we held, that the reservation included oil and gas. We said: “If the Wyoming Supreme Court were presented with the precise issue presented in this case, we believe it would hold that the deed term ‘other minerals’ includes oil and gas as a matter of law.” The Amoco decision is controlling on that issue as presented in this case. Furthermore, it was an issue proper for resolution by summary judgment. The appellant Guild Trust seeks to present in this court factual material not presented to the trial court including sales contracts, mortgages, and briefs in other cases, all of which cannot be considered. One of the seven deeds, which is referred to as the Section 5 deed executed in 1895, covers Section 5, Township 14 North, Range 117 West, of the Sixth Principal Meridian, in Wyoming. This deed contains a reservation different from those included in the other six. The reservation in this Section 5 deed reads: “Reserving, however, to the said Union Pacific Railway Company, its successors, grantees, or assigns, the exclusive right to prospect for coal and other minerals within the underlying said lands, and to mine for and remove the same, if found, and for this purpose it shall have right of way over and across said lands and space necessary for the conduct of said business thereon, without charge or liability for damage therefor.” The trial court held that under Wyoming law this reserved the entire estate in the minerals to the grantor and to its successors, grantees, and assigns. This holding is consistent with the holding of the vast majority of decisions which have considered the matter. Apparently the only exception is the opinion of the Colorado Supreme Court in Radke v. Union Pacific Railroad Co., 138 Colo. 189, 334 P.2d 1077 (1959), where the court considered a similar reservation, but one which did not go to the successors, grantees, or assigns. The Section 5 reservation has no time restriction, is an exclusive right, without limitations or conditions. The' Wyoming court has not considered the particular issue. Its opinions contain no contrary indications, and under these circumstances we will follow the view of the trial court as to what doctrine would be adopted by the Wyoming Supreme Court. The plaintiffs-appellants filed this suit in March of 1978 while the Amoco action wherein they were defendants was pending, and had been pending for about five months. They apparently were prepared to have the two actions proceed at the same time. In any event, they chose to do so. The plaintiffs had taken no action in this case for about a year when the defendants filed a motion for summary judgment on February 20, 1979. The trial court had decided the Amoco ease about three months before — in November of 1978. The trial court set the motion for summary judgment soon after it was filed for a hearing to be held on March 16, 1979, the date the case had been set for trial. The plaintiffs moved to stay all proceedings in the case until the appeal in Amoco had been decided. The defendants agreed, but the court on March 12 denied the stay. The plaintiffs’ second motion for stay was also denied, and the motion for summary judgment was heard on March 16, the trial date which had been set some three-and-a-half months before. The trial court announced that it would grant summary judgment for the defendants. However, after the hearing the court allowed plaintiffs a period of thirty days in which to make additional filings relative to the motion. Plaintiffs did not so act, and instead they sought again to stay all proceedings, to amend their complaint, to urge that the court should not consider the case further, and for discovery. Under these circumstances the court acted within its discretion in denial of this post-judgment relief. Again, it must be observed that the trial court had some three-and-a-half months before the March hearing date set that date for the trial date. We find nothing in the record wherein the plaintiffs sought additional time to prepare for the hearing on the motion for summary judgment. Instead, before the hearing date the motions were for a stay of the entire proceedings and were not directed to the matter at hand. The plaintiffs did not seek relief under Fed. R.Civ.P. 56(f) which provides that a party may file an affidavit stating why he cannot present facts in response to the motion, and further provides that the court may grant a continuance to.permit the filing of affidavits or to permit discovery. This relief requires that an affidavit be filed stating reasons. This was not done. We find no post-judgment motions seeking leave to file affidavits or other material to respond to the motion for summary judgment, nor for additional time to do so. The motions were directed in part to discovery matters, which may or may not have been pertinent to the summary judgment hearing, but they were not so presented. Thus plaintiffs in no way complied with Fed.R.Civ.P. 56 to meet the motion for summary judgment. They filed no affidavits or other material, nor did they in any way demonstrate for the record that an issue of material fact remained. The issues resolved by the summary judgment — that the reservations included oil and gas and that the Section 5 reservation was of the mineral estate — were questions of law. We have held in a series of cases including Bankers Trust Co. v. Transamerica Title Ins. Co., 594 F.2d 231 (10th Cir. 1979), and Downes v. Beach, 587 F.2d 469 (10th Cir. 1978), that a party against whom a motion for summary judgment is directed cannot rely only upon his pleadings but must make a response. The rule clearly requires a direct response. Thus if the motion is supported as the rule directs and this material constitutes a prima facie showing that summary judgment is warranted, then the opposing party, the plaintiffs here, “must demonstrate, by specific facts, that there is a genuine issue for trial.” Bankers Trust Co. v. Transamerica Title Ins. Co., 594 F.2d 231 (10th Cir. 1979). This is the language of the rule. It requires the plaintiffs to respond “by affidavits or as otherwise provided in this rule ... [to] set forth specific facts.” As mentioned above, this case had then been pending over a year. Plaintiffs had started it with the Amoco case already underway where the very same issues were being considered, except only the Section 5 reservation. The decision of the trial court in Amoco was known about three months before the summary judgment motion was filed in this case and this was some four months before the trial date. The plaintiffs urge in this court that they did not have time to meet the motion for summary judgment, and they were busy with the Amoco appeal process. However, we find no abuse of discretion on the part of the trial court in proceeding with the summary judgment when it did. As mentioned, the plaintiffs filed nothing whatever in response to the motion for summary judgment, and there was nothing but their pleadings. The defendants had submitted as part of their motion affidavits showing their chain of title to the reserved mineral estate and the conveyances were part of the record. Defendants made an adequate showing that the only issues remaining were issues of law, and that the case was suitable for resolution by summary judgment. The trial court determined that there were no unresolved fact questions, and that the legal issues were adequately developed and could and should be decided on the record before it. We agree. In their estoppel argument the plaintiffs place great reliance on the Colorado case of Radke v. Union Pacific Railroad Co., 138 Colo. 189, 334 P.2d 1077 (1959), which concerned a reservation similar to the Section 5 reservation with which we are here concerned. They urge that collateral estoppel be applied against the defendants on the basis of Radie. We must hold that the doctrine cannot be applied because the reservations are different in a basic and important respect. Further, the Radke case was decided under the real property and conveyancing law of Colorado while the reservation here concerned is to be decided under the property law of Wyoming. See 32 A.L.R.3d 1330. In the Radke case the reservation did not run to the “successors, grantees, or assigns” of the grantor. This provision is a clear indication that the reservation here concerned would survive assignments and other transfers. Thus in our view the Radke court, which did not have before it the provision as to successors and assigns, decided quite a different case where it held that the reservation there concerned was a revocable license which would also terminate when the surface was transferred. This Section 5 reservation to successors and assigns when coupled with its exclusive nature and with the absence of conditions or limitations lead to the conclusion reached by the trial court. Real property doctrines are matters for the determination by the state where the land is located. The Supreme Court in Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, stated that “the state where the land is located is ‘sole mistress’ of its rules of real property.” See also Hood v. McGehee, 237 U.S. 611, 35 S.Ct. 718, 59 L.Ed. 1144, and Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65. The Wyoming courts do not apply the doctrine of collateral estoppel unless identical issues are present. Roush v. Roush, 589 P.2d 841 (Wyo.1979), nor do we. The issues here are not identical and the law of property of Wyoming must be applied. The doctrine of collateral estoppel cannot be applied to the Radke litigation. AFFIRMED. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_source	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. JUDELSHON v. BLACK et al. No. 304. Circuit Court of Appeals, Second Circuit. April 3, 1933. Charles Solomon, of Brooklyn, N. Y., for appellants. Charles Gr. Hensley, of New York City, for appellee. Before MANTON, L. HAND, and SWAN, Circuit Judges. MANTON, Circuit Judge. The appellee owns a patent and sued appellants for infringement, obtaining a decree on November 24, 1926> holding the patent valid and infringed. Claiming a violation of the injunction therein contained against further infringement, they moved to punish the appellants for civil contempt. The matter was referred to a master, who took the testimony and reported that they were guilty of violation of the decree. Upon this report, Woolsey, J., punished the appellants for contempt finding a violation of the injunction, and imposed a fine of about $2,000, composed of counsel fees and disbursements and the master’s allowance and his disbursements. The appellants’ acts giving rise to the charge are found to have been committed under the following circumstances: In March, 1931, appellee placed in the hands of one Bonomo a spooling machine and a cutting machine with instructions to convey them to appellants’ shop' for repair. This was done solely for the purpose of obtaining evidence to establish that the appellants were infringing appellee’s patent. Bonomo said he did so, and appellants made repairs reconstructing the machines and charged $95 therefor, which was paid in cash. For this undertaking Bonomo was paid about $400. Bonomo said he saw workmen repairing the cutting machine. There is very strong evidence tending to show that appellants did not perform this work or make the repairs as claimed. But, accepting the facts here found, there is no conduct which is subject to punishment for civil contempt. Appellee freely stated as a witness that he engaged Bonomo to entrap and detect the appellants in violating his patent rights and the injunction. Appellee and appellants were competitors in trade, and the appellee said that the appellants were the only other concern that could makq repairs to this type of machine. The work of repair was set on foot by the appellee’s agent employed for the purpose of intriguing appellants with the view of inducing them to breach the injunction order. In this way they were entrapped, but, beyond the question of whether a court of equity should grant equitable relief under the circumstances, it is clear that there can be no fine imposed for this alleged civil contempt. There was no loss to the appellee. This is a ■civil proceeding to recover loss for the infringement. There was no infringement in making repairs to appellee’s machine, for he requested or procured it to be done. No damage was suffered by tho appellee in having his own machines rebuilt with his consent and approval. The theory of recovery in civil contempt proceedings is to compel the payment of damages by way of a fine, and, since no damages were suffered, there should bo no finding of contempt. Decree reversed. Question: What forum heard this case immediately before the case came to the court of appeals? 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. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
songer_appel1_1_4	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 first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". Your task is to determine what subcategory of business best describes this litigant. Jerome C. POWERS, Plaintiff-Appellee, v. J. B. MICHAEL & CO., Inc., Defendant-Appellant. No. 15294. United States Court of Appeals Sixth Circuit. April 7, 1964. Certiorari Denied June 15, 1964. See 84 S.Ct. 1886. William F. Kirsch, Jr., Memphis, Tenn. (David G. Williams, Shepherd, Heiskell, Williams, Wall & Kirsch, Memphis, Tenn., on the brief), for appellant. Thomas R. Prewitt, Memphis, Tenn. (Armstrong, McCadden, Allen, Braden & Goodman, Memphis, Tenn., of counsel), for appellee. Before PHILLIPS, Circuit Judge, MAGRUDER, Senior Circuit Judge for the First Circuit, and WEINMAN, District Judge. Sitting by designation pursuant to Section 294(d), Title 28 U.S.Code. MAGRUDER, Circuit Judge. Father Jerome C. Powers, driving his Buick car, had a collision with a truck on a Tennessee highway leading to Memphis. He was west bound and the truck was east bound. They met head-on. It was about dusk and also there was a drizzling rain at the moment of the collision. Both the plaintiff and the truck driver were unconscious after the impact and did not recall how the accident happened, and so there was no direct evidence of the cause of it. Father Powers testified that he was going at a reasonable speed and that his car was always on the right-hand side of the highway. After the accident the plaintiff’s car was somewhat over the line on the left-hand side of the road; but that was to be expected in the circumstances. Plaintiff sued, not the State of Tennessee but rather a contractor with which the State had a contract to widen a section of Highway 64, on which Father Powers was traveling. Since the accident took place on a portion of Highway 64 not included in the contract, the defendant contended that it had no responsibility to put up signs or other warnings of a dangerous condition of the highway. Another defense was that, if the defendant was guilty of any common law negligence, the plaintiff was himself guilty of contributory negligence. The issue of contributory negligence was left to the jury under instructions as to which the defendant took no exception, and therefore under Rule 51, Federal Rules of Civil Procedure, there could not be any objection on this score. In fact the defendant does not raise contributory negligence as an issue on appeal. Two of the points raised on appeal, which we must discuss hereinafter, refer to the trial judge’s alleged error in admitting evidence. The third has to do with the trial judge’s conduct at the trial, which the defendant says overstepped the line which even a federal judge may pursue. The fourth relates to whether the contractor had any duty to post a warning sign, because the accident occurred at a place on the highway excluded from the contract which the defendant had with the State of Tennessee. It may be noticed that this is not an action for breach of contract brought by the State of Tennessee against the defendant, but rather an action of tort brought by the plaintiff against the defendant for common law negligence proximately causing damages to the plaintiff. It seems that at a bridge on Highway 64 there was a narrowing of the highway from 24 feet to 18 feet. There was evidence by the witness Wilkinson for the defendant that he had warned a representative of the highway department of the State of Tennessee of the dangerous condition of this part of the road because he had observed that several automobiles had gone off the edge of the highway at that location. Mr. Wilkinson, an employee of the defendant, testified that from the presence of ruts in the soft part of the approaches to the bridge he was under the impression that there was “some danger of a car running down off of that and losing control,” and that he more than once told Mr. Graham, a division maintenance engineer of the Tennessee Highway Department, of the danger. Mr. Graham examined the locality and did not find that it was necessary to put up any more signs. If they had been installed, it would have had to be upon the part occupied by the defendant, in order to give adequate warning. It appears that the defendant and the highway department were in joint control of the premises and that the highway department did investigate whether any signs should be erected where the work was going on. The contract did not specify that the defendant should have warning signs on the portion of the highway which was included in its contract. However, as a practical construction of the contract, each party customarily warned the other of a dangerous condition which should be made known. There was evidence that Father Powers ran off the road at a spot within the excluded portion of Highway 64 near a bridge where the highway became narrower. The only question which was raised at that time was whether the defendant had any duty to do anything about the danger to automobilists because of the narrowing of the highway. The trial judge properly denied an instruction requested by the defendant that it was under no duty to do anything about a dangerous condition on an excluded portion of the highway. Upon the contrary, he charged the jury to the effect that “[0]ne who creates or maintains on a highway, or on adjacent shoulders to a highway, a condition of such character that danger of injury therefrom to persons lawfully using the highway may or should, in the exercise of ordinary care, be foreseen or apprehended is under the duty of exercising reasonable care, by means of signs or other means to prevent such injury; and the fact that a State Highway Department is bound by contract to maintain safeguards to prevent accidents and to take other precautions for the protection of the motoring public cannot relieve the person who creates or maintains such danger from liability. “In this case, gentlemen of the jury, if you find that defendant created a hazard which was the proximate cause of the accident in question and resulting injuries, the Court instructs you that the defendant was not entitled to assume that the State Highway Department would comply with any con-traetual obligations that it had with respect to the condition in question.” With reference to the alleged error by the trial judge in admitting evidence, the plaintiff introduced evidence that accidents had taken place prior to the one to him at approaches to other bridges on Highway 64. The trial judge was careful to tell the jury that this evidence was not admissible on the issue of the original negligence of the defendant, but solely for the limited purpose of establishing that the defendant had notice of the danger at that point. Furthermore, the applicable Tennessee decisions do not require exact proof of identity of conditions in order to render the evidence of prior accidents admissible on the question of notice. One should not be hypercritical upon this point. It is enough that the conditions were substantially the same when the other ears skidded off the highway. John Gerber Co. v. Smith, 150 Tenn. 255, 263 S.W. 974 (1924). The sufficiency of the showing of similarity of conditions is primarily a matter for the discretion of the trial judge. We perceive no abuse of discretion in this particular. The other alleged error in the admission of evidence by the trial judge was that the defendant put up on the premises subsequent to the accident some danger signs and smudge pots. The trial judge cautioned the jury at the time this evidence was introduced that it was not admissible as proof of original negligence by the defendant, if there was such, but was admissible only as it tended to prove that this part of the highway was under the control of the defendant. This was repeated in the general charge. It is true that the possible prejudicial effect of such evidence remains in the ease, but certainly it is a matter of discretion for the trial judge to admit this evidence for this limited purpose, and again we perceive no abuse of discretion, See Trigg v. H. K. Ferguson Co., 30 Tenn.App. 672, 209 S.W.2d 525 (1947). The appellant alleges misconduct by the trial judge which denied it the right to a trial before an impartial tribunal. See “The Trials and Tribulations of an Intermediate Appellate Court,” 44 Cornell L.Q. 3, 4 (1958). The evidence of examination by the trial judge concerns the testimony of Louie Graham, an employee of the Highway Department called by the defendant. There was the “loaded” question asked by the defendant, “Should the trial judge assume the role of a partisan advocate in his examination of the defendant's witness in such manner as to make the testimony of the witness appear to be contradictory and in such manner as to show partisanship on the part of the trial judge?” It was said by the defendant that the district court answered “Yes” to this question. Of course, the district court denied appearing as a “partisan advocate,” which obviously he should not do. The trial judge allowed a complete direct examination by counsel for the defendant, a cross-examination by counsel for the plaintiff, a redirect examination, a recross-examination, and a redirect examination, before he undertook, with evident reluctance, his questioning of the witness. The trial judge told the jury that they were the sole judges of the facts and that his questioning of the witness was not intended to show any opinion by him as to the merits of the case. It is discretionary with a federal judge how far he should question a witness for the purpose of eliciting the truth from him. We perceive no abuse of discretion in this respect. Indeed, in his charge to the jury the trial judge was very fair to the defendant and failed to disclose any hostility to it. A judgment will be entered affirming the judgment of the District Court. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". What subcategory of business best describes this litigant? A. residential B. commercial or industrial C. other D. unclear Answer:
sc_caseorigin	075	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. CITY OF GREENWOOD v. PEACOCK et al. No. 471. Argued April 26, 1966. Decided June 20, 1966. Hardy Lott argued the cause for petitioner in No. 471 and for respondent in No. 649. With him on the briefs was Aubrey H. Bell. Benjamin E. Smith argued the cause for respondents in No. 471 and for petitioners in No. 649. With him on the briefs were William Rossmore, Fay Stender, Jack Peebles, Claudia Shropshire and George Crockett. Louis F. Claiborne argued the cause for the United States, as amicus curiae, by special leave of Court. With him on the. brief were Solicitor General Marshall, Assistant Attorney General Doar, David L. Norman and Louis M. Kauder. Together with No. 649, Peacock et al. v. City of Greenwood, also on certiorari to the same court. Mr. Justice Stewart delivered the opinion of the Court. These consolidated cases, sequels to Georgia v. Rachel, ante, p. 780, involve prosecutions on various state criminal charges against 29 people who were allegedly engaged in the spring and summer of 1964 in civil rights activity in Leflore County, Mississippi. In the first case, 14 individuals were charged with obstructing the public streets of the City of Greenwood in violation of Mississippi law. They filed petitions to remove their cases to the United States District Court for the Northern District of Mississippi under 28 U. S. C. § 1443 (1964 ed.). Alleging that they were members of a civil rights group engaged, in a drive to encourage Negro voter registration in Leflore County, their petitions stated that they were denied or could not enforce in the courts of the State rights under laws providing for the equal civil rights of citizens of the United States, and that they were being prosecuted for acts done under color of authority of the Constitution of the United States and 42 U. S. C. § 1971 et seq. (1964 ed.). Additionally, their removal petitions alleged that the statute under which they were charged was unconstitutionally vague on its face, that it was ünconstitutionally applied to their conduct, and that its application was a part of a policy of racial discrimination fostered by the State of Mississippi and the City of Greenwood. The District Court sustained the motion of the City of Greenwood to remand the cases to the city police court for trial. The Court of Appeals for the Fifth Circuit reversed, holding that “a good claim for removal under § 1443 (1) is stated by allegations that a state statute has been applied prior to trial so as to deprive an accused of his equal civil rights in that the arrest and charge under the statute were effected for reasons of racial discrimination.” Peacock v. City of Greenwood, 347 F. 2d 679, 684. Accordingly, the cases were remanded to the District Court for a hearing on the truth of the defendants’ allegations. At the same time, the Court of Appeals rejected the defendants’ contentions under 28 U. S. C. § 1443 (2), holding that removal under that subsection is available only to those who have acted in an official or quasi-official capacity under a federal law and who can therefore be said to have acted under “color of authority” of the law within the meaning of that provision. In the second case, 15 people allegedly affiliated with a civil rights group were arrested at different times in July and August of 1964 and charged with various offenses against the laws of Mississippi or ordinances of the City of Greenwood. These defendants filed essentially identical petitions for removal in the District Court, denying that they had engaged in any conduct prohibited by valid laws and stating that their arrests and prosecutions were for the “sole purpose and effect of harassing Petitioners and of punishing them for and deterring them from the exercise of their constitutionally protected right to protest the conditions of racial discrimination and segregation” in Mississippi. As grounds for removal, the defendants specifically invoked 28 U. S. C. §§ 1443 (l) and 1443 (2). The District Court held that the cases had been improperly'removed and remanded them to the police court of the City of Greenwood. In a per curiam opinion finding the issues “identical with” those determined in the Peacock case, the Court of Appeals for the Fifth Circuit reversed and remanded the cases to the District Court for a hearing on the truth of the defendants’ allegations under § 1443 (1). Weathers v. City of Greenwood, 347 F. 2d 986. We granted certiorari to consider the important questions raised by the parties concerning the scope of the civil rights removal statute. 382 U. S. 971. As in Georgia v. Rachel, ante, p. 780, we deal here not with questions of congressional power, but with issues of statutory construction. I. The individual petitioners contend that, quite apart from 28 U. S. C. § 1443 (1), they are entitled to remove their cases to the District Court under 28 U. S. C. § 1443 (2), which authorizes the removal of a civil action or criminal prosecution for “any act under color of authority derived from any law providing for equal rights . . . .” The core of their contention is that the various federal constitutional and statutory provisions invoked in their removal petitions conferred “color of authority” upon them to perform the acts for which they are being prosecuted by the State. We reject this argument, because we have concluded that the history of § 1443 (2) demonstrates convincingly that this subsection of the removal statute is available only to federal officers and to persons assisting such officers in the performance of their official duties. The progenitor of § 1443 (2) was § 3 of the Civil Rights Act of 1866, 14 Stat. 27. Insofar as it is relevant here, that section granted removal of all criminal prosecutions “commenced in any State court . . . against any officer, civil or military, or other person, for any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act or the act establishing a Bureau for the relief of Freedmen and Refugees, and all acts amendatory thereof . . . .” (Emphasis added.) The statutory phrase “officer ... or other person” characterizing the removal defendants in § 3 of the 1866 Act was carried forward without change through successive revisions of the removal statute until 1948, when the revisers, disavowing any substantive change, eliminated the phrase entirely. The definition of the persons entitled to removal under the present form of the statute is therefore appropriately to be read in the light of the more expansive language of the statute’s ancestor. See Madruga v. Superior Court, 346 U. S. 556, 560, n. 12; Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 227-228. In the context of its original enactment as part of § 3 of the Civil Rights Act of 1866, the statutory language “officer ... or other person” points squarely to the conclusion that the phrase “or other person” meant persons acting in association with the civil or military officers mentioned in the immediately preceding words of the statute. That interpretation stems from the obvious contrast between the “officer ... or other person” phrase and the next preceding portion of the statute, the predecessor of the present § 1443 (1), which granted removal to “any . . . person” who was denied or could not enforce in the courts of the State his rights under § 1 of the 1866 Act. The dichotomy between “officer ... or other person” and “any . . . person” in these correlative removal provisions persisted through successive statutory revisions until 1948, even though, were we to accept the individual petitioners’ contentions, the two phrases would in fact have been almost entirely co-extensive. It is clear that the “other person” in the “officer . . . or other person” formula of § 3 of the Civil Rights Act of 1866 was intended as an obvious reference to certain categories of persons described in the enforcement provisions, §§4-7, of the Act. 14 Stat. 28-29. Section 4 of the Act specifically charged both the officers and the agents of the Freedmen’s Bureau, among others, with the duty of enforcing the Civil Rights Act. As such, those officers and agents were required to arrest and institute proceedings against persons charged with violations of the Act. By the “color of authority” removal provision of § 3 of the Civil Rights Act, “agents” who derived their authority from the Freedmen’s Bureau legislation would be entitled as “other persons,” if not as “officers,” to removal of state prosecutions against them based upon their enforcement activities under both the Freedmen’s Bureau legislation and the Civil Rights Act. Section 5 of the Civil Rights Act, now 42 U. S. C. § 1989 (1964 ed.), specifically authorized United States commissioners to appoint “one or more suitable persons” to execute warrants and other process issued by the commissioners. These “suitable persons” were, in turn, specifically authorized “to summon and call to their aid the bystanders or posse comitatus of the proper county.” Section 6 of the Act provided criminal penalties for any individual who obstructed “any officer, or other person charged with the execution of any warrant or process issued under the provisions of this act, or any person or persons lawfully assisting him or them,” or who rescued or attempted to rescue prisoners “from the custody of the officer, other person or persons, or those lawfully assisting.” Finally, § 7 of the Act, now 42 U. S. C. § 1991 (1964 ed.), awarded a fee of five dollars for each individual arrested by the “person or persons authorized to execute the process” — i. e., the “one or more suitable persons” of § 5. Thus, the enforcement provisions of the 1866 Act were replete with references to “other persons” in contexts obviously relating to positive enforcement activity under the Act. The derivation of the statutory phrase “For any act” in § 1443 (2) confirms the interpretation that removal under this subsection is limited to federal officers and those acting under them. The phrase “For any act” was substituted in 1948 for the phrase “for any arrest or imprisonment or other trespasses or wrongs.” Like the “officer ... or other person” provision, the language specifying the acts on which removal could be grounded had, with minor changes, persisted until 1948 in the civil rights removal statute since its original introduction in the 1866 Act. The language of the original Civil Rights Act — “arrest or imprisonment, trespasses, or wrongs”— is pre-eminently the language of enforcement. The words themselves denote the very sorts of activity for which federal officers, seeking to enforce the broad guarantees of the 1866 Act, were likely to be prosecuted in the state courts. As the Court of Appeals for the Second Circuit has put it, “ ‘Arrest or imprisonment, trespasses, or wrongs/ were precisely the probable charges against enforcement officers and those assisting them; and a statute speaking of such acts ‘done or committed by virtue of or under color of authority derived from’ specified laws reads far more readily on persons engaged in some sort of enforcement than on those whose rights were being enforced . . . .” New York v. Galamison, 342 F. 2d 255, 262. The language of the “color of authority” removal provision of § 3 of the Civil Rights Act of 1866 was taken directly from the Habeas Corpus Suspension Act of 1863, 12 Stat. 755, which authorized the President to suspend the writ of habeas corpus and precluded civil and criminal liability of any person making a search, seizure, arrest, or imprisonment under any order of the President during the rebellion. Section 5 of the 1863 Act provided for the removal of all suits or prosecutions “against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any Act of Congress.” 12 Stat. 756. See The Mayor v. Cooper, 6 Wall. 247; Phillips v. Gaines, 131 U. S. App. clxix. Since the 1863 Act granted no rights to private individuals, its removal provision was concerned solely with the protection of federal officers and persons acting under them in the performance of their official duties. Thus, at the same time that Congress expanded the availability of removal by enacting the “denied or cannot enforce” clause in § 3 of the Civil Rights Act of 1866, it repeated almost verbatim in the “color of authority” clause the language of the 1863 Act — language that was clearly limited to enforcement activity by federal officers and those acting under them. For these reasons, we hold that the second subsection of § 1443 confers a privilege of removal only upon federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights. Accordingly, the individual petitioners in the case before us had no right of removal to the federal court under 28 U. S. C. § 1443 (2). II. We come, then, to the issues which this case raises as to the scope of 28 U. S. C. § 1443 (1). In Georgia v. Rachel, decided today, we have held that removal of a state court trespass prosecution can be had under § 1443 (1) upon a petition alleging that the prosecution stems exclusively from the petitioners’ peaceful exercise of their right to equal accommodation in establishments covered by the Civil Rights Act of 1964, § 201, 78 Stat. 243, 42 U. S. C. § 2000a (1964 ed.). Since that Act itself, as construed by this Court in Hamm v. City of Rock Hill, 379 U. S. 306, 310, specifically and uniquely guarantees that the conduct alleged in the removal petition in Rachel may “not be the subject of trespass prosecutions,” the defendants inevitably are “denied or cannot enforce in the courts of [the] State a right under any law providing for . . . equal civil rights,” by merely being brought before a state court to defend such a prosecution. The present case, however, is far different. In the first place, the federal rights invoked by the individual petitioners include some that clearly cannot qualify under the statutory definition as rights under laws providing for “equal civil rights.” The First Amendment rights of free expression, for example, so heavily relied upon in the removal petitions, are not rights arising under a law providing for “equal civil rights” within the meaning of § 1443 (1). The First Amendment is a great charter of American freedom, and the precious rights of personal liberty it protects are undoubtedly comprehended in the concept of “civil rights.” Cf. Hague v. C. I. O., 307 U. S. 496, 531-532 (separate opinion of Stone, J.). But the reference in § 1443 (1) is to “equal civil rights.” That phrase, as our review in Rachel of its legislative history makes clear, does not include the broad constitutional guarantees of the First Amendment. A precise definition of the limitations of the phrase “any law providing for . . . equal civil rights” in § 1443 (1) is not a matter we need pursue to a conclusion, however, because we may proceed here on the premise that at least the two federal statutes specifically referred to in the removal petitions, 42 U. S. C. § 1971 and 42 U. S. C. § 1981, do qualify under the statutory definition. The fundamental claim in this case, then, is that a case for removal is made under § 1443 (1) upon a petition alleging: (1) that the defendants were arrested by-state officers and charged with various offenses under state law because they were Negroes or because they were engaged in helping Negroes assert their rights under federal equal civil rights laws, and that they are completely innocent of the charges against them, or (2) that the defendants will be unable to obtain a fair trial in the state court. The basic difference between this case and Rachel is thus immediately apparent. In Rachel the defendants relied on the specific provisions of a preemptive federal civil rights law — §§ 201 (a) and 203 (c) of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000a (a) and 2000a-2 (c) (1964 ed.), as construed in Hamm v. City of Rock Hill, supra—that, under the conditions alleged, gave them: (1) the federal statutory right to remain on the property of a restaurant proprietor after being ordered to leave, despite a state law making it a criminal offense not to leave, and (2) the further federal statutory right that no State should even attempt to prosecute them for their conduct. The Civil Rights Act of 1964 as construed in Hamm thus specifically and uniquely conferred upon the defendants an absolute right to “violate” the explicit terms of the state criminal trespass law with impunity under the conditions alleged in the Rachel removal petition, and any attempt by the State to make them answer in a court for this conceded “violation” would directly deny their federal right “in the courts of [the] State.” The present case differs from Rachel in two significant respects. First, no federal law confers an absolute right on private citizens — on civil rights advocates, on Negroes, or on anybody else — to obstruct a public street, to contribute to the delinquency of a minor, to drive an automobile without a license, or to bite a policeman. Second, no federal law confers immunity from state prosecution on such charges. To sustain removal of these prosecutions to a federal court upon the allegations of the petitions in this case would therefore mark a complete departure from the terms of the removal statute, which allow removal only when a person is “denied or cannot enforce” a specified federal right “in the courts of [the] State,” and a complete departure as well from the consistent line of this Court’s decisions from Strauder v. West Virginia, 100 U. S. 303, to Kentucky v. Powers, 201 U. S. 1. Those cases all stand for at least one basic proposition: It is not enough to support removal under § 1443 (1) to allege or show that the defendant’s federal equal civil rights have been illegally and corruptly denied by state administrative officials in advance of trial, that the charges against the defendant are false, or that the defendant is unable to obtain a fair trial in a particular state court. The motives of the officers bringing the charges may be corrupt, but that does not show that the state trial court will find the defendant guilty if he is innocent, or that in any other manner the defendant will be “denied or cannot enforce in the courts” of the State any right under a federal law providing for equal civil rights. The civil rights removal statute does not require and does not permit the judges of the federal courts to put their brethren of the state judiciary on trial. Under § 1443 (1), the vindication of the defendant’s federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court. Georgia v. Rachel, ante; Strauder v. West Virginia, 100 U. S. 303. What we have said is not for one moment to suggest that the individual petitioners in this case have not alleged a denial of rights guaranteed to them under federal law. If, as they allege, they are being prosecuted on baseless charges solely because of their race, then there has been an outrageous denial of their federal rights, and the federal courts are far from powerless to redress the wrongs done to them. The most obvious remedy is the traditional one emphasized in the line of cases from Virginia v. Rives, 100 U. S. 313, to Kentucky v. Powers, 201 U. S. 1—vindication of their federal claims on direct review by this Court, if those claims have not been vindicated by the trial or reviewing courts of the State. That is precisely what happened in two of the cases in the Rives-Powers line of decisions, where removal under the predecessor of § 1443 (1) was held to be unauthorized, but where the state court convictions were overturned because of a denial of the defendants’ federal rights at their trials. That is precisely what has happened in countless cases this Court has reviewed over the years— cases like Shuttlesworth v. Birmingham, 382 U. S. 87, to name one at random decided in the present Term. “Cases where Negroes are prosecuted and convicted in state courts can find their way expeditiously to this Court, provided they present constitutional questions.” England v. Medical Examiners, 375 U. S. 411, 434 (Douglas, J., concurring). But there are many other remedies available in the federal courts to redress the wrongs claimed by the individual petitioners in the extraordinary circumstances they allege in their removal petitions. If the state prosecution or trial 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_appbus	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 "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. ARTHUR N. OLIVE CO., Inc., et al., Defendants, Appellants, v. UNITED STATES of America, for the use and benefit of Dan C. MARINO, etc., Plaintiff, Appellee. No. 5881. United States Court of Appeals First Circuit. Heard Nov. 8, 1961. Decided Dec. 8, 1961. On Rehearing Jan. 16, 1962. Charles E. Gennert, Boston, Mass., with whom Herbert L. Crimlisk and Withington, Cross, Park & McCann, Boston, Mass., were on brief, for appellants. Philip D. Epstein, Boston, Mass., for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. HARTIGAN, Circuit Judge. This is an appeal from a judgment following a jury verdict in the United States District Court for the District of Massachusetts for the use plaintiff, Dan C. Marino (hereinafter called Marino), in an action to recover on a payment bond filed under the Miller Act. 49 Stat. 793, 40 U.S.C.A. § 270a et seq. Marino, a resident of Massachusetts, is engaged in the contracting business. On June 25,1958, the appellant, Arthur N. Olive Co., Inc., (hereinafter called Olive), a Massachusetts corporation, contracted with the United States to construct Sewerage System Modifications at three NIKE Battery sites in Massachusetts. Olive furnished a payment bond with the New Amsterdam Casualty Company as surety. On August 7, 1958 Olive subcontracted a portion of his prime contract to Marino for $62,000. Incident to this subcontract, Marino furnished labor and materials valued at some $55,000 to $57,000, leaving a total of $5,000 to $6,000 worth of work unperformed at the time that work was discontinued because of an alleged breach of the contract by Olive. In addition to the work which he performed incident to the subcontract, Marino at Olive’s direction performed “extra” work at the same sites which were the subject of the original agreement. These extras, some but not all of which were contemplated in the initial subcontract, embraced such projects as drilling, blasting, trenching and- laying pipe. Testimony of Marino indicated that the value of these extras amounted to approximately $37,000. Marino, in establishing the basis for the extras testified that his charges were fair and reasonable in each instance. He was unable to identify with any notable specificity the precise profit margin on a particular project. However, his testimony indicated that while his minimum profit margin was ten percent, in some instances it rose to as much as thirty-five percent. Ninety days having elapsed since he performed the last of his work on the NIKE installations, Marino brought this action to recover under the “payment bond” filed pursuant to the Miller Act. Both Olive and New Amsterdam were joined as defendants in this suit. At the time that he initiated this action, Marino had billed Olive $54,000 under the subcontract and had been paid $52,-500. Marino’s complaint, invoking the jurisdiction of the district court under the Miller Act, recited the fact that he had agreed with Olive to furnish labor and materials for the Sewerage System Modifications, that such labor and materials were actually furnished and “that by reason of furnishing the aforesaid materials there became due and owing to the use plaintiff, Dan C. Marino, the sum of forty-two thousand one hundred eleven dollars 9/100 ($42,111.09) with interest thereon. * * ” Following a lengthy trial, the jury returned a verdict for Marino in the sum of $30,633.17 to which interest was added. The principal questions on this appeal arise from the instructions of the trial judge to the jury on the elements which it might consider in awarding Marino damages. In discussing the question of damages the trial judge charged the jury: “If you find for the plaintiff you are to assess damages sufficient in amount to compensate the plaintiff for the loss you find he actually sustained; that is, he is to recover the amount you find to be due for any extras which you find he performed at the request of the Olive Company, plus any amount you find still to be due, if you find such, on the basic contract plus the profit, if any, he would have made on the remaining unperformed portion of the contract which was not completed by him, and to determine this last figure you are to take the balance unpaid on the contract and subtract from it what you find to be the cost of completing the unfinished work.” Appellant objected to that portion of the charge which permitted the recovery of profit on unperformed work under the basic contract. It also objected to the language in the charge which would permit a recovery of profit on the “extras” which were supplied by Marino. Appellant argues that by permitting the jury to award profits “on the remaining unperformed portion of the contract which was not completed by him” the trial judge, in effect, permitted Marino to recover damages for a breach of the contract. It urges that recovery of such damages — by a subcontractor situated as Marino — would be manifestly outside the purview of the Miller Act. We agree with appellant’s position in this regard. The Miller Act, like its statutory predecessor, the Heard Act, 28 Stat. 278, was enacted to give those supplying labor and materials for government construction contracts, protection comparable to that furnished by mechanics’ and materialmen’s liens where private construction is involved. United States v. Harman, 192 F.2d 999 (4 Cir. 1951); see, United States v. Munsey Trust Co., 332 U.S. 234, 241, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947). So far as is relevant here the Miller Act provides: “ (a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished * * shall have the right to sue on such payment bond for the * * * balance * * * unpaid at the time of institution of such suit * * 40 U.S. C.A. § 270b(a). The Act is a Congressional recognition of the equity in favor of those whose actual expenditure of work or utilization of material has enhanced the value of the property in question. However, since the statute was enacted to confer rights equivalent to those which would accrue under a lien where private construction is involved and since unrealized gain or profit for breach of contract cannot be recovered under such a lien, a subcontractor should not be allowed to recover for loss of profits on the statutory bond under the Miller Act. While the subcontractor may assuredly institute an independent action against the contractor for the unrealized profits stemming from the breach, the courts are uniform in holding that such an action may not be maintained against the surety on the contractor’s bond under the Miller Act. L. P. Friestedt Co. v. U. S. Fireproofing Co., 125 F.2d 1010 (10 Cir. 1942); United States v. John A. Johnson & Sons, 65 F.Supp. 514 (D.C.Md.1945), aff’d., 153 F.2d 534 (4 Cir. 1946); United States v. Maryland Casualty Co., 54 F.Supp. 290 (D.C.W.D.La.1944), aff’d., 147 F.2d 423 (5 Cir. 1945); United States, to Use of Watsabaugh v. Seaboard Surety Co., 26 F.Supp. 681 (D.C.Mont.1938), aff’d., 106 F.2d 355 (9 Cir. 1939). Moreover, a reading of the complaint shows that, consonant with the statutory criteria, Marino merely sought recovery on the basis of the labor and materials which were actually furnished in the construction of the projects here at issue. However, it is apparent that under the trial judge’s instructions, Marino was allowed to recover not only for the labor and materials supplied but also for the profit on the labor and materials which he did not supply because of the supervening breach by Olive — “the profits on the unperformed portion of the contract.” In short, Marino was enabled to recover for an item which he failed to even ask for in his complaint. Quite apart from the foregoing, the charge of the trial judge is also subject to the infirmity that, in effect, it permitted Marino a double recovery of one of his ostensible items of damage. As seen above, the trial judge told the jury that in computing its award of damages for Marino, it might consider three distinct items: (1) the amount due for extras ; (2) the amount yet unpaid on the basic contract; (3) the profit on the unperformed portion of the contract. Under these instructions the court allowed the jury to award Marino the “amount due on the basic contract” twice. The possibility of this dual recovery is best exemplified by a tabular presentation of the pertinent amounts here at issue. Thus, following the judge’s instruction, the jury would have computed the “amount due on the basic contract” as follows: Work performed $55,000 or $57,000 Less : Payments by Olive $52,500 Balance $ 2,500 or $ 4,500 Having made this computation, the jury presumptively would then turn to the next item enumerated by the court— the profit on the unperformed portion of the contract. Under the instruction this was to be computed by taking the balance unpaid on the basic contract and deducting from it the cost of completing the unperformed work. This computation would appear tabularly as: Contract $62,000 Payments $52,500 Balance unpaid on the contract $ 9,500 Less: Cost of completing $5,000-$6,000 worth of unperformed work. It is obvious, relative to this last calculation, that the trial judge should have directed the jury to deduct from the $9,500 figure the $2,500-$4,500 amount which had previously been computed as a separate item. Under the court’s formula, the jury was thus allowed to award $2,500-$4,500 damages a second time. This, of course, was demonstrably prejudicial to the appellant. Appellant’s second principal contention is that Marino was not entitled to a profit on the “extras” which he furnished but rather that he should be restricted to their actual cost. There is no question that the extras were all furnished at Olive’s direction, with his acquiescence and were utilized on the instant projects. We believe that in this situation the subcontractor should be allowed to recover a reasonable profit on the extras thus furnished. Out-of-pocket expense is not the limit of the fair value of labor and materials. See Continental Casualty Co. v. Schaefer, 173 F.2d 5, 8 (9 Cir. 1949). The question of whether Marino’s charges for the extras were reasonable may be determined on the remand of this case. Judgment will be entered vacating paragraphs 1 and 2 of the amended judgment of the District Court, setting aside the verdict to that extent, remanding the case to that Court for a new trial on the complaint, as amended, and affirming paragraph 3 of said amended judgment. 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_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. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL NO. 42, INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, Respondent. No. 72-1145. United States Court of Appeals, Third Circuit. Submitted Oct. 2, 1972. Decided Nov. 7, 1972. Rehearing En Banc Denied Feb. 21, 1973. Marcel Mallet-Prevost, Asst. General Counsel, N.L.R.B., Washington, D. C., for petitioner. Harvey B. Rubenstein, Wilmington, Del., for respondent. Before SEITZ, Chief Judge, and HASTIE and HUNTER, Circuit Judges. OPINION OF THE COURT PER CURIAM: This is an application by the National Labor Relations Board (Board) for enforcement of its order against Respondent, Local No. 42, International Association of Heat & Frost Insulators & Asbestos Workers (Union). As found by the Board, the three insulation contractors in Wilmington, Delaware had negotiated as a multi-employer unit previous to 1970, with each employer signing the final contract with the Union separately. In anticipation of the 1970 contract negotiations, they joined the Allied Construction Industries Division of the Delaware Contractors’ Association, Inc. (DCA), a trade association; DCA then formed the Insulation Trade Group, a subdivision composed exclusively of the three contractors. These contractors desired the association to negotiate and execute the upcoming contracts with the Union. Both DCA and the employers notified the Union of this intention. When negotiations began on May 19, 1970, the Union objected to the substitution of DCA as the contracting party. Although it continued these objections in subsequent bargaining sessions, the Board found these insufficient to nullify the acceptance evidenced by the Union’s negotiations with DCA on substantive elements of the contract. While it noted that substantial progress had been made on various provisions, it focused particularly upon the tentative term in the contract recognizing DCA as the contracting party. On July 14, 1970, the existing contract expired, and the Union struck the contractors. DCA issued a press release detailing the bargaining positions of the parties, contrary to the past practice of secrecy during negotiations. Because of this, the Union refused to bargain further with DCA and insisted that all future negotiations be between the Union and the employers themselves, as in the past. DCA filed a complaint with the Board, charging the Union with refusal to negotiate, in violation of § 8(b)(3) of the National Labor Relations Act, as amended [29 U.S.C. § 158(b)(3) (1971)]. After a hearing, the Trial Examiner concluded that the Union had never accepted DCA as a negotiating party and dismissed the complaint; he premised the dismissal upon his finding that the continuing objections by the Union nullified any manifested acceptance of DCA as a party. The Board reversed, ordering the Union to sign a contract with DCA, upon request, identical to the one executed with the three employers, but incorporating a provision designating DCA as the bargaining and contracting agent for the three. It is this order which it now seeks to have us enforce. Once a party agrees to multiemployer unit bargaining, it cannot withdraw its assent during negotiations absent special conditions or mutual consent of the parties. Cf. NLRB v. John J. Corbett Press, 401 F.2d 673 (2d Cir. 1968); see also NLRB v. Dover Tavern Owners’ Ass’n, 412 F.2d 725 (3d Cir. 1969) . A corollary is that once assent is given to the inclusion of a party, it cannot be withdrawn during negotiations absent similar conditions. However, a peculiar twist is presented here. While the Board found that the Union continued to object to DCA as the bargaining party, it also found that the Union had negotiated with DCA on specific terms of the contract, manifesting by its actions acceptance of DCA as the contracting party. This finding, which directly contradicted the Trial Examiner’s, was the premise for the Board’s reversal. Therefore, the critical issue before this court is whether the Board properly exercised its powers in making this determination. The Board has the power to draw different conclusions from evidentiary facts presented to the Trial Examiner, as it did here. See International Union of Elec., Radio and Machine Workers, A.F.L.-C.I.O. v. NLRB, 273 F.2d 243, 247 (3d Cir. 1959). In turn, this court must determine whether the Board’s decision is supported by substantial evidence on the record. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Utilizing these two standards, we find that the Board validly exercised its power in reversing the Trial Examiner and that its findings were substantially supported by the record. Three additional issues raised by the Union merit short discussion. First, the Union contends that substitution of DCA as signatory party was a subject for negotiation. The Board’s order requiring it to execute a contract with DCA, it claims, undermines the collective bargaining process. However, the Board found that the Union had accepted DCA as the contracting party; consequently, its order merely remedies the unfair labor practice committed by the Union. Secondly, the Union contends that since DCA was not a party to the final contract, the association had no standing to file a complaint with the Board over its wrongful exclusion. The Union claims the Act grants standing only to an “aggrieved party”; therefore, the Board rule which grants standing to “any party” exceeds the statutory grant and is invalid. This court previously has upheld the validity of the Board’s rule. See NLRB v. Television & Radio Brdcstg. Studio Employees, 315 F.2d 398 (3d Cir. 1963). Thirdly, the Union contends that since the final contracts, as signed, failed to include a stipulation preserving DCA’s rights before the Board, DCA and the employers have waived their right to a Board-enforced remedy. However, absent an express waiver of § 8 rights, none will be inferred. See Timken Roller Bearing Co. v. NLRB, 325 F.2d 746 (6th Cir. 1963), cert. denied, 376 U.S. 971, 84 S.Ct. 1135, 12 L.Ed.2d 85 (1964). The Union has not shown any express waiver here. After examining the record, we have concluded that a modification of the Board’s order must be made. Prior to the Union’s refusal to negotiate with DCA, the parties agreed the signatory party for the employers would be the Insulation Trade Group of DCA, composed exclusively of the three area insulation contractors. This limitation was agreed upon to ameliorate the Union’s fears that signing with DCA would require it to furnish its members to all association members upon demand. This necessarily was one of 'the elements which induced the acceptance by the Union of DCA found by the Board. Therefore, the order requiring the Union to execute a contract with DCA will be modified to require the Union to execute it solely with the Insulation Trade Group, Allied Construction Industries Division of DCA. The order of the Board will be enforced as modified herein. 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:
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. Nevelle R. STUD, Plaintiff-Appellant, v. TRANS INTERNATIONAL AIRLINES, a corporation, Transamerica Airlines, a corporation, Defendants-Appellees. No. 83-1543. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 12, 1984. Decided March 8, 1984. Terence S. Cox, Derby, Cook, Quinby & Tweedt, San Francisco, Cal., for plaintiff-appellant. Drew Pomerance, William Y. O’Connor, Kern, Wooley & Maloney, Los Angeles, Cal., for defendants-appellees. Before GOODWIN, PREGERSON and NELSON, Circuit Judges. GOODWIN, Circuit Judge. Nevelle Stud, the owner and shipper of a horse named Super Clint, sued for damages sustained when the horse died ten days after shipment on a Transamerica flight. Stud appeals from a summary judgment for Transamerica. In April 1980, Transamerica transported Super Clint on a flight from Canada to New Zealand. Super Clint, for whom Stud had paid $300,000 the month before, seemed to be in good health upon arrival in New Zea-land on April 4. Shortly afterward the horse became visibly ill; he died on April 14,1980. A veterinarian who performed an autopsy on April 15 concluded that the cause of death was “pleuro pneumonia probably brought on by the stress of travel.” A final autopsy report dated June 21, 1980, concluded that temperature fluctuations in the cabin of the airplane probably caused the illness that claimed Super Clint. On June 25, Stud’s insurance agent submitted a written notice of claim to Trans-america’s New Zealand ground handling agent. After negotiations with Transamerica proved fruitless, Stud filed this action for damages, alleging breach of the carriage contract, negligence, and willful misconduct. The district court held that the Warsaw Convention barred Stud’s claim because Stud had failed to give Transamerica timely written notice of his loss. The Warsaw Convention, 49 Stat. 3000, T.S. 876, 137 L.N.T.S. 11, governs the international carriage of goods by air, and thus applies to the shipment of Super Clint. Canada, New Zealand, and the United States are all parties to the Warsaw Convention in its original 1929 version. See Av.L.Rep. (CCH) ¶ 27,054. A protocol concluded at The Hague in 1955 amended portions of the Convention relevant to this case. 478 U.N.T.S. 371. Canada and New Zealand are parties to the Hague Protocol but the earlier version of the Convention remains in force in this country because Congress has not ratified the Protocol. Because our jurisdiction is based not simply on the existence of a federal question under the version of the Warsaw Convention in force in the United States, see Enayati v. Lufthansa German Airlines, 714 F.2d 75, 76 (9th Cir.1983), but on diversity of citizenship as well, we are not compelled to apply the United States version of the Convention. Instead, we use the choice of law rules of California, the state in which this action was filed, to determine the applicable law. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). California applies the law of the place where a contract is to be performed, or, if a contract does not specify a place of performance, the law of the place where it was made. Cal. Civ.Code § 1646. The contract of carriage was performed by shipping Super Clint between two Hague Protocol countries and the Air Waybill covering his shipment indicates that the contract of carriage was made in Canada, a Hague Protocol country. We therefore apply the Warsaw Convention as amended by the Hague Protocol. Under the Convention, a carrier is prima facie liable for damage to goods shipped by air if the damage was caused during the transportation by air, Article 18, but can avoid this liability by proving that it and its agents took “all necessary measures” to avoid the damage. Article 20. To hold a carrier liable, the person entitled to delivery of the goods must comply with the notice of complaint requirement of Article 26(2). It states that “[i]n case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within ... fourteen days from the date of the receipt in the case of goods.” If notice of complaint is not given within the prescribed time period, “no action shall lie against the carrier.” Article 26(4). Because Stud did not complain to Transamerica within fourteen days after Super Clint’s arrival in New Zealand, his action is barred. Article 26(2) makes notice of complaint a prerequisite to recovery only “[i]n case of damage.” The Fifth Circuit has recently held that Article 26(2) does not require a notice of complaint to recover for lost or destroyed goods. Dalton v. Delta Airlines, 570 F.2d 1244 (5th Cir.1978). This position has merit in appropriate cases. Article 18 of the Convention, which creates liability, distinguishes among destruction, loss, and damage. Because the Convention’s drafters made such a distinction in one Article, it is logical to construe Article 26(2), which speaks only of damage, as maintaining that distinction and not requiring notice of complaint when the goods have been lost or destroyed. Commentators from several foreign countries agree. M. Litvine, Droit Aérien 250 (1970) (Belgium); W. Guldi-mann, Internationales Lufttransportrecht 155 (1965) (Switzerland); H. Abraham, Das Recht der Luftfahrt 372 (1960) (West Germany). Whether Article 26(2) requires notice of complaint thus depends on whether the shipped goods were destroyed or merely damaged. Applying this rule to the shipment of Super Clint is difficult because Super Clint presents a case of both damage and destruction. Following the analysis in Dalton v. Delta Airlines, Super Clint arguably was “destroyed” within the meaning of the Convention when he died. In Dalton, greyhounds that had been alive when handed over to the carrier died in transit. Because the dogs were dead on arrival, the court held that they had been destroyed, not merely damaged, observing that dead dogs were “not at all the thing shipped,” 570 F.2d at 1247, and had lost all economic value beyond scrap value. But unlike the dogs in Dalton, Super Clint arrived alive and in apparent good health. When he left Transamerica’s hands, Super Clint had been neither lost nor destroyed. At most, according to the allegations of the complaint, the horse had been damaged. The policy underlying Article 26(2) persuades us that the condition of the goods at the time they leave the carrier’s hands should determine whether notice of complaint is a prerequisite to recovery. It is reasonable to interpret Article 26(2) not to require notice of complaint for destroyed goods because the very fact of destruction gives the carrier actual notice that a claim may be forthcoming. When the carrier opens the cargo bay at the end of a flight and discovers that an animal shipped live is now dead, the carrier knows that an injury has occurred for which it may be held liable. Dalton, 570 F.2d at 1247; W. Guldimann, supra, at 155. But the fact of destruction can be counted on to give the carrier actual notice only if the goods are still in its possession when the destruction occurs. Once the goods have left the carrier’s possession, destruction can easily occur without the carrier’s knowledge. Post-delivery destruction resembles the situation presented by goods that are merely damaged. Mere damage to goods will often be hidden from view and fail to give the carrier actual notice of the loss. Rather than inquire in each case whether damage short of destruction was sufficiently obvious to give the carrier actual notice, Article 26(2) adopts a blanket rule making notice of complaint a prerequisite to recovery for any damage to goods. The same rule should apply to post-delivery destruction because the cause may also be hidden from the carrier. Article 26(2) Required Stud to give notice of complaint within fourteen days of receipt of Super Clint as a precondition to recovery. Stud gave Transamerica notice of complaint on June 25, 1980, four days after he received a final autopsy report on Super Clint, but more than two months after the horse’s death. Stud claims that the complaint was timely because until he received the autopsy report, he did not know that he could hold Transamerica liable. Stud’s notice of complaint was not timely. Even if we assume for the sake of argument that the fourteen-day period may be enlarged when damage to or destruction of goods could not, in the exercise of due diligence, be discovered within that period, it should not be enlarged here. Within fourteen days of receipt, a diligent shipper would have known — and Stud in fact knew — of both the damage to and the destruction of Super Clint. The Convention did not require Stud to prove to a certainty at the time of giving notice that Trans-america had caused Super Clint’s death. There was no need to wait for a final autopsy report before giving notice of complaint. Transamerica had actual knowledge of Super Clint’s death shortly after it occurred. The horse was something of a celebrity and its death was reported in the local news media. Stud argues that this actual knowledge satisfies the notice requirement of Article 26(2). It does not. Article 26(3) requires that the notice of complaint be in writing. If written notice of a consignee’s complaint is necessary to preserve the right of recovery, a carrier’s actual knowledge of the loss, gleaned from a source other than a written notice of complaint, is necessarily insufficient. Shah Safari, Inc. v. Western Airlines, 17 Av.Cas. (CCH) 17,101 (W. D.Wash.1982); Amazon Coffee Co. v. Trans World Airlines, 18 Av.Cas. (CCH) 17,264 (N.Y.Sup.Ct.1983). One reason for the written notice requirement is to avoid endless speculation about who knew what and when they allegedly knew it. Stud also claims that Transamerica waived its right to a notice of complaint by engaging in settlement negotiations for nearly two years before it raised in defense the lack of notice of complaint. Because Stud did not come forward with facts showing that Transamerica had intentionally relinquished a known right to notice of complaint, CBS, Inc. v. Merrick, 716 F.2d 1292, 1295 (9th Cir.1983), there was no waiver and the district court properly entered summary judgment against Stud on this point. Affirmed. . Transamerica is the successor to Trans International Airlines, the first named defendant in this action. . 1964 Can.T.S. No. 29; 1967 N.Z.T.S. No. 11. . It is undisputed that the action is between a foreign citizen and a domestic corporation. . This is the Hague Protocol version of Article 26(2). See 478 U.N.T.S. at 385. The original version of Article 26(2), still in effect in the United States, requires notice of complaint within seven days of receipt of the goods. 49 Stat. at 3020. . Article 18(1), in English translation states: The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air. 49 Stat. at 3019. The final clause of the subsection uses the word “damage” to refer to the destruction, loss and damage mentioned in the preceding clause. This does not mean, however, that the term “damage” used in Article 26(2) also encompasses destruction or loss. The confusion arises from the translation of the French text, which is the sole authentic text. See Article 36. The French text reads: Le transporteur est responsable du dom-mage survenu en cas de destruction, perte ou avarie de bagages enregistrés ou de marchan-dises lorsque l’événement qui a causé le dom-mage s’est produit pendant le transport aér-ien. 49 Stat. at 3005. The English version uses one term — “damage” — to translate two different French terms —“dommage” and “avarie.” The “damage” referred to in the final clause of Article 18(1) is “dommage,” while the “damage” referred to in the preceding clause of Article 18(1) and in Article 26(2) is “avarie.” Since Article 18(1) distinguishes among “destruction, perte ou avarie,” — “destruction, loss, or damage” — Article 26(2), which mentions only “avarie,” may exclude destruction and loss. Cf. P. Robert, Dictionnaire Alphabétique et Analogique de la Langue Française, s.v. “avarie.” (1970). . One case has recognized the connection between destruction and actual knowledge by holding that Article 26(2) requires complaint even for destroyed goods if the destruction is not obvious enough to give notice to the carrier. American Breeders Service v. KLM Royal Dutch Airlines, 17 Av.Cas. (CCH) 17,103 (N.Y.Sup.Ct.1982). 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:
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. UNITED STATES v. ASH No. 71-1255. Argued January 10, 1973 — Decided June 21, 1973 Blackmust, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, and RehNquist, JJ., joined. Stewart, J., filed an opinion concurring in the judgment, post, p. 321. BrenvnaN, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 326. Edward R. Korman argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Petersen, and Jerome M. Feit. Sherman L. Cohn, by appointment of the Court, 408 U. S. 942, argued the cause and filed a brief for respondent. Mr. Justice Blackmun delivered the opinion of the Court. In this case the Court is called upon to decide whether the Sixth Amendment grants an accused the right to have counsel present whenever the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. The United States Court of Appeals for the District of Columbia Circuit, sitting en banc, held, by a 5-to-4 vote, that the accused possesses this right to counsel. 149 U. S. App. D. C. 1, 461 F. 2d 92 (1972). The court's holding is inconsistent with decisions of the courts of appeals of nine other circuits. We granted certiorari to resolve the conflict and to decide this important constitutional question. 407 U. S. 909 (1972). We reverse and remand. I On the morning of August 26, 1965, a man with a stocking mask entered a bank in Washington, D. C., and began waving a pistol. He ordered an employee to hang up the telephone and instructed all others present not to move. Seconds later a second man, also wearing a stocking mask, entered the bank, scooped up money from tellers’ drawers into a bag, and left. The gunman followed, and both men escaped through an alley. The robbery lasted three or four minutes. A Government informer, Clarence McFarland, told authorities that he had discussed the robbery with Charles J. Ash, Jr., the respondent here. Acting on this information, an FBI agent, in February 1966, showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses. All four made uncertain identifications of Ash’s picture. At this time Ash was not in custody and had not been charged. On April 1, 1966, an indictment was returned charging Ash and a co-defendant, John L. Bailey, in five counts related to this bank robbery, in violation of D. C. Code Ann. § 22-2901 and 18 U. S. C. §2113 (a). Trial was finally set for May 1968, almost three years after the crime. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. This post-indictment identification provides the basis for respondent Ash’s claim that he was denied the right to counsel at a “critical stage” of the prosecution. No motion for severance was made, and Ash and Bailey were tried jointly. The trial judge held a hearing on the suggestive nature of the pretrial photographic displays. The judge did not make a clear ruling on suggestive nature, but held that the Government had demonstrated by “clear and convincing” evidence that in-court identifications would be “based on observation of the suspect other than the intervening observation.” App. 63-64. At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were certain of their identifications. None of these made an in-court identification of Bailey. The fourth witness, who had been in a car outside the bank and who had seen the fleeing robbers after they had removed their masks, made positive in-court identifications of both Ash and Bailey. Bailey’s counsel then sought to impeach this in-court identification by calling the FBI agent who had shown the color photographs to the witnesses immediately before trial. Bailey’s counsel demonstrated that the witness who had identified Bailey in court had failed to identify a color photograph of Bailey. During the course of the examination, Bailey’s counsel also, before the jury, brought out the fact that this witness had selected another man as one of the robbers. At this point the prosecutor became concerned that the jury might believe that the witness had selected a third person when, in fact, the witness had selected a photograph of Ash. After a conference at the bench, the trial judge ruled that all five color photographs would be admitted into evidence. The Court of Appeals held that this constituted the introduction of a post-indictment identification at the prosecutor’s request and over the objection of defense counsel. McFarland testified as a Government witness. He said he had discussed plans for the robbery with Ash before the event and, later, had discussed the results of the robbery with Ash in the presence of Bailey. McFarland was shown to possess an extensive criminal record and a history as an informer. The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his motion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years. The five-member majority of the Court of Appeals held that Ash’s right to counsel, guaranteed by the Sixth Amendment, was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May 1968 before the trial. The majority relied on this Court’s lineup cases, United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), and on Stovall v. Denno, 388 U. S. 293 (1967). The majority did not reach the issue of suggestiveness; their opinion implies, however, that they would order a remand for additional findings by the District Court. 149 U. S. App. D. C., at 7, 461 F. 2d, at 98. The majority refrained from deciding whether the in-court identifications could have independent bases, id., at 14-15 and nn. 20, 21, 461 F. 2d, at 105-106 and nn. 20, 21, but-expressed doubt that the identifications at the trial had independent origins. Dissenting opinions, joined by four judges, disagreed with the decision of the majority that the photographic identification was a "critical stage” requiring counsel, and criticized the majority’s suggestion that the in-court identifications were tainted by defects in the photographic identifications. Id., at 14-43, 461 F. 2d, at 106-134. II The Court of Appeals relied exclusively on that portion of the Sixth Amendment providing, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The right to counsel in Anglo-American law has a rich historical heritage, and this Court has regularly drawn on that history in construing the counsel guarantee of the Sixth Amendment. We re-examine that history in an effort to determine the relationship between the purposes of the Sixth Amendment guarantee and the risks of a photographic identification. In Powell v. Alabama, 287 U. S. 45, 60-66 (1932), the Court discussed the English common-law rule that severely limited the right of a person accused of a felony to consult with counsel at trial. The Court examined colonial constitutions and statutes and noted that “in at least twelve of the thirteen colonies the rule of the English common law, in the respect now under consideration, had been definitely rejected and the right to counsel fully recognized in all criminal prosecutions, save that in one or two instances the right was limited to capital offenses or to the more serious crimes.” Id., at 64-65. The Sixth Amendment counsel guarantee, thus, was derived from colonial statutes and constitutional provisions designed to reject the English common-law rule. Apparently several concerns contributed to this rejection at the very time when countless other aspects of the common law were being imported. One consideration was the inherent irrationality of the English limitation. Since the rule was limited to felony proceedings, the result, absurd and illogical, was that an accused misdemeanant could rely fully on counsel, but the accused felon, in theory at least, could consult counsel only on legal questions that the accused proposed to the court. See Powell v. Alabama, 287 U. S., at 60. English writers were appropriately critical of this inconsistency. See, for example, 4 W. Blackstone, Commentaries *355. A concern of more lasting importance was the recognition and awareness that an unaided layman had little skill in arguing the law or in coping with an intricate procedural system. The function of counsel as a guide through complex legal technicalities long has been recognized by this Court. Mr. Justice Sutherland’s well-known observations in Powell bear repeating here: “Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” 287 U. S., at 69. The Court frequently has interpreted the Sixth Amendment to assure that the “guiding hand of counsel” is available to those in need of its assistance. See, for example, Gideon v. Wainwright, 372 U. S. 335, 344-345 (1963), and Argersinger v. Hamlin, 407 U. S. 25, 31 (1972). Another factor contributing to the colonial recognition of the accused’s right to counsel was the adoption of the institution of the public prosecutor from the Continental inquisitorial system. One commentator has explained the effect of this development: “'[Ejarly in the eighteenth century the American system of judicial administration adopted an institution which was (and to some extent still is) unknown in England: while rejecting the fundamental juristic concepts upon which continental Europe’s inquisitorial system of criminal procedure is predicated, the colonies borrowed one of its institutions, the public prosecutor, and grafted it upon the body of English (accusatorial) procedure embodied in the common law. Presumably, this innovation was brought about by the lack of lawyers, particularly in the newly settled regions, and by the increasing distances between the colonial capitals on the eastern seaboard and the ever-receding western frontier. Its result was that, at a time when virtually all but treason trials in England were still in the nature of suits between private parties, the accused in the colonies faced a government official whose specific function it was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries, and, last but not least, the personnel of the court.” E. Heller, The Sixth Amendment 20-21 (1951) (footnote omitted). Thus, an additional motivation for the American rule was a desire to minimize the imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official. Mr. Justice Black, writing for the Court in Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938), spoke of this equalizing effect of the Sixth Amendment’s counsel guarantee: “It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” This historical background suggests that the core purpose of the counsel guarantee was to assure “Assistance” at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor. Later developments have led this Court to recognize that “Assistance” would be less than meaningful if it were limited to the formal trial itself. This extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. In Wade, the Court explained the process of expanding the counsel guarantee to these confrontations: “When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to 'critical' stages of the proceedings.” 388 U. S., at 224 (footnote omitted). The Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself. Recent cases demonstrate the historical method of this expansion. In Hamilton v. Alabama, 368 U. S. 52 (1961), and in White v. Maryland, 373 U. S. 59 (1963), the accused was confronted with the procedural system and was required, with definite consequences, to enter a plea. In Massiah v. United States, 377 U. S. 201 (1964), the accused was confronted by prosecuting authorities who obtained, by ruse and in the absence of defense counsel, incriminating statements. In Coleman v. Alabama, 399 U. S. 1 (1970), the accused was confronted by his adversary at a “critical stage” preliminary hearing at which the uncounseled accused could not hope to obtain so much benefit as could his skilled adversary. The analogy between the unrepresented accused at the pretrial confrontation and the unrepresented defendant at trial, implicit in the cases mentioned above, was explicitly drawn in Wade: “The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — ‘that's the man.' ” 388 U. S., at 235-236. Throughout this expansion of the counsel guarantee to trial-like confrontations, the function of the lawyer has remained essentially the same as his function at trial. In all cases considered by the Court, counsel has continued to act as a spokesman for, or advisor to, the accused. The accused’s right to the “Assistance of Counsel” has meant just that, namely, the right of the accused to have counsel acting as his assistant. In Hamilton and White, for example, the Court envisioned the lawyer as advising the accused on available defenses in order to allow him to plead intelligently. 368 U. S., at 54-55; 373 U. S., at 60. In Massiah counsel could have advised his client on the benefits of the Fifth Amendment and could have sheltered him from the overreaching of the prosecution. 377 U. S., at 205. Cf. Miranda v. Arizona, 384 U. S. 436, 466 (1966). In Coleman the skill of the lawyer in examining witnesses, probing for evidence, and making legal arguments was relied upon by the Court to demonstrate that, in the light of the purpose of the preliminary hearing under Alabama law, the accused required “Assistance” at that hearing. 399 U. S., at 9. The function of counsel in rendering “Assistance” continued at the lineup under consideration in Wade and its companion cases. Although the accused was not confronted there with legal questions, the lineup offered opportunities for prosecuting authorities to take advantage of the accused. Counsel was seen by the Court as being more sensitive to, and aware of, suggestive influences than the accused himself, and as better able to reconstruct the events at trial. Counsel present at lineup would be able to remove disabilities of the accused in precisely the same fashion that counsel compensated for the disabilities of the layman at trial. Thus, the Court mentioned that the accused’s memory might be dimmed by “emotional tension,” that the accused’s credibility at trial would be diminished by his status as defendant, and that the accused might be unable to present his version effectively without giving up his privilege against compulsory self-incrimination. United States v. Wade, 388 U. S., at 230-231. It was in order to compensate for these deficiencies that the Court found the need for the assistance of counsel. This review of the history and expansion of the Sixth Amendment counsel guarantee demonstrates that the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary. Against the background of this traditional test, we now consider the opinion of the Court of Appeals. Ill Although the Court of Appeals’ majority recognized the argument that “a major purpose behind the right to counsel is to protect the defendant from errors that he himself might make if he appeared in court alone,” the court concluded that “other forms of prejudice,” mentioned and recognized in Wade, could also give rise to a right to counsel. 149 U. S. App. D. C., at 10, 461 F. 2d, at 101. These forms of prejudice were felt by the court to flow from the possibilities for mistaken identification inherent in the photographic display. We conclude that the dangers of mistaken identification, mentioned in Wade, were removed from context by the Court of Appeals and were incorrectly utilized as a sufficient basis for requiring counsel. Although Wade did discuss possibilities for suggestion and the difficulty for reconstructing suggestivity, this discussion occurred only after the Court had concluded that the lineup constituted a trial-like confrontation, requiring the “Assistance of Counsel” to preserve the adversary process by compensating for advantages of the prosecuting authorities. The above discussion of Wade has. shown that the traditional Sixth Amendment test easily allowed extension of counsel to a lineup. The similarity to trial was apparent, and counsel was needed , to render “Assistance” in counterbalancing any “overreaching” by the prosecution. After the Court in Wade held that a lineup constituted a trial-like confrontation requiring counsel, a more difficult issue remained in the case for consideration. The same changes in law enforcement that led to lineups and pretrial hearings also generated other events at which the accused was confronted by the prosecution. The Government had argued in Wade that if counsel was required at a lineup, the same forceful considerations would mandate counsel at other preparatory steps in the “gathering of the prosecution’s evidence,” such as, for particular example, the taking of fingerprints or blood samples. 388 U. S., at 227. The Court concluded that there were differences. Rather than distinguishing these situations from the lineup in terms of the need for counsel to assure an equal confrontation at the time, the Court recognized that there were times when the subsequent trial would cure a one-sided confrontation between prosecuting authorities and the uncounseled defendant. In other words, such stages were not “critical.” Referring to fingerprints, hair, clothing, and other blood samples, the Court explained: “Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts.” 388 U. S., at 227-228. The structure of Wade, viewed in light of the careful limitation of the Court’s language to “confrontations,” makes it clear that lack of scientific precision and inability to reconstruct an event are not the tests for requiring counsel in the first instance. These are, instead, the tests to determine whether confrontation with counsel at trial can serve as a substitute for counsel at the pretrial confrontation. If accurate reconstruction is possible, the risks inherent in any confrontation still remain, but the opportunity to cure defects at trial causes the confrontation to cease to be “critical.” The opinion of the Court even indicated that changes in procedure might cause a lineup to cease to be a “critical” confrontation: “Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as ‘critical.’ ” 388 U. S., at 239 (footnote omitted). See, however, id., at 262 n. (opinion of Fortas, J.). The Court of Appeals considered its analysis complete after it decided that a photographic display lacks scientific precision and ease of accurate reconstruction at trial. That analysis, under Wade, however, merely carries one to the point where one must establish that the trial itself can provide no substitute for counsel if a pretrial confrontation is conducted in the absence of counsel. Judge Friendly, writing for the Second Circuit in United States v. Bennett, 409 F. 2d 888 (1969), recognized that the “criticality” test of Wade, if applied outside the confrontation context, would result in drastic expansion of the right to counsel: “None of the classical analyses of the assistance to be given by counsel, Justice Sutherland’s in Powell v. Alabama . . . and Justice Black’s in Johnson v. Zerbst . . . and Gideon v. Wainwright . . . suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant’s absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered. Many other aspects of the prosecution’s interviews with a victim or a witness to a crime afford just as much opportunity for undue suggestion as the display of photographs; so, too, do the defense’s interviews, notably with alibi witnesses.” Id., at 899-900. We now undertake the threshhold analysis that must be addressed. IV A substantial departure from the historical test would be necessary if the Sixth Amendment were interpreted to give Ash a right to counsel at the photographic identification in this case. Since the accused himself is not present at the time of the photographic display, and asserts no right to be present, Brief for Respondent 40, no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Similarly, the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation. Rather, the guarantee was used by the Court of Appeals to produce confrontation at an event that previously was not analogous to an adversary trial. Even if we were willing to view the counsel guarantee in broad terms as a generalized protection of the adversary process, we would be unwilling to go so far as to extend the right to a portion of the prosecutor’s trial-preparation interviews with witnesses. Although photography is relatively new, the interviewing of witnesses before trial is a procedure that predates the Sixth Amendment. In England in the 16th and 17th centuries counsel regularly interviewed witnesses before trial. 9 W. Holdsworth, History of English Law 226-228 (1926). The traditional counterbalance in the American adversary system for these interviews arises from the equal ability of defense counsel to seek and interview witnesses himself. That adversary mechanism remains as effective for a photographic display as for other parts of pretrial interviews. No greater limitations are placed on defense counsel in constructing displays, seeking witnesses, and conducting photographic identifications than those applicable to the prosecution. Selection of the picture of a person other than the accused, or the inability of a witness to make any selection, will be useful to the defense in precisely the same manner that the selection of a picture of the defendant would be useful to the prosecution. In this very case, for example, the initial tender of the photographic display was by Bailey’s counsel, who sought to demonstrate that the witness had failed to make a photographic identification. Although we do not suggest that equality of access to photographs removes all potential for abuse, it does remove any inequality in the adversary process itself and thereby fully satisfies the historical spirit of the Sixth Amendment’s counsel guarantee. The argument has been advanced that requiring counsel might compel the police to observe more scientific procedures or might encourage them to utilize corporeal rather than photographic displays. This Court has recognized that improved procedures can minimize the dangers of suggestion. Simmons v. United States, 390 U. S. 377, 386 n. 6 (1968). Commentators have also proposed more accurate techniques. Pretrial photographic identifications, however, are hardly unique in offering possibilities for the actions of the prosecutor unfairly to prejudice the accused. Evidence favorable to the accused may be withheld; testimony of witnesses may be manipulated; the results of laboratory tests may be contrived. In many ways the prosecutor, by accident or by design, may improperly subvert the trial. The primary safeguard against abuses of this kind is the ethical responsibility of the prosecutor, who, as so often has been said, may “strike hard blows” but not “foul ones.” Berger v. United States, 295 U. S. 78, 88 (1935); Brady v. Maryland, 373 U. S. 83, 87-88 (1963). If that safeguard fails, review remains available under due process standards. See Giglio v. United States, 405 U. S. 150 (1972); Mooney v. Holohan, 294 U. S. 103, 112 (1935); Miller v. Pate, 386 U. S. 1 (1967); Chambers v. Mississippi, 410 U. S. 284 (1973). These same safeguards apply to misuse of photographs. See Simmons v. United States, 390 U. S., at 384. We are not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required. We hold, then, that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. This holding requires reversal of the judgment of the Court of Appeals. Although respondent Ash has urged us to examine this photographic display under the due process standard enunciated in Simmons v. United States, 390 U. S., at 384, the Court of Appeals, expressing the view that additional findings would be necessary, refused to decide the issue. 149 U. S. App. D. C., at 7, 461 F. 2d, at 98. We decline to consider this question on this record in the first instance. It remains open, of course, on the Court of Appeals’ remand to the District Court. Reversed and remanded. “In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence.” United States v. Bennett, 409 F. 2d 888, 898-900 (CA2), cert. denied sub nom. Haywood v. United States, 396 U. S. 852 (1969); United States ex rel. Reed v. Anderson, 461 F. 2d 739 (CA3 1972) (en banc); United States v. Collins, 416 F. 2d 696 (CA4 1969), cert. denied, 396 U. S. 1025 (1970); United States v. Ballard, 423 F. 2d 127 (CA5 1970); United States v. Serio, 440 F. 2d 827, 829-830 (CA6 1971); United States v. Robinson, 406 F. 2d 64, 67 (CA7), cert. denied, 395 U. S. 926 (1969); United States v. Long, 449 F. 2d 288, 301-302 (CA8 1971), cert. denied, 405 U. S. 974 (1972); Allen v. Rhay, 431 F. 2d 1160, 1166-1167 (CA9 1970); McGee v. United States, 402 F. 2d 434, 436 (CA10 1968), cert. denied, 394 U. S. 908 (1969). The en banc decision of the Third Circuit in Anderson overruled in part a panel decision in United States v. Zeiler, 427 F. 2d 1305 (CA3 1970). The question has also produced conflicting decisions in state courts.. The majority view, as in the courts of appeals, rejects the claimed right'to counsel. See, e. g., McGhee v. State, 48 Ala. App. 330, 264 So. 2d 560 (Ala. Crim. App. 1972); State v. Yehling, 108 Ariz. 323, 498 P. 2d 145 (1972); People v. Lawrence, 4 Cal. 3d 273, 481 P. 2d 212 (1971), cert. denied, 407 U. S. 909 (1972); Reed v. State, - Del. -, 281 A. 2d 142 (1971); People v. Holiday, 47 Ill. 2d 300, 265 N. E. 2d 634 (1970); Baldwin v. State, 5 Md. App. 22, 245 A. 2d 98 (1968) (dicta); Commonwealth v. Ross, - Mass. -, 282 N. E. 2d 70 (1972), vacated on other grounds and remanded, 410 U. S. 901 (1973); Stevenson v. State, 244 So. 2d 30 (Miss. 1971); State v. Brookins, 468 S. W. 2d 42 (Mo. 1971) (dicta); People v. Coles, 34 App. Div. 2d 1051, 312 N. Y. S. 2d 621 (1970) (dicta); State v. Moss, 187 Neb. 391, 191 N. W. 2d 543 (1971); Drewry v. Commonwealth, 213 Va. 186, 191 S. E. 2d 178 (1972); State v. Nettles, 81 Wash. 2d 205, 500 P. 2d 752 (1972); Kain v. State, 48 Wis. 2d 212, 179 N. W. 2d 777 (1970). Cf. State v. Accor, 277 N. C. 65, 175 S. E. 2d 583 (1970). Several state courts, however, have granted a right to counsel at photographic identifications. See, e. g., Cox v. State, 219 So. 2d 762 (Fla. App. 1969) (video tapes); People v. Anderson, 389 Mich. 155, 205 N. W. 2d 461 (1973); Thompson v. State, 85 Nev. 134, 451 P. 2d 704, cert. denied, 396 U. S. 893 (1969); Commonwealth v. Whiting, 439 Pa. 205, 266 A. 2d 738, cert. denied, 400 U. S. 919 (1970). Respondent Ash does not assert a right to counsel at the black- and-white photographic display in February 1966 because he recognizes that Kirby v. Illinois, 406 U. S. 682 (1972), forecloses application of the Sixth Amendment to events before the initiation of adversary criminal proceedings. Tr. of Oral Arg. 21-22; Brief for Respondent 32 n. 21. At this hearing both the black-and-white and color photographs were introduced as exhibits. App. 44. The FBI agents who conducted the pretrial displays were called as witnesses and were cross-examined fully. App. 10, 28. Two of the four witnesses who were expected to make in-court identifications also testified and were cross-examined concerning the photographic identifications. App. 55, 65. The majority of the Court of Appeals concluded that Ash’s counsel properly had preserved his objection to introduction of the photographs. 149 U. S. App. D. C., at 6 n. 6, 461 F. 2d, at 97 n. 6. Although the contrary view of the dissenting judges has been noted here by the Government, the majority 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:
sc_decisiontype	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. ZANT, WARDEN v. STEPHENS No. 81-89. Argued February 24, 1982 Question certified May 3, 1982 Decided June 22, 1983 Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and O’Connor, JJ., joined. White, J., filed an opinion concurring in part and concurring in the judgment, post, p. 891. REHNQUIST, J., filed an opinion concurring in the judgment, post, p. 893. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 904. After the Georgia Supreme Court’s response to the certified question, supplemental briefs were filed by Michael J. Bowers, Attorney General of Georgia, William B. Hill, Jr., Senior Assistant Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, and Marion 0. Gordon, First Assistant Attorney General, for petitioner, and by James C. Bonner, Jr., Jack Greenberg, James M. Nabrit III, Joel Berger, John Charles Boger, Deborah Fins, and Anthony G. Amsterdam for respondent. Justice Stevens delivered the opinion of the Court. The question presented is whether respondent’s death penalty must be vacated because one of the three statutory aggravating circumstances found by the jury was subsequently held to be invalid by the Supreme Court of Georgia, although the other two aggravating circumstances were specifically upheld. The answer depends on the function of the jury’s finding of an aggravating circumstance under Georgia’s capital sentencing statute, and on the reasons that the aggravating circumstance at issue in this particular case was found to be invalid. In January 1975 a jury in Bleckley County, Georgia, convicted respondent of the murder of Roy Asbell and sentenced him to death. The evidence received at the guilt phase of his trial, which included his confessions and the testimony of a number of witnesses, described these events: On August 19, 1974, while respondent was serving sentences for several burglary convictions and was also awaiting trial for escape, he again escaped from the Houston County Jail. In the next two days he committed two auto thefts, an armed robbery, and several burglaries. On August 21st, Roy Asbell interrupted respondent and an accomplice in the course of burglarizing the home of Asbell’s son in Twiggs County. Respondent beat Asbell, robbed him, and, with the aid of the accomplice, drove him in his own vehicle a short distance into Bleckley County. There they killed Asbell by shooting him twice through the ear at point blank range. At the sentencing phase of the trial the State relied on the evidence adduced at the guilt phase and also established that respondent’s prior criminal record included convictions on two counts of armed robbery, five counts of burglary, and one count of murder. Respondent testified that he was “sorry” and knew he deserved to be punished, that his accomplice actually shot Asbell, and that they had both been “pretty high” on drugs. The State requested the jury to impose the death penalty and argued that the evidence established the aggravating circumstances identified in subparagraphs (b)(1), (b)(7), and (b)(9) of the Georgia capital sentencing statute. The trial judge instructed the jury that under the law of Georgia “every person [found] guilty of Murder shall be punished by death or by imprisonment for life, the sentence to be fixed by the jury trying the case.” App. 18. He explained that the jury was authorized to consider all of the evidence received during the trial as well as all facts and circumstances presented in extenuation, mitigation, or aggravation during the sentencing proceeding. He then stated: “You may consider any of the following statutory aggravating circumstances which you find are supported by the evidence. One, the offense of Murder was committed by a person with a prior record of conviction for a Capital felony, or the offense of Murder was committed by a person who has a substantial history of serious as-saultive criminal convictions. Two, the offense of Murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim. Three, the offense of Murder was committed by a person who has escaped from the lawful custody of a peace officer or place of lawful confinement. These possible statutory circumstances are stated in writing and will be out with you during your deliberations on the sentencing phase of this case. They are in writing here, and I shall send this out with you. If the jury verdict on sentencing fixes punishment at death by electrocution you shall designate in writing, signed by the foreman, the aggravating circumstances or circumstance which you found to have been proven beyond a reasonable doubt. Unless one or more of these statutory aggravating circumstances are proven beyond a reasonable doubt you will not be authorized to fix punishment at death.” The jury followed the court’s instruction and imposed the death penalty. It designated in writing that it had found the aggravating circumstances described as “One” and “Three” in the judge’s instruction. It made no such finding with respect to “Two.” It should be noted that the jury’s finding under “One” encompassed both alternatives identified in the judge’s instructions and in subsection (b)(1) of the statute— that respondent had a prior conviction of a capital felony and that he had a substantial history of serious assaultive convictions. These two alternatives and the finding that the murder was committed by an escapee are described by the parties as the three aggravating circumstances found by the jury, but they may also be viewed as two statutory aggravating circumstances, one of which rested on two grounds. In his direct appeal to the Supreme Court of Georgia respondent did not challenge the sufficiency of the evidence supporting the aggravating circumstances found by the jury. Nor did he argue that there was any infirmity in the statutory definition of those circumstances. While his appeal was pending, however, the Georgia Supreme Court held in Arnold v. State, 236 Ga. 584, 539-542, 224 S. E. 2d 386, 391-392 (1976), that the aggravating circumstance described in the second clause of (b)(1) — “a substantial history of serious assaultive criminal convictions” — was unconstitutionally vague. Because such a finding had been made by the jury in this case, the Georgia Supreme Court, on its own motion, considered whether it impaired respondent’s death sentence. It concluded that the two other aggravating circumstances adequately supported the sentence. Stephens v. State, 287 Ga. 259, 261-262, 227 S. E. 2d 261, 263, cert. denied, 429 U. S. 986 (1976). The state court reaffirmed this conclusion in a subsequent appeal from the denial of state habeas corpus relief. Stephens v. Hopper, 241 Ga. 596, 603-604, 247 S. E. 2d 92, 97-98, cert. denied, 439 U. S. 991 (1978). After the Federal District Court had denied a petition for habeas corpus, the United States Court of Appeals for the Fifth Circuit considered two constitutional challenges to respondent’s death sentence. 631 F. 2d 397 (1980). That court first rejected his contention that the jury was not adequately instructed that it was permitted to impose life imprisonment rather than the death penalty even if it found an aggravating circumstance. The court then held, however, that the death penalty was invalid because one of the aggravating circumstances found by the jury was later held unconstitutional. The Court of Appeals gave two reasons for that conclusion. First, it read Stromberg v. California, 283 U. S. 359 (1931), as requiring that a jury verdict based on multiple grounds be set aside if the reviewing court cannot ascertain whether the jury relied on an unconstitutional ground. The court concluded: “It is impossible for a reviewing court to determine satisfactorily that the verdict in this case was not decisively affected by an unconstitutional statutory aggravating circumstance. The jury had the authority to return a life sentence even if it found statutory aggravating circumstances. It is possible that even if the jurors believed that the other aggravating circumstances were established, they would not have recommended the death penalty but for the decision that the offense was committed by one having a substantial history of serious assaultive criminal convictions, an invalid ground.” 631 F. 2d, at 406. Second, it believed that the presence of the invalid circumstance “made it possible for the jury to consider several prior convictions of [respondent] which otherwise would not have been before it.” Ibid. In a petition for rehearing, the State pointed out that the evidence of respondent’s prior convictions would have been admissible at the sentencing hearing even if it had not relied on the invalid circumstance. The Court of Appeals then modified its opinion by deleting its reference to the possibility that the jury had relied on inadmissible evidence. 648 F. 2d 446 (1981). It maintained, however, that the reference in the instructions to the invalid circumstance “may have unduly directed the jury’s attention to his prior convictions.” Ibid. The court concluded: “It cannot be determined with the degree of certainty required in capital cases that the instruction did not make a critical difference in the jury’s decision to impose the death penalty.” Ibid. We granted Warden Zant’s petition for certiorari, 454 U. S. 814 (1981). The briefs on the merits revealed that different state appellate courts have reached varying conclusions concerning the significance of the invalidation of one of multiple aggravating circumstances considered by a jury in a capital case. Although the Georgia Supreme Court had consistently stated that the failure of one aggravating circumstance does not invalidate a death sentence that is otherwise adequately supported, we concluded that an exposition of the state-law premises for that view would assist in framing the precise federal constitutional issues presented by the Court of Appeals' holding. We therefore sought guidance from the Georgia Supreme Court pursuant to Georgia’s statutory certification procedure. Ga. Code §24-4536 (Supp. 1980). Zant v. Stephens, 456 U. S. 410 (1982). In its response to our certified question, the Georgia Supreme Court first distinguished Stromberg as a case in which the jury might have relied exclusively on a single invalid ground, noting that the jury in this case had expressly relied on valid and sufficient grounds for its verdict. The court then explained the state-law premises for its treatment of aggravating circumstances by analogizing the entire body of Georgia law governing homicides to a pyramid. It explained: “All cases of homicide of every category are contained within the pyramid. The consequences flowing to the perpetrator increase in severity as the cases proceed from the base to the apex, with the death penalty applying only to those few cases which are contained in the space just beneath the apex. To reach that category a case must pass through three planes of division between the base and the apex. “The first plane of division above the base separates from all homicide cases those which fall into the category of murder. This plane is established by the legislature in statutes defining terms such as murder, voluntary manslaughter, involuntary manslaughter, and justifiable homicide. In deciding whether a given case falls above or below this plane, the function of the trier of facts is limited to finding facts. The plane remains fixed unless moved by legislative act. “The second plane separates from all murder cases those in which the penalty of death is a possible punishment. This plane is established by statutory definitions of aggravating circumstances. The function of the factfinder is again limited to making a determination of whether certain facts have been established. Except where there is treason or aircraft hijacking, a given case may not move above this second plane unless at least one statutory aggravating circumstance exists. Code Ann. §27-2534.1(c). “The third plane separates, from all cases in which a penalty of death may be imposed, those cases in which it shall be imposed. There is an absolute discretion in the factfinder to place any given case below the plane and not impose death. The plane itself is established by the factfinder. In establishing the plane, the factfinder considers all evidence in extenuation, mitigation and aggravation of punishment. Code Ann. §27-2503 and § 27-2534.1. There is a final limitation on the imposition of the death penalty resting in the automatic appeal procedure: This court determines whether the penalty of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether the statutory aggravating circumstances are supported by the evidence; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. Code Ann. § 27-2587. Performance of this function may cause this court to remove a case from the death penalty category but can never have the opposite result. “The purpose of the statutory aggravating circumstances is to limit to a large degree, but not completely, the factfinder’s discretion. Unless at least one of the ten statutory aggravating circumstances exists, the death penalty may not be imposed in any event. If there exists at least one statutory aggravating circumstance, the death penalty may be imposed but the factfinder has a discretion to decline to do so without giving any reason. Waters v. State, 248 Ga. 355, 369, 283 S. E. 2d 238 (1981); Hawes v. State, 240 Ga. 327, 334, 240 S. E. 2d 833 (1977); Fleming v. State, 240 Ga. 142, 240 S. E. 2d 37 1977). In making the decision as to the penalty, the factfinder takes into consideration all circumstances before it from both the guilt-innocence and the sentence phases of the trial. These circumstances relate both to the offense and the defendant. “A case may not pass the second plane into that area in which the death penalty is authorized unless at least one statutory aggravating circumstance is found. However, this plane is passed regardless of the number of statutory aggravating circumstances found, so long as there is at least one. Once beyond this plane, the case enters the area of the factfinder’s discretion, in which all the facts and circumstances of the case determine, in terms of our metaphor, whether or not the case passes the third plane and into the area in which the death penalty is imposed.” 250 Ga. 97, 99-100, 297 S. E. 2d 1, 3-4 (1982). The Georgia Supreme Court then explained why the failure of the second ground of the (b)(1) statutory aggravating circumstance did not invalidate respondent’s death sentence. It first noted that the evidence of respondent’s prior convictions had been properly received and could properly have been considered by the jury. The court expressed the opinion that the mere fact that such evidence was improperly designated “statutory” had an “inconsequential impact” on the jury’s death penalty decision. Finally, the court noted that a different result might be reached if the failed circumstance had been supported by evidence not otherwise admissible or if there was reason to believe that, because of the failure, the sentence was imposed under the influence of an arbitrary factor. Id., at 100, 297 S. E. 2d, at 4. We are indebted to the Georgia Supreme Court for its helpful response to our certified question. That response makes it clear that we must confront three separate issues in order to decide this case. First, does the limited purpose served by the finding of a statutory aggravating circumstance in Georgia allow the jury a measure of discretion that is forbidden by Furman v. Georgia, 408 U. S. 238 (1972), and subsequent cases? Second, has the rule of Stromberg v. California, 283 U. S. 359 (1931), been violated? Third, in this case, even though respondent’s prior criminal record was properly admitted, does the possibility that the reference to the invalid statutory aggravating circumstance in the judge’s instruction affected the jury’s deliberations require that the death sentence be set aside? We discuss these issues in turn. I In Georgia, unlike some other States, the jury is not instructed to give any special weight to any aggravating circumstance, to consider multiple aggravating circumstances any more significant than a single such circumstance, or to balance aggravating against mitigating circumstances pursuant to any special standard. Thus, in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty. For this reason, respondent argues that Georgia’s statutory scheme is invalid under the holding in Furman v. Georgia. A fair statement of the consensus expressed by the Court in Furman is that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U. S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). After thus summarizing the central mandate of Furman, the joint opinion in Gregg set forth a general exposition of sentencing procedures that would satisfy the concerns of Furman. 428 U. S., at 189-195. But it expressly stated: “We do not intend to suggest that only the above-described procedures would be permissible under Fur-man or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Fur-man, for each distinct system must be examined on an individual basis.” Id., at 195. The opinion then turned to specific consideration of the constitutionality of Georgia’s capital sentencing procedures. Id., at 196-207. Georgia’s scheme includes two important features which the joint opinion described in its general discussion of sentencing procedures that would guide and channel the exercise of discretion. Georgia has a bifurcated procedure, see id., at 190-191, and its statute also mandates meaningful appellate review of every death sentence, see id., at 195. The statute does not, however, follow the Model Penal Code’s recommendation that the jury’s discretion in weighing aggravating and mitigating circumstances against each other should be governed by specific standards. See id., at 193. Instead, as the Georgia Supreme Court has unambiguously advised us, the aggravating circumstance merely performs the function of narrowing the category of persons convicted of murder who are eligible for the death penalty. Respondent argues that the mandate of Furman is violated by a scheme that permits the jury to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty by statute. But that argument could not be accepted without overruling our specific holding in Gregg. For the Court approved Georgia’s capital sentencing statute even though it clearly did not channel the jury’s discretion by enunciating specific standards to guide the jury’s consideration of aggravating and mitigating circumstances. The approval of Georgia’s capital sentencing procedure rested primarily on two features of the scheme: that the jury was required to find at least one valid statutory aggravating circumstance and to identify it in writing, and that the State Supreme Court reviewed the record of every death penalty proceeding to determine whether the sentence was arbitrary or disproportionate. These elements, the opinion concluded, adequately protected against the wanton and freakish imposition of the death penalty. This conclusion rested, of course, on the fundamental requirement that each statutory aggravating circumstance must satisfy a constitutional standard derived from the principles of Furman itself. For a system “could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” 428 U. S., at 195, n. 46. To avoid this constitutional flaw, an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. Thus in Godfrey v. Georgia, 446 U. S. 420 (1980), the Court struck down an aggravating circumstance that failed to narrow the class of persons eligible for the death penalty. Justice Stewart’s opinion for the plurality concluded that the aggravating circumstance described in subsection (b)(7) of the Georgia statute, as construed by the Georgia Supreme Court, failed to create any “inherent restraint on the arbitrary and capricious infliction of the death sentence,” because a person of ordinary sensibility could find that almost every murder fit the stated criteria. Id., at 428-429. Moreover, the facts of the case itself did not distinguish the murder from any other murder. The plurality concluded that there was “no principled way to distinguish this case, in which the death penalty was imposed, from the many in which it was not.” Id., at 433. Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime. See Eddings v. Oklahoma, 455 U. S. 104, 110-112 (1982); Lockett v. Ohio, 438 U. S. 586, 601-605 (1978) (plurality opinion); Roberts (Harry) v. Louisiana, 431 U. S. 633, 636-637 (1977); Gregg, 428 U. S., at 197 (opinion of Stewart, Powell, and Stevens, JJ.); Proffitt v. Florida, 428 U. S., at 251-252 (opinion of Stewart, Powell, and Stevens, JJ.); Woodson v. North Carolina, 428 U. S. 280, 303-304 (1976) (plurality opinion). The Georgia scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage. We therefore remain convinced, as we were in 1976, that the structure of the statute is constitutional. Moreover, the narrowing function has been properly achieved in this case by the two valid aggravating circumstances upheld by the Georgia Supreme Court — that respondent had escaped from lawful confinement, and that he had a prior record of conviction for a capital felony. These two findings adequately differentiate this case in an objective, evenhanded, and substantively rational way from the many Georgia murder cases in which the death penalty may not be imposed. Moreover, the Georgia Supreme Court in this case reviewed the death sentence to determine whether it was arbitrary, excessive, or disproportionate. Thus the absence of legislative or court-imposed standards to govern the jury in weighing the significance of either or both of those aggravating circumstances does not render the Georgia capital sentencing statute invalid as applied in this case. II Respondent contends that under the rule of Stromberg v. California, 283 U. S. 359 (1931), and subsequent cases, the invalidity of one of the statutory aggravating circumstances underlying the jury’s sentencing verdict requires that its entire death sentence be set aside. In order to evaluate this contention, it is necessary to identify two related but different rules that have their source in the Stromberg case. In Stromberg, a member of the Communist Party was convicted of displaying a red flag in violation of the California Penal Code. The California statute prohibited such a display (1) as a “sign, symbol or emblem” of opposition to organized government; (2) as an invitation or stimulus to anarchistic action; or (3) as an aid to seditious propaganda. This Court held that the first clause of the statute was repugnant to the Federal Constitution and found it unnecessary to pass on the validity of the other two clauses because the jury’s guilty verdict might have rested exclusively on a conclusion that Stromberg had violated the first. The Court explained: “The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause.” Id., at 367-368. “The first clause of the statute being invalid upon its face, the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside.” Id., at 369-370. One rule derived from the Stromberg case is that a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground. The cases in which this rule has been applied all involved general verdicts based on a record that left the reviewing court uncertain as to the actual ground on which the jury’s decision rested. See, e. g., Williams v. North Carolina, 317 U. S. 287, 292 (1942); Cramer v. United States, 325 U. S. 1, 36, n. 45 (1945); Terminiello v. Chicago, 337 U. S. 1, 5-6 (1949); Yates v. United States, 354 U. S. 298, 311-312 (1957). This rule does not require that respondent’s death sentence be vacated, because the jury did not merely return a general verdict stating that it had found at least one aggravating circumstance. The jury expressly found aggravating circumstances that were valid and legally sufficient to support the death penalty. The second rule derived from the Stromberg case is illustrated by Thomas v. Collins, 323 U. S. 516, 528-529 (1945), and Street v. New York, 394 U. S. 576, 586-590 (1969). In those cases we made clear that the reasoning of Stromberg encompasses a situation in which the general verdict on a single-count indictment or information rested on both a constitutional and an unconstitutional ground. In Thomas v. Collins, a labor organizer’s contempt citation was predicated both upon a speech expressing a general invitation to a group of nonunion workers, which the Court held to be constitutionally protected speech, and upon solicitation of a single individual. The Court declined to consider the State’s contention that the judgment could be sustained on the basis of the individual solicitation alone, for the record showed that the penalty had been imposed on account of both solicitations. “The judgment therefore must be affirmed as to both or as to neither.” 323 U. S., at 529. Similarly, in Street, the record indicated that petitioner’s conviction on a single-count indictment could have been based on his protected words as well as on his arguably unprotected conduct, flag burning. We stated that, “unless the record negates the possibility that the conviction was based on both alleged violations,” the judgment could not be affirmed unless both were valid. 394 U. S., at 588. The Court’s opinion in Street explained: “We take the rationale of Thomas to be that when a single-count indictment or information charges the commission of a crime by virtue of the defendant’s having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as ‘intertwined’ and have rested the conviction on both together. See 323 U. S., at 528-529, 540-541. There is no comparable hazard when the indictment or information is in several counts and the conviction is explicitly declared to rest on findings of guilt on certain of these counts, for in such instances there is positive evidence that the trier of fact considered each count on its own merits and separately from the others.” Ibid, (footnote omitted). The rationale of Thomas and Street applies to cases in which there is no uncertainty about the multiple grounds on which a general verdict rests. If, under the instructions to the jury, one way of committing the offense charged is to perform an act protected by the Constitution, the rule of these cases requires that a general verdict of guilt be set aside even if the defendant’s unprotected conduct, considered separately, would support the verdict. It is a difficult theoretical question whether the rule of Thomas and Street applies to the Georgia death penalty scheme. The jury’s imposition of the death sentence after finding more than one aggravating circumstance is not precisely the same as the jury’s verdict of guilty on a single-count indictment after finding that the defendant has engaged in more than one type of conduct encompassed by the same criminal charge, because a wider range of considerations enters into the former determination. On the other hand, it is also not precisely the same as the imposition of a single sentence of imprisonment after guilty verdicts on each of several separate counts in a multiple-count indictment, because the qualitatively different seritence of death is imposed only after a channeled sentencing procedure. We need not answer this question here. The second rule derived from Stromberg, embodied in Thomas and Street, applies only in cases in which the State has based its prosecution, at least in part, on a charge that constitutionally protected activity is unlawful. No such charge was made in respondent’s sentencing proceeding. In Stromberg, Thomas, and Street, the trial courts’ judgments rested, in part, on the fact that the defendant had been found guilty of expressive activity protected by the First Amendment. In contrast, in this case there is no suggestion that any of the aggravating circumstances involved any conduct protected by the First Amendment or by any other provision of the Constitution. Accordingly, even if the Strom-berg rules may sometimes apply in the sentencing context, a death sentence supported by at least one valid aggravating circumstance need not be set aside under the second Strom-berg rule simply because another aggravating circumstance is “invalid” in the sense that it is insufficient by itself to support the death penalty. In this case, the jury’s finding that respondent was a person who has a “substantial history of serious assaultive criminal convictions” did not provide a sufficient basis for imposing the death sentence. But it raised none of the concerns underlying the holdings in Stromberg, Thomas, and Street, for it did not treat constitutionally protected conduct as an aggravating circumstance. HH h-( f — < Two themes have been reiterated in our opimons discussing the procedures required by the Constitution in capital sentencing determinations. On the one hand, as the general comments in the Gregg joint opinion indicated, 428 U. S., at 192-195, and as The Chief Justice explicitly noted in Lockett v. Ohio, 438 U. S., at 605 (plurality opinion), there can be “no perfect procedure for deciding in which cases governmental authority should be used to impose death.” See also Beck v. Alabama, 447 U. S. 625, 638, n. 13 (1980). On the other hand, because there is a qualitative difference between death and any other permissible form of punishment, “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U. S., at 305. “It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U. S. 349, 358 (1977). Thus, although not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error. Respondent contends that the death sentence was impaired because the judge instructed the jury with regard to an invalid statutory aggravating circumstance, a “substantial history of serious assaultive criminal convictions,” for these instructions may have affected the jury’s deliberations. In analyzing this contention it is essential to keep in mind the sense in which that aggravating circumstance is “invalid.” It is not invalid because it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected. Georgia has not, for example, sought to characterize the display of a red flag, cf. Stromberg v. California, the expression of unpopular political views, cf. Terminiello v. Chicago, 337 U. S. 1 (1949), or the request for trial by jury, cf. United States v. Jackson, 390 U. S. 570 (1968), as an aggravating circumstance. Nor has Georgia attached the “aggravating” label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant, cf. Herndon v. Lowry, 301 U. S. 242 (1937), or to conduct that actually should militate in favor of a lesser penalty, such as perhaps the defendant’s mental illness. Cf. Miller v. Florida, 373 So. 2d 882, 885-886 (Fla. 1979). If the aggravating circumstance at issue in this case had been invalid for reasons such as these, due process of law would require that the jury’s decision to impose death be set aside. But the invalid aggravating circumstance found by the jury in this case was struck down in Arnold because the Georgia Supreme Court concluded that it fails to provide an adequate basis for distinguishing a murder case in which the death penalty may be imposed from those cases in which such a penalty may not be imposed. See nn. 5 and 16, supra. The underlying evidence is nevertheless fully admissible at the sentencing phase. As we noted in Gregg, 428 U. S., at 163, the Georgia statute provides that, at the sentencing hearing, the judge or jury “‘shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas: Provided, however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible.’” Ga. Code §27-2503 (1975) (emphasis supplied). We expressly rejected petitioner’s objection to the wide scope of evidence and argument allowed at presentence hearings. “We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
songer_r_bus	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 "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. WELSH V. AMERICAN SURETY CO. OF NEW YORK et al. No. 13265. United States Court of Appeals ‘ Fifth Circuit. Jan. 17, 1951. H. O. Williams, San Angelo, Tex., for appellant. Dorsey B. Hardeman, San Angelo, Tex., for appellees. Before HUTCHESON, Chief Judge, and McCORD, and BORAH, Circuit Judges. BORAH, Circuit Judge. Steve Welsh sued V. O. Earnest, sheriff of Crockett County, Texas, and American Surety Company of New York, surety on the sheriff’s official bond, to recover damages for personal injuries inflicted on Welsh during the course of and following his arrest. The action was dismissed on defendants’ motion and plaintiff has appealed. The only question here is whether the District Court had jurisdiction to hear and determine the complaint. Plaintiff relied upon diversity of citizenship and the requisite amount in controversy as the basis of jurisdiction. The narrow and specific point in issue is whether at the time of the commencement of this suit plaintiff was a bona fide citizen of the State of New Mexico, within the meaning of Title 28 U.S.C.A. § 1332(a) (1). The suit was brought on March 6, 1950, and it was alleged in the complaint that plaintiff was a resident and citizen of the State of New Mexico; and that defendant Earnest was a citizen of the State of Texas; and that defendant American Surety Company of New York was a New York corporation licensed to do business and doing business in Texas. In response to the complaint the defendants filed a motion to dismiss the action on the ground that the court was without jurisdiction because plaintiff is and has been for many years a bona fide citizen of the State of Texas. The court heard evidence om the motion and in its order dismissing the complaint for want of jurisdiction found, “that although plaintiff resides in the State of New Mexico * * * it has not been established by reasonably satisfactory evidence that plaintiff intends to reside permanently in New Mexico and that the evidence of diversity of citizenship of the plaintiff and defendant, V. O. Earnest, is insufficient to establish a ground for jurisdiction * * The findings are challenged on the ground that they are against the evidence and are clearly wrong. Plaintiff had been a resident of Texas. He contends that he ended his residence and citizenship there and established residence and citizenship in New Mexico in February, 1950, less than one month prior to the institution of the action. Now, it is elementary that, to effect a change of one’s legal domicile, two things are indispensable: First, residence in the new locality; and second, the intention to remain there. The change cannot be made, except facto ct animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be animus to change the prior domicile for another. Until the new one is acquired, the old one remains. Mitchell v. United States, 21 Wall. 350, 352, 22 L.Ed. 584; Sun Printing and Publishing Association v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 48 L.Ed. 1027. Plaintiff’s allegation of citizenship in New Mexico was not sufficient. When challenged as here, the burden rested on him to show by a preponderance of the evidence that he was a citizen of that State. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; Town of Lantana, Florida v. Hooper, 5 Cir., 102 F.2d 118. There was evidence in the record which fairly tended to prove these facts. Plaintiff lived in California for twenty-six years. In 1946 he moved to Ozona, Texas, and in the same year he married. During the years that followed he often declared that he intended to return to California and he informed his wife that he would remain in Ozona only during the lifetime of her sick and aged father. On December 28, 1949, his father-in-law died. After finishing up a job on which he was then working plaintiff went to a Mr. Couch and told him that he was leaving but doubted if he had sufficient money to take him to California and asked Couch if he would purchase his trailer for two hundred dollars. Couch did not have the money but he advised plaintiff to go to Hobbs, New Mexico where Couch’s nephew, a contractor, would assist plaintiff in securing employment, thereby enabling him to work his way back to California. Plaintiff arrived in Hobbs, New Mexico on February 3, 1950 and on the following day he secured employment. The testimony with regard to plaintiff’s intention is illuminating. Plaintiff testified that he decided to stay in New Mexico when he secured employment and “got the second chance to go to work.” It is the testimony of the witness Couch that plaintiff told him shortly before the hearing, which was on May 26, 1950, that “he liked Hobbs so well he believed he was going to make it his home.” And according to the wife’s version, plaintiff decided, after they were there just a short while, “that he believed he would stay at Hobbs, New Mexico, and make his home there.” The witness Cade testified that plaintiff told him that he was going to file suit in San Angelo, Texas, and that he had to move out of the State of Texas in order to file this suit in the Federal Court. Declarations of intention to establish residence in a particular locality are of course to be given full and fair consideration, but like other self serving declarations may lack persuasiveness or be negatived by other declarations and inconsistent acts. To bring about a domiciliary change there must be a conjunction, of physical presence and animus manendi in the new location. The question is always one of compound fact and law, and one which the trial judge, having an opportunity to hear the testimony, and observe the witnesses, is most competent to judge of their credibility and we are not warranted in setting aside his findings and conclusions unless clearly erroneous. We are satisfied that the court did not misapprehend the testimony and that its findings as to the weight of the evidence should be left undisturbed. Accordingly, the judgment of the District Court is affirmed. 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_applfrom	A	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). Leo WALTON, Plaintiff-Appellant, v. ARABIAN AMERICAN OIL COMPANY, Defendant-Appellee. No. 291, Docket 23987. United States Court of Appeals Second Circuit. Argued March 15, 1956. Decided May 15, 1956. O’Neill, Higgins & Latto, New York City, John V. Higgins, New York City, of counsel, for plaintiff-appellant. Reilly & Reilly, New York City, for defendant-appellee. Before FRANK, LUMBARD and WATERMAN, Circuit Judges. FRANK, Circuit Judge. Plaintiff is a citizen and resident of Arkansas, who, while temporarily in Saudi Arabia, was seriously injured when an automobile he was driving collided with a truck owned by defendant, driven by one of defendant's employees. Defendant is a corporation incorporated in Delaware, licensed to do business in New York, and engaged in extensive business activities in Saudi Arabia. Plaintiff’s complaint did not allege pertinent Saudi Arabian “law,” nor at the trial did he prove or offer to prove it. Defendant did not, in its answer, allege such “law,” and defendant did not prove or offer to prove it. There was evidence from which it might have been inferred, reasonably, that, under well-established New York decisions, defendant was negligent and therefore liable to plaintiff. The trial judge, saying he would not take judicial notice of Saudi-Arabian “law,” directed a verdict in favor of the defendant and gave judgment against the plaintiff. 1. As jurisdiction here rests on diversity of citizenship, we must apply the New York rules of conflict of laws. It is well settled by the New York decisions that the “substantive law” applicable to an alleged tort is the “law” of the place where the alleged tort occurred. See, e. g., Conklin v. Canadian-Colonial Airways, Inc., 266 N.Y. 244, 248, 194 N.E. 692. This is the federal doctrine; see, e. g., Slater v. Mexican National Railroad Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900. Cuba R. Co. v. Crosby, 222 U.S. 473, 32 S.Ct. 132, 56 L.Ed. 274. This doctrine is often said to be based on the motion that to hold otherwise would be to interfere with the authority of the foreign sovereign. It has been suggested that, where suit is brought in an American court by an American plaintiff against an American defendant, complaining of alleged tortious conduct by the defendant in a foreign country, and that conduct is tortious according to the rules of the forum, the court, in some circumstances, should apply the forum’s tort rules. See Morris, The Proper Law of a Tort, 64 Harv.L.Rev. (1951) 881, criticizing, inter alia, Slater v. Mexican National Railroad, 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900. There, and in 12 Modern L.Rev. (1949) 248, Morris decries, as “mechanical jurisprudence,” the invariable reference to the “law” of the place where the alleged tort happened. There may be much to Morris’ suggestion; and a court ■—particularly with reference to torts, where conduct in reliance on precedents is ordinarily absent—should not perpetuate a doctrine which, upon re-examination, shows up as unwise and unjust. Although in a diversity case a federal court must apply the “substantive” conflicts rules of the state in which the court sits, that duty perhaps does not require acceptance of state court decisions which are clearly obsolescent; see the concurring opinion of Mr. Justice Frankfurter in Bernhardt v. Polygraphic Co. Inc., 350 U.S. 198, 76 S.Ct. 273. But we see no signs that the New York decisions pertinent here are obsolescent. 2. The general federal rule is that the “law” of a foreign country is a fact which must be proved. However, under Fed.Rules Civ.Proc. rule 43(a), 28 U.S.C.A., a federal court must receive evidence if it is admissible according to the rules of evidence of the state in which the court sits. At first glance, then, it may seem that the judge erred in refusing to take judicial notice of Saudi Arabian “law” in the light of New York Civil Practice Act, § 344-a. In Siegelman v. Cunard White Star, 2 Cir., 221 F.2d 189, 196-197, applying that statute, we took judicial notice of English “law” which had been neither pleaded nor proved. Our decision, in that respect, has been criticized ; but it may be justified on the ground that an American court can easily comprehend, and therefore, under the statute, take judicial notice of, English decisions, like those of any state in the United States. However, where, as here, comprehension of foreign “law” is, to say the least, not easy, then, according to the somewhat narrow interpretation of the New York statute by the New York courts, a court “abuses” its discretion under that statute perhaps if it takes judicial notice of foreign “law” when it is not pleaded, and surely does so unless the party, who would otherwise have had the burden of proving that “law,” has in some way adequately assisted the court in judicially learning it. 3. Plaintiff, however, argues thus: The instant case involves such rudimentary tort principles, that the judge, absent a contrary showing, should have presumed that those principles are recognized in Saudi Arabia; therefore the burden of showing the contrary was on the defendant, which did not discharge that burden. But we do not agree that the applicable tort principles, necessary to establish plaintiff’s claim, are “rudimentary”: In countries where the common law does not prevail, our ■doctrines relative to negligence, and to a master’s liability for his servant’s acts, may well not exist or be vastly different. Consequently, here plaintiff had the burden of showing, to the trial court’s satisfaction, Saudi Arabian “law.” This conclusion seems unjust for this reason: Both the parties are Americans. The plaintiff was but a transient in Saudi Arabia when the accident occurred and has not been there since that time. The defendant company engages in extensive business operations there, and is therefore in a far better position to obtain information concerning the “law” of that country." But, under the New York decisions which we must follow, plaintiff had the burden. As he did not discharge it, a majority of the court holds that the judge correctly gave judgment for the defendant. 4. In argument, plaintiff’s counsel asserted that Saudi Arabia has “no law or legal system,” and no courts open to plaintiff, but only a dictatorial monarch who decides according to his whim whether a claim like plaintiff’s shall be redressed, i. e., that Saudi Arabia is, in effect, “uncivilized.” According to Holmes, J.—in Slater v. Mexican National R. Co., 194 U.S. 120, 129, 24 S.Ct. 581, 584, 48 L.Ed. 900, in American Banana Co. v. United Fruit Co., 213 U.S. 347, 355-356, 29 S.Ct. 511, 53 L.Ed. 826, and in Cuba R. Co. v. Crosby, 222 U.S. 473, 478, 32 S.Ct. 132—the lex loci does not apply “where a tort is committed in an uncivilized country” or in one “having no law that civilized countries would recognize as adequate.” If such were the case here, we think the New York courts would apply (and therefore we should) the substantive “law” of the country which is most closely connected with the parties and their conduct—in this case, American “law.” But plaintiff has offered no data showing that Saudi Arabia is thus “uncivilized.” We are loath to and will not believe it, absent such a showing. 5. The complaint in this action was filed on May 10, 1949. Pre-trial hearings were held before Judge Conger on December 2, 1952; January 7, 1953; March 31, 1953; and April 10, 1953. At these hearings the question of proving Saudi-Arabian law was discussed. When the case came on for trial on November 7, 1953 Judge Bicks indicated that in his view the burden was on the plaintiff to prove the foreign “law”. When the plaintiff’s counsel said that he was not prepared to prove the “law” of Saudi-Arabia, Judge Bicks proposed that the case be adjourned long enough to allow the plaintiff to prepare such proof. It was agreed that the case be put over for two days to enable the plaintiff to decide whether to request an adjournment for that purpose. When the hearing resumed on November 9, plaintiff’s counsel unequivocally took the position that he did not wish to prove the foreign “law” and wanted no adjournment. He chose to rely on the applicability of New York “law”. To that end he proposed that he proceed to present his case in order to make a record for appeal. The plaintiff’s evidence as to liability was presented and on a proper motion the judge dismissed the complaint. He specifically ruled that he would not take judicial notice of the “law” of Saudi-Arabia and that the plaintiff’s failure to prove that “law” required dismissal. Since the plaintiff deliberately refrained from establishing an essential element of his case, the complaint was properly dismissed. The majority of the court thinks that, for the following reasons, it is inappropriate to remand the case so that the plaintiff may have another chance: He had abundant opportunity to supply the missing element and chose not to avail himself of it. It does not appear whether Judge Bicks or counsel for the parties considered the application of Section 344-a of the New York Civil Practice Act. Since Judge Bicks specifically determined that he would not take judicial notice of the Arabian “law”, he must have considered that in some circumstances he might take judicial notice of foreign “law”. But in any event, as we have pointed out, it would have been an abuse of discretion under the New York cases to take notice of the foreign “law” here. The judgment of dismissal must therefore be affirmed. The writer of the opinion thinks we should remand for this reason: Apparently neither the trial judge nor the parties were aware of New York Civil Practice Act, § 344-a; consequently, in the interests of justice, we should remand with directions to permit the parties, if they so desire, to present material which may assist the trial judge to ascertain the applicable “law” of Saudi-Arabia. Affirmed. . Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. . See, e. g., American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S. Ct. 511, 53 L.Ed. 826. A variant but related notion is that the foreign sovereign alone has the power to create a legal obligation resulting from an act done within the territory over which it has “jurisdiction”, and that, if that sovereign does create such an obligation, that obligation accompanies the person of the defendant everywhere. See, e. g., Western Union Telegraph Co. v. Brown, 234 U.S. 542, 547, 34 S.Ct. 955, 58 L.Ed. 1457; Loucks v. Standard Oil Co. of N. Y., 224 N.Y. 99, 120 N.E. 198. For criticisms of this view, see, e. g., Cook, The Logical and Legal Bases of the Conflict of Law (1942) 7, 311 et seq.; Dodd, 39 Hary.L.Rev. (1926) 533, 536-537. For a different view, see, e. g., Judge Learned Hand in Guiness v. Miller, D.C., 291 F. 768, 770; Direction der Disconto-Gesellschaft v. U. S. Steel Corp., D.C., 300 F. 741, 744. . Cf. Wightman, J., and Willes, J., in Scott v. Lord Seymour, 1 H. & C. 219, 233-234, 236, 158 Eng.Rep. 865, 871-873, cited in the dissenting opinion in Slater v. Mexican Nat. R. R. Co., 194 U.S. at page 132, 24 S.Ct. 581. . Cf. Stumberg, Conflict of Laws (1951), 201 et seq. . Note the reference in Cuba R. Co. v. Crosby, 222 U.S. 473, 480, 32 S.Ct. 132, 133, to parties who “enter into civil relations” and to a “rule * * * under winch the parties dealt.” Those phrases are awkward in their application to wliat we call torts. . See, e. g., Seavey, The Waterworks Gases and Stare Decisis, 66 Harv.L.Rev. (1952) 84; Cf. Denning, The Road to Justice (1955) 6, 92, 98. . Cf. Cooper v. American Airlines, 2 Cir., 149 F.2d 355, 359; Pierce v. Ford Motor Co., 4 Cir., 190 F.2d 910; Trowbridge v. Abrasive Co., 3 Cir., 190 F.2d 825. . Were this not a diversity case, it might perhaps be appropriate to suggest that the Supreme Court should reconsider the accepted doctrine (as to the complete dominance of the “law” of the place where the alleged tort occurred) which seems to have been unduly influenced by notions of sovereignty a la Hobbes. See Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 51 L.Ed. 834 (referring to Hobbes and Bodin), cited in American Banana Co. v. United Fruit Co., 213 U.S. 347, 358, 29 S.Ct. 511, 53 L.Ed. 826; cf. Jaffe, Book Rev., 66 Harv.L.Rev. (1953) 939, 941 as to the reification of the “notion of power.” . See, e. g., Black Diamond S.S. Corp. v. Robert Stewart & Sons, 336 U.S. 386, 396-397, 69 S.Ct. 622, 93 L.Ed. 754; Cuba R.R. Co. v. Crosby, 222 U.S. 473, 479, 32 S.Ct. 132, 56 L.Ed. 274; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788; U. S. v. Wiggins, 14 Pet. 334, 39 U.S. 334, 10 L.Ed. 481; Church v. Hubbart, 2 Cranch 187, 6 U.S. 187, 236-237, 2 L.Ed. 249; Liechti v. Roche, 5 Cir., 198 F.2d 174, 176; U. S. ex rel. Zdunic v. Uhl, 2 Cir., 137 F.2d 858, 861; Dickerson v. Matheson, 2 Cir., 50 F. 73, 76. . It reads, in part: “A. Except as otherwise expressly required by law, any trial or appellate court, in its discretion, may take judicial notice of the following matters of .law: “1. A law, statute, proclamation, edict, decree, ordinance, or the unwritten or common law of a sister state, a territory or other jurisdiction of the United States, or of a foreign country or political subdivision thereof. * * * “C. Where a matter of law specified in this section is judicially noticed, the court may consider any testimony, document, information or argument on the subject, whether the same is offered by counsel, a third party or discovered through its own research. “D. The failure of either party to plead any matter of law specified in this section shall not be held to preclude either the trial or appellate court from taking judicial notice thereof.” . Busch, When Law is Fact, 24 Fordham L.Rev. (1956) 646; cf. Sommerich and Busch, 38 Cornell L.Rev. (1953) 125; U. S. ex rel. Jelic v. District Director of Immigration, 2 Cir., 106 F.2d 14, 20; U. S. ex rel. Zdunic v. Uhl, 2 Cir., 137 F.2d 858. . For a different possible justification, see Busch, loe. cit. at 649. ■ An American court may go astray even in taking judicial notice of English “law.” The similarity in language may be deceptive by concealing significant differences. Indeed, just because the English language appears the same as the American language (although it is not), an American may understand the former less adequately than he understands German or French, which is more obviously “foreign” and different. See Anon X. Mous, The Speech of Judges, 29 Va.L.Rev. (1943), 625, 628. Moreover, the taken-for-granted, unexpressed, background assumptions of English judges and lawyers differ from the unspoken assumptions of American judges and lawyers, and thus may well induce serious misunderstandings. Holmes, J., noted the baffling character of such tacit assumptions in a foreign system like that of Puerto Rico; see Diaz v. Gonsolez, 261 U.S. 102, 105-106, 43 S.Ct. 286, 67 L.Ed. 550. Tacit English assumptions may be even more baffling to an American. . For criticism of this narrow interpretation, see Nussbaum, Proving the Law of Foreign Countries, 3 Am.J. of Comp.Law (1954) 60-62; cf. Nussbaum, The Problem of Proving Foreign Law, 50 Tale L.J. (1941) 1018, 1023. . Greiner v. Freund, 286 App.Div. 996, 144 N.Y.S.2d 766; Arams v. Arams, 182 Misc. 328, 45 N.Y.S.2d 251; see also the articles cited in note 8, supra. . Sonnesen v. Panama Transport Co., 298 N.X. 262, 82 N.E.2d 569; Berg v. Oriental Consol. Mining Co., Sup., 70 N.Y.S.2d 19. . Cuba R. Co. v. Crosby, 222 U.S. 473, 478, 32 S.Ct. 132, 56 L.Ed. 274; Industrial Export & Import Corp. v. Hongkong & Shanghai Banking Corp., 302 N.Y. 342, 349-350, 98 N.E.2d 466; Ehag Eisenbahnwerte H.A. v. Banca Nat., 306 N. Y. 242, 249, 117 N.E.2d 346; Arams v. Arams, 182 Misc. 328, 45 N.Y.S.2d 251. . See Arams v. Arams, 182 Misc. 328, 45 N.Y.S.2d 251, and the other cases cited in the preceding footnote; see also Whitford v. Panama R. Co., 23 N.Y. 465; Crashley v. Press Pub. Co., 179 N.Y. 27, 32-33, 71 N.E. 258; E. Gerli & Co. v. Cunard SS Co., 2 Cir., 48 F.2d 115, 117; Ozanic v. U. S., 2 Cir., 165 F.2d 738, 744. . See Nussbaum, 3 Am.J. of CompXaw (1954) 60, 62; Nussbaum, 50 Yale L.J. (1941) 1018, 1043. . Cf. Dicey, Conflict of Laws (2d ed.) 726, cited in American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S.Ct. 511, 53 L.Ed. 826. The latest or 6th edition of Dicey (1949) 805 repeats the statement. . This is in line with the idea that the “proper law” is that of the place of paramount contacts, as to which see Cheatham, Goodrich, Griswold and Reese, Cases and Materials on Conflict of Law (3d ed., 1951) 420 et seq.; cf. 204, 239-240; Cavers, A Critique of The Choice of Law Problem, 47 Harv.L.Rev. (1933) 173, 191-193. As the tort rules, pertinent here, of New York, Delaware and Arkansas are doubtless substantially similar, there would be no need to choose one or the other. . Estho v. Lear, 7 Pet. 130, 32 U.S. 130, 8 L.Ed. 632; Ford Motor Co. v. N. L. R. B., 305 U.S. 364, 373, 59 S.Ct. 301, 83 L.Ed. 221; U. S. v. Rio Grande Dam & Irrigation Co., 184 U.S. 416, 423-424, 22 S.Ct. 428, 46 L.Ed. 619; Porter v. Leventhal, 2 Cir., 160 F.2d 52, 59 and oases there cited; Benz v. Celeste Fur Dyeing & Dressing Corp., 2 Cir., 136 F.2d 845; Nachman Spring-Filled Corp. v. Kay Mfg. Co., 2 Cir., 139 F.2d 781, 787. See also Usatorre v. The Victoria, 2 Cir., 172 F.2d 434; Sonnesen v. Panama Transport Co., 298 N.Y. 262, 267, 82 N.E.2d 569; Sommerich, 4 Am.J. of Comp.Law (1955) 453. . Or that it has no “civilized” legal system ; see point 4 of the text, supra. Nussbaum, 3 Am.J. of Comp.Law (1954) 60, 63-64—criticising Usatorre v. The Victoria, 2 Cir., 172 F.2d 434 points to an important fact; the prohibitive expense to a party of modest financial means in obtaining an expert to explain foreign “law.” Subsequently (pp. 66-67), Nussbaum suggests that the trial judge call his own expert; the judge, says Nussbaum, would require the parties to advance the expert’s fee, or, “if this is not feasible, the court (hence eventually the losing party), may be charged with the fee as part of the court’s business.” But, as matters now stand, this solution is not feasible: In a federal criminal case, a trial judge may call upon his own expert whom the government will pay; see Criminal Rule 28, 18 U.S.C.A. However, in a civil case (at any rate, one to which the government is not a party) the government has no authority to pay an expert; and the use of the device of taxing the expert’s fee as part of the costs to the losing party may be beyond the judge’s power (absent a statute); in any event, the expert will go unpaid if the losing party has not the funds to pay such costs. In the instant case, a letter from Hon. Raymond T. Yingling, Assistant Legal Adviser of the U. S. Department of State, suggests to the writer that, with little or no expense, the parties probably could procure some information as to the pertinent legal rules of Saudi Arabia; perhaps, also, further information could be procured without expense from officials of The United Nations. 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_genapel1	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. 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. Willis K. BAKER, Jr., and Mervin “Bud” Cornelsen, Appellants, v. UNITED STATES of America, Appellee. Nos. 21318-A, 21318-B. United States Court of Appeals Ninth Circuit. April 4, 1968. Rehearing Denied May 21, 1968. Vincent J. Mullins, Gerald J. O’Connor of Sullivan, Roche, Johnson & Farraher, San Francisco, Cal., for appellants. James E. Shekoyan, Asst. U. S. Atty., William Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Criminal Division, Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for ap-pellee. Before MADDEN, Judge of the Court of Claims, and HAMLEY and MERRILL, Circuit Judges. HAMLEY, Circuit Judge: Count one of a three-count indictment, filed on April 7, 1966, charged Charles Raymond Rush, Roger Lee Stephenson, Willis Kingsley Baker, Jr., and Mervin “Bud” Cornelsen, under 18 U.S.C. §§ 371 and 641 (1964), with conspiracy to receive, conceal and convert stolen government property to their own use. Count two of the indictment charged Rush with stealing a quantity of government property in violation of 18 U.S.C. § 641. Count three charged Baker with receiving, concealing and converting a quantity of government property in violation of 18 U.S.C. § 641. Stephenson pleaded guilty to count one, the only count involving him. Rush, Baker and Cornelsen pleaded not guilty to the counts in which they were individually named. These three were jointly tried before a jury. Rush was convicted on counts one and two. Baker was convicted on counts one and three. Cornel-sen was convicted on count one. Baker and Cornelsen jointly appeal. Baker was the owner of an aircraft parts and supply company, known as Aero Enterprises, located at the Fresno Airport, Fresno, California. Cornelsen was one of his employees. Stephenson was a cement mason apprentice in Fresno. In 1963 Stephenson met Rush, who was an employee at the Lemoore Naval Air Station. Rush worked as a stockman in the stowage branch in the aviation warehouse. In that position he had complete access to a wide range of military equipment, including radio and navigational components for aircraft. Stephenson was also acquainted with Baker and Cornelsen. In the summer of 1965, Stephenson purchased from Rush some altimeters for use in sport parachuting. He found that they were too sensitive to use for jumping and therefore sold them to Baker on August 30, 1965. Stephenson sold various aviation items to Baker from time to time, after having acquired them from Rush. Cornelsen was present while several of these transactions between Stephenson and Baker were consummated. Rush had stolen some of these items from Lemoore Naval Air Station’s supply department. The circumstances under which Baker purchased these items and under which he and Cornelsen dealt with the items after purchase led the jury to find Baker guilty on the receiving, concealing and converting count, and both Baker and Cornelsen guilty on the conspiracy count. On appeal Baker argues that the district court erred in denying his motion for a separate trial on count three of the indictment charging him alone with receiving and concealing stolen government property. Baker alleges that the joinder of count three with count two, charging Rush with stealing the same property, was an impermissible joinder of defendants under Rule 8(b), Federal Rules of Criminal Procedure. Rule 8(b) permits the joinder of multiple defendants only where it is alleged that they have “participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” The rule provides, however, that “all of the defendants need not be charged in each count.” Here counts two and three, the substantive counts, and count one, the conspiracy count, considered together, all arise out of the same series of transactions in which all of the defendants allegedly participated. Where this is the case, the joinder, in one indictment, of the conspiracy count and substantive counts is permissible under Rule 8(b). See Schaffer v. United States, 362 U.S. 511, 513, 80 S.Ct. 945, 4 L.Ed.2d 921; Williamson v. United States, 9 Cir., 310 F.2d 192, 197 n. 16; Hill v. United States, 9 Cir., 306 F.2d 245, 247. Baker also asserts that the trial court should have granted his motion for severance and separate trial of count three under Rule 14, Federal Rules of Criminal Procedure, because of prejudice to himself stemming from the joinder of defendants and offenses. Baker first argues that he was prejudiced because a confession of one of the defendants was introduced in evidence against him. But the only defendants who were tried with Baker were Cornel-sen and Rush, and neither of them made a confession. Although Stephenson’s confession was introduced into evidence, it was introduced by Baker in an attempt to impeach Stephenson’s testimony. Thus, the introduction of the confession was not hearsay and the joinder of defendants created no prejudice in this regard. Baker also asserts, in effect, that prejudice is probable in a case where two offenses are joined because a defendant may wish, as a practical matter, to testify on one count and remain silent on the other. However, Baker makes no contention that this was his wish in this case, and that the joinder thwarted such tactics. Baker suggests several other reasons why, in his view, actual or potential prejudice resulted from failure to grant him a separate trial on count three of the indictment. We have examined each of these and conclude that no substantial actual or probable prejudice has been demonstrated. While Rule 14 permits the trial court to order severance of either offenses or defendants if it appears that a defendant may be prejudiced by joinder, the failure of the court to order severance is not a basis for reversal absent a clear abuse of discretion. Mendez v. United States, 9 Cir., 349 F.2d 650, 652. We find no abuse of discretion in this regard. Baker contends that the trial court abused its discretion in denying his repeated motions for a speedy trial. The first three-count indictment was filed on January 19, 1966. On February 18, 1966, Baker and Comelsen moved to dismiss count one of that indictment (conspiracy). At the same time Baker moved for a separate and speedy trial as to him on count three (receiving and concealing) in the event count one was dismissed. On February 28, 1966, both motions were granted and, whereas a joint trial had been set for May 11, 1966, a separate trial for Baker on count three was then set for April 5, 1966. On March 10, 1966, the Government filed a superseding indictment containing the same three counts, but with some revision of coun,t one. The Government then moved to vacate the April 5, 1966 trial setting on count three of the first indictment, stating that, in view of the superseding indictment, the Government would not prosecute under the first indictment. The district court thereupon vacated the April 5, 1966 trial setting, and ordered a joint trial of all three defendants on all counts of the superseding indictment for May 11„ 1966. On April 4, 1966, Baker moved for an early and separate trial of count three of the superseding indictment. On April 7, 1966, before the above motion was argued, the Government filed a second three-count superseding indictment. Again there were revisions in count one of the indictment. On April 11, 1966, Stephenson entered a plea of guilty on count one (conspiracy), and May 23, 1966 was fixed as the date of his presentence report. As noted above, Baker, Cornel-sen and Rush pleaded not guilty on all counts affecting them. Baker’s motion for severance was argued and denied on April 11, 1966. Counsel for Rush moved that the trial date be postponed from May 11, 1966 to the first or second week of June. But Baker and Cornelsen preferred to hold the May 11, 1966 trial date and the Government indicated satisfaction with that date. The court therefore retained the May 11, 1966 trial setting. On May 11, 1966, Baker and Cornel-sen appeared in court ready for trial. They were met by a motion for a continuance filed by the Government that morning, without prior service on opposing counsel. The trial court, however, apparently had been given advance notice of the motion for a continuance since, prior to May 11, 1966, the jury panel had been instructed not to appear on that day. The motion was made on the ground that the Government had been unable to serve a subpoena on one of its witnesses. Baker and Cornelsen strenuously resisted the motion for continuance, but the order was granted and the trial was continued to May 24,1966. The case went to trial on that day. The continuance from May 11 to May 24, 1966, was for such a short period of time that it could not, in our view, constitute a denial of appellants’ Sixth Amendment right to a speedy trial. We similarly conclude with regard to the delay from April 5, 1966, once set as the trial date for Baker, to the May 24, 1966 trial date. Baker and Cornelsen also appear to argue, in effect, that the trial court abused its discretion in granting the continuance. However, no prejudice is alleged to have resulted from this continuance whether deemed to be from April 5, or May 11, 1966. We hold that the trial court did not err in setting the trial for May 24, 1966, rather than an earlier date. Baker and Cornelsen contend that the court erred in denying their motions for acquittal, made at the close of the Government’s case and renewed at the close of all the evidence. The motions were made on the ground that the evidence was insufficient to support the verdicts of guilty. On appeal, one argument which appellants make in support of this contention is that the evidence failed to establish beyond a reasonable doubt that Baker and Cornelsen knew the property in question had been stolen. The brief on appeal, filed by the office of the United States Attorney, contains numerous misstatements, all favorable to the Government, concerning the evidence pertaining to knowledge. However, each of these misstatements has been carefully noted and thoroughly documented in appellants’ reply brief and, in addition, we have made our own examination of the record. The evidence on the question of whether Baker and Cornelsen knew that the property had been stolen is largely circumstantial. There is a good deal of such evidence which tends to indicate that Baker and Cornelsen did not have such knowledge. On the other hand, there is substantial circumstantial evidence to the contrary. Among items of evidence in the latter category is the testimony of Douglas Wood that when he asked Baker if the equipment was “hot,” Baker replied, “No, it’s a little warm”; the testimony of John Alvey that when he asked appellants if the stuff was “hot,” they replied, “Everything was taken care of and don’t sweat about it,” and that the equipment was “warm”; the testimony of Rush that Cornelsen joined with Stephenson in attempting to induce Rush to take parts from Lemoore Naval Air Station; and the testimony of Stephenson that, in a conversation with Baker and Cornelsen, the Lemoore source of the items was mentioned and, during the conversation, Baker gave Stephenson a list of the specific items he could use. Many other items of evidence tended to show guilty knowledge if the jury chose to accept the version presented by some witnesses and reject the exculpatory explanations offered by other witnesses. Viewing the evidence in the light most favorable to the Government, as we are required to do on this appeal, we conclude that reasonable minds could find beyond a reasonable doubt, that Baker and Cornelsen knew that the government property had been stolen. Appellants also argue that the evidence is insufficient on the conspiracy count in that it failed to establish a concert of action by Baker, Cornelsen and Rush. In our opinion, the testimony concerning the meeting which Stephenson had with Baker and Cornelsen in September 1965, provides ample evidence of concert of action between Baker, Cornelsen, Stephenson and some person in the supply department at Lemoore who may then have been unknown to Baker and Cornel-sen. It is not material whether, during the course of the conspiracy, Baker and Cornelsen knew that the fourth conspirator was Rush. See Rogers v. United States, 340 U.S. 367, 375, 71 S.Ct. 438, 95 L.Ed. 344; Lile v. United States, 9 Cir., 264 F.2d 278, 281. Another point appellants urge on the question of the sufficiency of the evidence is that, whereas the indictment charges them with having received an ARN-21 unit, serial no. AAZ2222 on or about October 5,1965, the evidence shows that this unit was in the Government’s own hands at least as late at November 1, 1965. We reserve discussion of this argument to a later point in this opinion where the matter of a discrepancy between indictments will be dealt with. Finally, on the question of the sufficiency of the evidence, Cornelsen points out that he did not himself buy any of the property, and argues that if there was a receiving and concealing of the property it was by his employer Baker, and not by Cornelsen, who was Baker’s employee. An employee who assists his employer in receiving and concealing stolen property purchased by the employer, is not necessarily guilty of aiding and abetting a violation of 18 U.S.C. § 641, or of conspiring to commit such an offense. But if, as the evidence pertaining to Cornelsen tends to show, he has knowledge that the property has been stolen and that his employer intends to convert it to his own use, and if he conspires with his employer and others to effectuate that plan and actively participates therein, he is guilty of engaging in an unlawful conspiracy as defined in 18 U.S.C. § 371. We think the evidence is sufficient to support the jury finding that Cornelsen engaged in such a conspiracy. We conclude that the trial court did not err in denying appellants’ motions for acquittal, made on the ground that the evidence is insufficient. Before, during and after the trial Baker contended that the indictment charged him with two crimes involving the same activity. Specifically, he asserted that count one (conspiracy) and count three (receiving, concealing and converting government property) were identical offenses. All of his efforts made on this ground, to dismiss one count or the other, to compel an election, to instruct the jury on the point, and to grant a new trial, were denied. Baker argues that the trial court erred in denying such relief. Baker’s position on this point is premised on the view that in order to convict him under count three it was necessary to prove that Rush stole the subject property, that Stephenson delivered the property to Baker, and that Baker received it, with knowledge of the theft, for his own use — and that these are the exact same elements required to prove the conspiracy charged in count one. In order to convict Baker of the substantive offense set out in count three, all the Government had to prove was that he received government property from Stephenson, knowing that it was stolen, with intent to convert it to his own use. In order to prove the conspiracy offense set out in count one, the Government had to prove that Baker conspired with Stephenson* Cornelsen and Rush to commit the substantive offense. The commission of the substantive offense and the conspiracy to commit it are two separate and distinct offenses, and a conviction on the substantive count does not merge the conspiracy count. Pinkerton v. United States, 328 U.S. 640, 643-644, 66 S.Ct. 1180, 90 L.Ed. 1489; Hill v. United States, 9 Cir., 306 F.2d 245, 247. However, where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy. See Gebardi v. United States, 287 U.S. 112, 122, 53 S.Ct. 35, 77 L.Ed. 206. Thus Baker could not have been convicted of conspiring with Stephenson alone to receive stolen government property, since Baker received the property from Stephenson. But where a conspiracy contemplates the cooperation of a greater number of parties than are necessary to the commission of the principal offense, the one who commits the principal offense may be convicted of that offense and also the conspiracy. See Gebardi, 287 U.S. at 122, n. 6, 53 S.Ct. 35; Reno v. United States, 5 Cir., 317 F.2d 499, 503-504. Here there was evidence sufficient to warrant a jury finding that Baker conspired with Stephenson, Cornelsen and Rush to commit the substantive offense involving Baker’s reception and conversion of stolen property from Stephenson. The two charges are therefore not identical and the district court did not err in denying Baker relief on that ground. Appellants contend that the court erred in receiving, over their objection, evidence pertaining to three ARN-21 units which had been stolen from Le-moore. Prior to trial the court granted a motion to suppress certain evidence seized as the result of an unlawful search on December 21, 1965, at Fresno, California. The order also suppressed “all evidence obtained directly or indirectly from the search and seizure made pursuant to said search warrant.” The three ARN-21 units were seized after the unlawful search at Allied Aircraft Sales in Phoenix, Arizona. Appellants contend that the Government obtained the information which led to the discovery of these items as a result of interrogating Baker and Cornelsen during the course of the unlawful search. They . argue that introduction in evidence of these items was therefore in violation of the court’s suppression order and the Supreme Court ruling in Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441. John David Carroll, one of the F.B.I. agents who conducted the unlawful search, testified that on the morning of December 21, 1965, shortly before the search was made on that day, he conversed with one John Alvey and learned that three ARN-21 units had been shipped to Robert “Gallagher” in Phoenix, Arizona. The correct spelling of this name is “Gallaher.” According to Carroll, Alvey at this time also mentioned Allied Aircraft, located on Washington Street in Phoenix. Carroll further testified that, during the search, he asked Baker if he had any records on the shipment of equipment and supplies to Phoenix, and Baker replied that he had shipped some things to Gallaher but did not have any records on this. The name of Allied Aircraft and Gal-laher’s connection with that company must have come up during this conversation because Carroll testified that Baker and Cornelsen told him that Phoenix, Arizona, was a sufficient address to reach Gallaher. The trial court denied the motion to suppress. Later in the trial, when Alvey was on the witness stand, counsel for Cornelsen handed him a copy of a . report, dated December 27, 1965, which Carroll had prepared concerning his conversation with Alvey described above. Alvey stated that the report correctly reflected his conversation with Carroll. Among other things, the report stated that Alvey said Baker sold some radios to Bob “Gallagher” on Washington Street, in Phoenix, Arizona. Directing Alvey’s attention to the “12-23-65” date (two days after the unlawful search) which appeared at the bottom of the report, counsel asked Alvey if that was “about” the date when Alvey conversed with Carroll. Alvey replied, “It’s possible.” In urging that the court erred in receiving evidence concerning the three ARN-21 units, appellants assert that Al-vey’s testimony, described above, shows that Carroll did not receive any information from Alvey until two days after the unlawful search. Hence, they urge, Carroll must have received his first information concerning the whereabouts of these units during his conversation with Baker and Cornelsen at the time of the search. We do not agree. In the first paragraph of Carroll’s report of December 27, 1965, he stated that his conversation with Alvey occurred on December 21, 1965. But when Comelsen’s counsel asked Alvey to state the date of the conversation, he directed Alvey’s attention not to the December 21, 1965 date, but to the “12-23-65” date which appeared at the bottom of the report. That date, however, was not intended to indicate the date of the conversation, since it read: “Date dictated 12-23-65.” Thus Alvey was misled, albeit inadvertently, in eliciting his recollection as to the date of the conversation. Even then, Alvey did not state categorically that the conversation occurred on December 23, 1965. All he said was, “It’s possible.” Appellants also rely on some other circumstances in arguing that the Government received essential information concerning the whereabouts of the ARN-21 units during interrogation of Baker and Cornelsen at the time of the unlawful search. One of these is that Carroll’s report made no mention of any ARN-21 units. This is immaterial. The report indicated that Alvey told Carroll that Baker had sold some radios to Bob “Gallagher” of Allied Aircraft, on Washington Street in Phoenix, Arizona. This was enough of a lead to take the government agents to that address. This observation also negates any possible significance arising from the fact that, during the unlawful search, Carroll was told that with the name “Allied Aircraft,” there was no need of obtaining a street address in Phoenix. Carroll had obtained an adequate address from Alvey. The fact that, in his conversation with Carroll, Alvey referred to a “Gallagher” instead of “Gal-laher” is likewise without significance. The trial court did not err in receiving these exhibits in evidence. Appellants also predicate error upon a curious discrepancy in indictments which was discovered during the course of the trial. Count one of the original indictment, returned on January 19, 1966, charging a conspiracy, alleged three overt acts, all occurring on or about September 24, 1965. The first alleged overt act was the theft, by Rush, of one ARN-21 unit from Lemoore, serial number AAZ2222. The second alleged overt act was the delivery of one ARN-21 unit by Stephenson to Baker on or about the same day, and the third alleged overt act was the receiving and concealment of “the above stated property” by Baker and Cornelsen on or about the same day. While no serial number was stated with respect to the second and third overt acts, the words “the above stated property” and the identity of dates indicates that all three overt acts were concerned with an ARN-21 unit, serial number AAZ2222. The description of the three overt acts set out in the conspiracy count of the first superseding indictment was identical with that contained in the first indictment. The case was tried on a second superseding indictment, filed on April 7, 1966. In count one of that indictment (conspiracy), three overt acts are set out, all occurring on or about October 5, 1965. Each of these three overt acts relates to three ARN-21 units, but no serial number is given for any of them. However, the copies of that indictment which the clerk of the district court handed to counsel for Baker and Cornelsen prior to the trial contains the notation “Serial No. AA22222” after the reference to the three ARN-21 units referred to in the first overt act (stealing by Rush) of the conspiracy count. During the Government’s ease it was established that an ARN-21 unit, serial number AAZ2222, was in the possession of the Government at Lemoore on November 1, 1965. At the close of the Government’s ease, defendants moved for acquittal, one ground being that the Government had failed to prove, as alleged in count one of defendants’ copy of the indictment, that all three ARN-21 units, serial number AAZ2222, had been stolen, delivered, received and concealed “on or about October 5, 1965.” The court, having before it the correct form of the indictment showing no serial number, denied the motion. Immediately thereafter, a colloquy occurred during which the discrepancy between the indictments came to light. On the basis of this revelation, counsel for Baker and Cornelsen immediately renewed their motions for acquittal or dismissal. The court denied the motions, pointing out that the correct form of the indictment had been read aloud in court at the outset of the trial and that defendants could not therefore complain that they were unaware of the fact that the overt acts did not refer to any particular serial number. On this appeal defendants argue that they were so prejudiced by the described discrepancy in indictments that the court erred in denying their motions for acquittal or dismissal. They urge that, based upon the form of the indictment which had been supplied to them, one of their chief defenses was the fact that an ARN-21 unit, serial number AAZ2222, was still in Government hands in November 1965, and therefore could not have been stolen, delivered, received and concealed “on or about October 5, 1965.” This defense, they argue, was undermined by the fact, unknown to them until the end of the Government’s case at the trial, that the overt acts alleged in the true indictment did not refer to ARN-21 units of any particular serial number. An observation is first in order concerning the fact that, in the copies of the indictment supplied to defendants, the serial number AAZ2222 followed a reference to three ARN-21 units, rather than a single ARN-21 unit, as in thé first two indictments. It is common knowledge that individual devices and appliances are given individual serial numbers, and that two or more such items would not carry the same serial number. Moreover, defendants knew from the allegations of the first two indictments that serial number AAZ2222 was intended to identify only one ARN-21 unit. Accordingly, we do not believe that Baker and Cornelsen were misled into believing that the serial number, stated with regard to the first overt act in the copy of the indictment handed to them, was intended to identify all three ARN-21 units referred to in that alleged overt act. They were, however, entitled to believe that one of the ARN-21 units carried that serial number. As stated above, the evidence shows that an ARN-21 unit, with serial number AAZ2222, was in the possession of the Government at Lemoore on November 1, 1965. However, the Government proved that, later that month, this unit was on the premises of Baker’s Aero Enterprises in Fresno. Thus, the Government actually did prove the allegations of the form of indictment handed defendants that these overt acts occurred with respect to an ARN-21 unit, serial number AAZ2222, unless the time variance between “on or about October 5, 1965,” as alleged in that indictment, and sometime in November 1965, after November 1, as shown by ' the evidence, calls for a different conclusion. Defendants were charged with having participated in a conspiracy which began about August 1965, and continued to about December 21, 1965. The overt acts alleged in the indictment concerning ARN-21 units were proved to have been committed during that period. This being the case, the fact that some of these acts, namely those concerning one of the three ARN-21 units, occurred sometime during the last twenty-nine days of November 1965, rather than “on or about October 5, 1965,” is, in our opinion, an immaterial and non-prejudicial variance. Our conclusion in this respect finds support in Strauss v. United States, 5 Cir., 311 F.2d 926, 932. In that case the indictment alleged that the overt acts, whereby co-defendant Goodman drew specified checks on a particular bank, occurred between November 8, 1957 and March 27, 1958. The proof showed that the checks had been drawn between June 3 and August 29, 1957. The court held that, under the circumstances, this variance in proof did not prejudice the defense, observing that a substantial similarity between the facts alleged in the overt act and those proved is all that is required. Baker and Cornelsen were therefore not entitled to rely, as a substantial defense, upon the fact that they could prove the overt acts concerning one of these ARN-21 units did not take place on or about October 5, 1965, as compared to the later day shown by the evidence. Accordingly, they were not misled by the copies of the indictments supplied to them into depending upon a substantial defense which was not available under the true form of the indictment. The trial court did not err in denying the motions for acquittal or dismissal based on the discrepancy between indictments. The views just expressed also call for rejection of defendants’ contention that, because ARN-21, serial number AAZ-2222 was still in the possession of the Government on November 1, 1965, the evidence is insufficient on the conspiracy count. At the outset of the testimony of Stephenson, an alleged co-conspirator and witness for the Government, the fact was elicited, in response to a direct question from the United States Attorney, that Stephenson had pleaded guilty. Immediate objection was made thereto on the ground that this constituted misconduct, but the objection was overruled. At the first opportunity a motion for mistrial was made upon the same ground but was denied. In its charge to the jury, the court instructed that the jury could not consider the guilty plea of Stephenson “as evidence against any of the other defendants,” and that this evidence could be considered only “when you are determining whether or not Mr. Stephenson told the truth when he testified in this court room.” Appellants contend that the trial court erred in denying the motion for a mistrial, and that such error was not cured by the described instruction given at the close of the case. The general rule is that guilty pleas of co-defendants cannot be considered as evidence against those on trial. United States v. Restaino, 3 Cir., 369 F.2d 544, 545. The reasoning here is that a defendant is entitled to have the question of his guilt determined upon the evidence against him, not on whether a Government witness or co-defendant has pleaded guilty to the same charge. Babb v. United States, 5 Cir., 218 F.2d 538, 542. The question remains, however, whether the error in receiving in evidence Stephenson’s statement that he had pleaded guilty, was prejudicial under the circumstances of this case. The trial court did not, as in United States v. Toner, 3 Cir., 173 F.2d 140, or United States v. Hall, 2 Cir., 178 F.2d 853, instruct the jury that it could take into consideration in determining the guilt of an alleged conspirator the fact that an alleged co-conspirator had pleaded guilty. As indicated above, the trial court did just the opposite — it instructed that this evidence was not to be considered in passing upon defendants’ guilt. No case has been called to our attention where, in the face of such a cautionary instruction, reversible error has been declared. Moreover, in the case before us, the statement obtained from Stephenson that he had pleaded guilty added nothing of substance to the information the jury obtained as a result of other evidence. In the course of his direct testimony Stephenson thoroughly implicated himself. In cross-examination of Stephenson, counsel for Baker put in evidence, and cross-examined Stephenson concerning, the report of F.B.I. agent Carroll summarizing his interview with Stephenson. During this interview Stephenson told of delivering items to Baker and Cornelsen which Stephenson knew had been stolen. Baker’s counsel also cross-examined Stephenson as to the latter’s understanding of what he had pleaded guilty to. We hold that the court did not err in denying defendants’ motion for a mistrial made on the basis of Stephenson’s testimony that he had pleaded guilty. Appellants question the giving of certain instructions, and the failure to give other requested instructions. Having in view the instructions as a whole, and the objections thereto which were taken on behalf of defendants, we find no prejudicial error with respect to the instructions given, and the failure to give requested instructions. The remaining assignments of error have been examined and have been found to be without merit. Affirmed. . The unlawfulness of the search and seizure resulted from the fact that the search was conducted on premises totally separate and distinct from the premises described in the search warrant. . It will be noted that the serial number set out in the copies of the third indictment handed to defendants varied somewhat from the serial number referred to in the first overt act alleged in the first two indictments, “AA22222” being used instead of AAZ2222. However, as Baker’s attorney recognized at the trial, the first “2” was a typographical error and the serial number should have read “AAZ-2222” as in the first two indictments. . The Government attorney explained to the court that he had intended to remove this serial number when he modified the second indictment in drafting the third indictment. However, through some error, the serial number, while omitted from the copy signed by the jury foreman and used by the court, was retained in the copies given to Baker and Cornel-sen. . Robert A. Gallaher, witlj Allied Aircraft Sales, Phoenix, Arizona, testified at the 1966 trial that he saw a unit with that serial number, and two other ARN-21 units, at Baker’s Fresno shop “[i]n November of last year,” that he talked to Baker and Cornelsen about them, and that, at that time, he purchased the three ARN-21 units from Baker for about §350 each. 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:
sc_casedisposition	B	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. MONROE v. STANDARD OIL CO. No. 80-298. Argued March 4, 1981 Decided June 17, 1981 Stewart, J., delivered the opinion of the Court, in which White, Marshall, Rehnquist, and Stevens, JJ., joined. Burger, C. J., filed a dissenting opinion, in which Brennan, Blackmun, and Powell, JJ., joined, post, p. 566. Alan I. Horowitz argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Daniel, Robert E. Kopp, Beate Bloch, Lois G. Williams, Kerry L. Adams, and William Taylor. Paul S. McAuliffe argued the cause and filed a brief for respondent. Martin J. Klaper and David L. Gray filed a brief for Cummins Engine Co., Inc., as amicus curiae urging affirmance. Justice Stewart delivered the opinion of the Court. The Court of Appeals for the Sixth Circuit concluded that 38 U. S. C. § 2021 (b) (3), a provision of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, does not require an employer to provide preferential scheduling of work hours for an employee who must be absent from work to fulfill his military reserve obligations. 613 F. 2d 641. We granted certiorari to consider the petitioner’s contention that an employer has a statutory duty to make work-scheduling accommodations for reservist-employees not made for other employees, whenever such accommodations reasonably can be accomplished. 449 U. S. 949. I In 1975 and 1976, the years pertinent to this litigation, the petitioner was a full-time employee in the respondent’s continuous process refinery in Lima, Ohio. The refinery was operated 24 hours a day, 7 days a week, 365 days a year. To insure that the burdens of weekend and shift work would be equitably divided among its employees over the course of a year, the respondent scheduled its employees to work five 8-hour days in a row weekly, but in a different 5-day sequence each week. Under the respondent’s collective agreement with its union, however, an employee could, with .the acquiescence of his foreman and if the change did not require the payment of overtime, exchange shifts with another employee. During the same period, the petitioner was a military reservist, and had to attend training with his unit one weekend a month and for two weeks each summer. On a number of weekends, the petitioner was required to attend training on days when he was scheduled to work at the refinery. Although the petitioner was able on four of these occasions to exchange shifts with other employees, he was unable to make such an exchange in most instances. The respondent provided him with leaves of absence to attend training, as 38 U. S. C. § 2024 (d) required it to do, but it did not pay him for the hours he did not work, nor did it take steps to permit him to make up those hours by working outside his normal schedule. When the petitioner was on a leave of absence and could not arrange a switch with another employee, the respondent would make arrangements to fill the vacancy created by the petitioner’s absence, arrangements often requiring the payment of overtime wages to the substitute. In 1976, the petitioner brought this action against the respondent alleging that it had violated the provisions of 38 U. S. C. §§2021 (b)(3) and 2024(d). Noting that the first of these sections provides that an employer may not deny a military reservist in his employ any “incident or advantage of employment” because of the employee’s obligations to the Reserves, and finding that “being scheduled for a full forty hour week at the [respondent’s] refinery constitutes an incident or advantage of employment,” the District Court for the Northern District of Ohio granted summary judgment to the petitioner. 446 F. Supp. 616, 618, 619. The court awarded petitioner $1,086.72 for wages lost on those “work dates when an accommodation should have been made.” Id., at 619. The Court of Appeals for the Sixth Circuit reversed. 613 F. 2d 641. First, it determined that the respondent had met the requirements of § 2024(d). It noted that this section “guarantees terms and conditions of reemployment to reservists returning from inactive duty training,” but found that “[i]t does not, however, protect reservists from discrimination by their employers between training assignments.” Id., at 643-644. Next, the Court of Appeals rejected the District Court’s interpretation of §2021 (b)(3). It held that this section “merely requires that reservists be treated equally or neutrally with their fellow employees without military obligations.” Id., at 646. The appellate court then concluded that the respondent had taken no discriminatory action that is proscribed by § 2021 (b)(3): “The requirement of equal treatment was met in the present case. The parties agreed that appellee was regularly scheduled for forty-hour workweeks, as were his fellow employees. Further, Monroe was scheduled for weekend work in accordance with Sohio’s established practice of rotating shifts to insure that all employees would work approximately an equal number of weekend days. Finally, he was treated the same as his coworkers with regard to the right to exchange shifts with other employees.” Id., at 646. II This case presents the first occasion this Court has had to address issues arising from the statutory provisions, codified at 38 U. S. C. § 2021 et seq., specifically dealing with military reservists. We have, however, frequently interpreted the somewhat analogous statutory provisions entitling the returning regular veteran to reinstatement with his “seniority, status and pay” intact, 38 U. S. C. § 2021 (a), most recently in Coffy v. Republic Steel Corp., 447 U. S. 191, and Alabama Power Co. v. Davis, 431 U. S. 581. A Statutory re-employment rights for veterans date from the Nation’s first peacetime draft law, passed in 1940, which provided that a veteran returning to civilian employment from active duty was entitled to reinstatement to the position that he had left or one of “like seniority, status, and pay.” 38 U. S. C. § 2021 (a). In 1951, in order to strengthen the Nation’s Reserve Forces, Congress extended reinstatement rights to employees returning from training duty. See Pub. L. 51, ch. 144, § 1 (s), 65 Stat. 75, 86-87. Thereafter, the Reserve Forces Act of 1955, Pub. L. 305, ch. 665, § 262 (f), 69 Stat. 598, 602, provided that employees returning from active duty of more than three months in the Ready Reserve were entitled to the same employment rights as inductees, with limited exceptions. In 1960, these re-employment rights were extended to National Guardsmen, Pub. L. 86-632, 74 Stat. 467. See 38 U. S. C. § 2024 (c). In addition, a new section, now codified at 38 U. S. C. § 2024 (d), was enacted in 1960 to deal with problems faced by employees who had military training obligations lasting less than three months. This section provides that employees must be granted a leave of absence for training and, upon their return, be restored to their position “with such seniority, status, pay, and vacation” as they would have had if they had not been absent for training. Section 2024 (d) closely paralleled 38 U. S. C. § 2021 (a), the latter section ensuring the reinstatement of regular veterans returning from active duty. But § 2024 (d) did not provide reservists with protection against discharges, demotions, or other discriminatory conduct once reinstated. Section 2021 (b)(2), on the other hand, provided regular veterans returning from active duty one year’s “protection . . . against certain types of discharges or demotions that might rob the veteran’s reemployment of its substance.” Oakley v. Louisville & Nashville R. Co., 338 U. S. 278, 285. The legislative history of § 2021 (b) (3) indicates that it was designed to provide similar protection to employee-reservists. B Section 2021 (b)(3) provides in pertinent part: “Any person who [is employed by a private employer] shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces.” The Senate Report on the bill that became §2021 (b)(3), stated that the purpose of the enactment was “to prevent reservists and National Guardsmen not on active duty who must attend weekend drills or summer training from being discriminated against in employment because of their Reserve membership . . . .” S. Rep. No. 1477, 90th Cong., 2d Sess., 1-2 (1968). The Report explained that “[e]mployment practices that discriminate against employees with Reserve obligations have become an increasing problem in recent years. Some of these employees have been denied promotions because they must attend weekly drills or summer training and others have been discharged because of these obligations. . . . [T]he bill is intended to protect members of the Reserve components of the Armed Forces from such practices.” Id., at 2. The protection was to be accomplished by entitling reservists “to the same treatment afforded their coworkers not having such military obligations . . . .” Ibid. The House Report announced the same motivation. The bill was described as providing “job protection for employees with obligations as members of a reserve component.” H. R. Rep. No. 1303, 90th Cong., 2d Sess., 3 (1968). The House Report elaborated as follows: “Section (1) amplifies existing law to make clear that reservists not on active duty, who have a remaining Reserve obligation, whether acquired voluntarily or involuntarily, will nonetheless not be discriminated against by their employees [sic] soley [sic] because of such Reserve affiliation. “It assures that these reservists will be entitled to the same treatment afforded their coworkers u)ithout such military obligation. “The law does not now protect these reservists against discharge without cause, as it does with inductees and enlistees, who have 1-year protection, and initial active duty for training reservists, who have 6 months’ protection.” Ibid, (emphasis added). The legislation was originally proposed by the Department of Labor. Accordingly, the testimony of Hugh W. Bradley, Director of the Office of Veterans’ Reemployment Rights of the Labor Department, who was the chief administration spokesman for the provision, is instructive. He described the relevant portions of the legislation to the House Committee on Armed Services: “The first provision of the bill deals with a problem that has been increasingly difficult in the past few years. It is designed to enable reservists and guardsmen who leave their jobs to perform training in the Armed Forces, to retain their employment and to enjoy all of the employment opportunities and benefits accorded their coworkers who do not have military training obligations. The law does not now protect them against discharge without cause as it does inductees and enlistees, who have 1-year protection, and initial active duty for training reservists, who have 6 months’ protection.” 1966 House Hearings, at 5312 (emphasis added). See also 1968 House Hearings, at 7471. Testimony by Rear Admiral Burton H. Shupper, U. S. N., appearing on behalf of the Department of Defense, also reflected the purposes behind the enactment: “The other aspect of H. R. 11509 is the provision that employees shall not be denied retention in employment or advantages of employment because of any obligation as a member of a Reserve component of the Armed Forces. After the Berlin and Cuba callups, we received information from our Reserve community that a significant number of reservists were receiving indications that opportunities for advancement and retention in civilian employment would favor those who appear to offer their employers more continuity of services, namely those in the Standby Reserve or those with no Reserve status. In fairness, we must emphasize that this reaction on the part of employers appears to be the exception not the rule and, we believe, is generally not based upon unpatriotic motives but rather on the competitive spirit of business.” 1966 House Hearings, at 5315. The legislative history thus indicates that § 2021 (b)(3) was enacted for the significant but limited purpose of protecting the employee-reservist against discriminations like discharge and demotion, motivated solely by reserve status. Congress wished to provide protection to reservists comparable to that already protecting the regular veteran from “discharge without cause” — to insure that employers would not penalize or rid themselves of returning reservists after a mere pro forma compliance with § 2024 (d). And the consistent focus of the administration that proposed the statute, and of the Congresses that considered it, was on the need to protect reservists from the temptation of employers to deny them the same treatment afforded their co-workers without military obligations. The petitioner’s contention that his employer was obliged to provide work-schedule preferences not available to other employees must be considered against this legislative background. C The petitioner’s argument is that the respondent corporation was obligated to make special efforts to schedule his work hours so he would avoid any lost time by reason of his reserve obligations. He does not allege that the respondent singled him out unfairly, or in any other way discriminated against him vis-á-vis other employees in the scheduling of work. Indeed, the petitioner’s argument would require work-assignment preferences not available to any nonreservist employee at the respondent’s refinery. The problem with the petitioner’s position is that there is nothing in § 2021 (b) (3) or its legislative history to indicate that Congress ever even considered imposing an obligation on employers to provide a special work-scheduling preference. Indeed, the legislative history, set out above, strongly suggests that Congress did not intend employers to provide special benefits to employee-reservists not generally made available to other employees. Congress, and the administration spokesman for the legislation, stated explicitly that reservists were to be entitled “to the same treatment afforded their coworkers not having such military obligations . . . .” S. Rep. No. 1477, 90th Cong., 2d Sess., 2 (1968); see also H. R. Rep. No. 1303, 89th Cong., 2d Sess., 3 (1966); 1968 House Hearings, at 7471 (testimony of Hugh W. Bradley). The strongest language culled by the petitioner from the legislative history to support his argument is a single passage in the 1966 House Report on H. R. 11509: “If these young men are essential to our national defense, then certainly our Government and employers have a moral obligation to see that their economic well being is disrupted to the minimum extent possible.” H. R. Rep. No. 1303, 89th Cong., 2d Sess., 3 (1966). But this generalized statement appears only in the 1966 House Report; it is not contained in either the House or the Senate Report that accompanied the bill as finally enacted in the 90th Congress. Compare ibid, with H. R. Rep. No. 1303, 90th Cong., 2d Sess., 3, 8 (1968), and S. Rep. No. 1477, 90th Cong., 2d Sess., 3 (1968). Moreover, language in the same 1966 House Report specifically indicated that only a nondiscrimination measure was intended: “It should be noted that the only substantive changes in existing law relate to . . . the prohibition against employer discrimination against reservists who participate in the Reserve or National Guard programs.” H. R. Rep. No. 1303, 89th Cong., 2d Sess., 4 (1966). It appears that the origin of the passage the petitioner relies on is a statement by Hugh W. Bradley before the House Committee in 1966. See 1966 House Hearings, at 5313. Yet this passage disappeared from Bradley’s presentation to both the House and Senate Committees in the subsequent Congress. See 1968 House Hearings, at 7471, 7472; 1968 Senate Hearings, at 2, 3. And in all three of his congressional appearances, Bradley made it abundantly clear that the purpose of the legislation was to protect employee reservists from discharge, denial of promotional opportunities, or other comparable adverse treatment solely by reason of their military obligations; there was never any suggestion of employer responsibility to provide preferential treatment. In any case, the language relied on by the petitioner hardly supports a finding that Congress intended §2021 (b)(3) to convert a generalized moral obligation into a specific legal duty. D Aside from a lack of support in legislative history, the petitioner’s argument suffers other flaws. While the present case involves absences for weekend duty, the statutory language is not so limited; it refers to “any obligation as a member of a Reserve component . . . .” Section 2021 (b)(3) has been applied, for example, to 2-week summer camps, Carney v. Cummins Engine Co., 602 F. 2d 763 (CA7); 6-week training sessions, Carlson v. New Hampshire Dept. of Safety, 609 F. 2d 1025 (CA1); and 2-month training sessions, Peel v. Florida Dept. of Transportation, 443 F. Supp. 451 (ND Fla.), aff’d, 600 F. 2d 1070 (CA5). Accordingly, there is no principled way of distinguishing between an employer’s obligation to make scheduling accommodations for weekends as opposed to, for example, annual 2-week training periods, or even longer periods of training or duty. And certainly there is nothing in the legislative history that would indicate Congress intended that reservists were to be entitled to all “incidents and advantages of employment” accorded during their absence to working employees, including regular time and overtime pay. The petitioner concedes that it might be impossible, or at least unduly burdensome, to accommodate a reservist’s absences for periods as long as the mandatory 2-week summer training session. Perhaps for this reason, he attempts to limit the obvious implications of his theory by arguing that “the statute only requires an employer to take reasonable steps to accommodate the reservists.” But, as is true of the petitioner’s more general affirmative obligation theory, there is nothing in the statute or its history to support such a notion. Indeed, a “reasonable accommodation” to employee-reservists because of missed worktime has already been made by Congress in § 2024 (d). There, Congress decided what allowance employers should make to reservists whose duties force them to miss time at work: provide them a leave of absence. If Congress had wanted to impose an additional obligation upon employers, guaranteeing that employee-reservists have the opportunity to work the same number of hours, or earn the same amount of pay that they would have earned without absences attributable to military reserve duties, it could have done so expressly. By contrast, there is no evidence that the Congress that enacted § 2021 (b)(3) showed any concern with the problem of missed work hours, let alone imposed any duty to “take reasonable steps to accommodate the reservists” in this or any other respect. The petitioner makes no suggestion why his theory of “reasonable accommodation” should apply only to “incidents or advantages of employment,” and not to the other provisions of §2021 (b)(3): retention and promotion. Presumably, if it applies to one provision of the section, it should apply to them all. But if an employer could, for example, defend a denial of promotion to an employee-reservist because the promotion could not be “reasonably accommodated,” the protection afforded by § 2021 (b)(3) would clearly be reduced, if not altogether eliminated. Finally, the petitioner suggests that §2021 (b)(3) must have the meaning he attributes to it, because the section would otherwise be of little significance. But the nondiscrimination requirements of the section impose substantial obligations upon employers. The frequent absences from work of an employee-reservist may affect productivity and cause considerable inconvenience to an employer who must find alternative means to' get necessary work done. Yet Congress has provided in § 2021 (b) (3) that employers may not rid themselves of such inconveniences and productivity losses by discharging or otherwise disadvantaging employee-reservists solely because of their military obligations. Ill This Court does not sit to draw the most appropriate balance between benefits to employee-reservists and costs to employers. That is the responsibility of Congress. If Congress desires to amend § 2021 (b) (3) to require special work-hour scheduling for military reservists where it is reasonably possible, it is free to do so. But we must deal with the law as it is. The respondent did not deny the petitioner anything that he would have received had he not been a reservist; He was scheduled for 40 hours work a week, as all other employees in the refinery were. He was assigned the same burden of weekend and shift work as were his fellow employees. And he was allowed to exchange shifts in the manner accepted by his union and the respondent, just as all other employees were. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. There is an apparent intercircuit conflict on this issue. Compare the case under review with West v. Safeway Stores, Inc., 609 F. 2d 147 (CA5). In oral argument, counsel for the respondent indicated that the petitioner was a member of the Ohio National Guard. This is not apparent in the record, but both Ready Reservists and National Guardsmen are equally entitled to the protection of 38 U. S. C. §2021 (b)(3). See S. Rep. No. 1477, 90th Cong., 2d Sess., 1, 5 (1968); H. R. Rep. No. 1303, 90th Cong., 2d Sess., 3, 6 (1968). Title 38 U. S. C. §2024 (d) provides in pertinent part: “Any employee . . . shall upon request be granted a leave of absence by such person’s employer for the period required to perform active duty for training or inactive duty for training in the Armed Forces of the United States. Upon such employee’s release from a period of such active duty for training or inactive duty for training, . . . such employee shall be permitted to return to such employee’s position with such seniority, status, pay, and vacation as such employee would have had if such employee had not been absent for such purposes. . . .” The Department of Justice represents the petitioner pursuant to 38 U. S. C. § 2022. Section 2021 (b)(3) provides: “Any person who holds a position described in clause (A) or (B) of subsection (a) of this section shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces.” The petitioner does not urge here that he had to be paid for hours not worked. There is no dispute that the respondent has complied with all relevant requirements of § 2024 (d). See n. 3, supra. This section compels employers to grant leaves of absence to employees who must attend reserve training, and entitles a reservist who has been absent for inactive reserve training to benefits upon his return, such as wage rates and seniority, which automatically would have accrued if he had remained in the continuous service of his employer. See Aiello v. Detroit Free Press, Inc., 570 F. 2d 145, 148 (CA6). It does not entitle a reservist to benefits that are conditioned upon work requirements demanding actual performance on the job. See ibid. See also Foster v. Dravo Corp., 420 U. S. 92. Thus, it is not contended that § 2024 (d) requires employers to pay absent reservists for hours not worked. Before their recodification in 1974, the veterans’ re-employment rights provisions were codified at 50 U. S. C. App. § 459 (1970 ed.) (§ 9 of the Military Selective Service Act of 1967). See Coffy v. Republic Steel Corp., 447 U. S. 191, 194, n. 2. Section 2021 (a) provides as follows: “In the case of any person who is inducted into the Armed Forces of the United States under the Military Selective Service Act [50 U. S. C. App. §§451-473] (or under any prior or subsequent, corresponding law) for training and service and who leaves a position (other than a temporary position) in the employ of any employer in order to perform such training and service; and (1) receives a certificate described in section 9 (a) of the Military Selective Service Act [50 U. S. C. App. §459 (a)] (relating to the satisfactory completion of military service), and (2) makes application for reemployment within ninety days after such person is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year— “(A) if such position was in the employ of the United States Gov-eminent, its territories, or possessions, or political subdivisions thereof, or the District of Columbia, such person shall— “(i) if still qualified to perform the duties of such position, be restored to such position or to a position of like seniority, status, and pay; or “(ii) if not qualified to perform the duties of such position, by reason of disability sustained during such service, but qualified to perform the duties of any other position in the employ of the employer, be offered employment and, if such person so requests, be employed in such other position the duties of which such person is qualified to perform as will provide such person like seniority, status, and pay, or the nearest approximation thereof consistent with the circumstances in such person’s case; “(B) if such position was in the employ of a State, or political subdivision thereof, or a private employer, such employee shall— “(i) if still qualified to perform the duties of such position, be restored by such employer or the employer’s successor in interest to such position or to a position of like seniority, status, and pay; or “(ii) [as in (A)(ii), supra, except for references to the 'employer’s successor in interest’].” The bill that included what became 38 U. S. C. § 2021 (b) (3) was introduced in the 89th Congress. H. R. 11509, 89th Cong., 1st Sess. (1965). Hearings were held before Subcommittee No. 3 of the House Committee on Armed Services in February 1966. Hearings on H. R. 11509 before Subcommittee No. 3 of the House Committee on Armed Services, 89th Cong., 1st Sess. (1966) (hereafter 1966 House Hearings). The bill was favorably reported by the full Committee, H. R. Rep. No. 1303, 89th Cong., 2d Sess. (1966), and was passed by the House on March 7, 1966, 112 Cong. Rec. 5016 (1966). No action, however, was taken on the measure by the Senate in the 89th Congress. The bill was reintroduced in the 90th Congress. H. R. 1093, 90th Cong., 1st Sess. (1967); S. 2561, 90th Cong., 1st Sess. (1967). Hearings were again held before Subcommittee No. 3 of the House Committee, on March 20, 1968. Hearings on H. R. 1093 before Subcommittee No. 3 of the House Committee on Armed Services, 90th Cong., 1st Sess. (1968) (hereafter 1968 House Hearings). The bill was favorably reported by the full Committee on April 24, 1968, H. R. Rep. No. 1303, 90th Cong., 2d Sess. (1968), and initially passed by the House on May 6, 1968, 114 Cong. Rec. 11779 (1968). Hearings were held by the Senate Committee on Armed Services on July 25, 1968. Hearings on H. R. 1093 before Senate Committee on Armed Services, 90th Cong., 2d Sess. (1968) (hereafter 1968 Senate Hearings). The bill was favorably reported by the Committee, S. Rep. No. 1477, 90th Cong., 2d Sess. (1968), on July 26, 1968, and passed the Senate on July 29, 1968, 114 Cong. Rec. 24017 (1968). The Senate concurred in the House amendment. Id., at 24999. The bill was signed into law on August 17, 1968. Pub. L. 90-491, 82 Stat. 790. The language of that portion of the bill which became §2021 (b)(3) was unchanged throughout its legislative consideration. There was no substantive discussion of the measure on the floor of either chamber. Accordingly, the key portions of the legislative history are the three hearings held on the proposed measure and the three Committee Reports. This same purpose was reflected in. a statement in support of the legislation by Austin E. Kerby, the Director of the National Economic Commission of the American Legion: “The American Legion feels very strongly that employees with reserve obligations who are members of the National Guard and the Reserves should not be denied retention in employment or promotional opportunities solely because of their participation in the Reserve Training Program. They should be afforded all the employment opportunities and benefits as those who do not have training obligations. The Reemployment Rights Statutes do not now protect National Guard members, and Reservists as it does inductees and enlistees, who have one-year protection, and initial active duty for training reservists who have six-months protection. “H. R. 1093 [H. R. 11509 as reintroduced in the 90th Congress, see n. 10, supra] would add a new section, 9 (c)(3), under the reemployment provisions of the Universal Military Training and Service Act which would prevent discharge from employment without cause because of membership in the National Guard or Reserves, and would also prevent discrimination in such areas as promotion, training opportunities and pay increases.” 1968 Hearings, at 7477 (emphasis added). One could argue, of course, that “protection . . . against certain types of discharges or demotions that might rob the veteran’s reemployment of its substance,” Oakley v. Louisville & Nashville R. Co., 338 U. S. 278, 285 (in reference to § 2021 (b) (2) but equally relevant here) amounts to preferential treatment. But this sort of treatment, clearly intended by the statute and its legislative history, is better understood as protection against discrimination that would not have occurred were it not for reserve obligations, than as preferential treatment accorded solely because of reserve status. The legislative history is barren of any indication that Congress intended employers to compensate employees for work hours missed while fulfilling militar}? reserve obligations, which would of course amount to employee receipt of double compensation for such periods. The Veterans’ Reemployment Rights Handbook, published by the Office of Veterans’ Reemployment Rights in 1970 and still in use today, notes that “[t]he law does not require the employer to' pay the employee for the time he is absent for military training duty, or even to make up the difference between his military pay and his regular earnings for that period. In this respect, of course, many employers have adopted voluntary policies or contractual obligations, or are subject to State statutes, which give reservists and guardsmen more than the statute [38 U. S. C. § 2021 et seq.] requires.” Id., at 113. And in the many examples in the Handbook addressed to typical problems an employer may confront because of employee military obligations, there is not so much as a hint that an employer has an obligation to adjust an employee’s work schedule to make up for time lost because of military obligations. Section 403 of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, Pub. L. 93-508, 88 Stat. 1594, for example, made specific revisions to the existing provisions of the veterans’ re-employment rights laws that impose explicit obligations upon employers with respect to certain disabled veterans of the Vietnam era. 38 U. S. C. §2012. See S. Conf. Rep. No. 93-1107, p. 34 (1974). See also S. Conf. Rep. No. 93-1240, p. 34 (1974); H. R. Conf. Rep. No. 93-1303, p. 34 (1974); H. R. Conf. Rep. No. 93-1435, p. 35 (1974). Cf. Southeastern Community College v. Davis, 442 U. S. 397, 410-411. We note that the collective agreement between the respondent and the petitioner’s union stated that it “defines the normal hours of work and shall not be construed as a guarantee of hours of work per day or per week or of days of work per week.” Of course, nothing in this opinion prevents an employer from providing special scheduling accommodation to employee-reservists. See n. 14, supra. 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:
songer_state	56	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". BOOSTER LODGE NO. 405, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, The Boeing Company, Intervenor. The BOEING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor. Nos. 24687, 24744. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 15, 1971. Decided Feb. 3, 1972. Mr. Bernard Dunau, Washington, D. C., with whom Messrs. Plato E. Papps, Washington, D. C., and C. Paul Barker, New Orleans, La., were on the brief, for petitioner in No. 24,687 and intervenor in No. 24,744. Mr. C. Dale Stout, New Orleans, La., for petitioner in No. 24,744 and interve-nor in No. 24,687. Mr. Glen M. Bendixsen, Atty., National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Washington, D. C., at the time the brief was filed, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Stanley R. Zirkin, Atty., National Labor Relations Board, were on the brief, for respondent. Before MacKINNON and WILKEY, Circuit Judges, and GOURLEY, Senior District Judge for the Western District of Pennsylvania. Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970). MacKINNON, Circuit Judge: In this case, we are called upon to examine the right of a labor organization, consonant with the provisions of the National Labor Relations Act (N.L.R.A.), to discipline those members who have crossed its picket line to work during an authorized strike. We must determine the effect which a member’s resignation from the union, before, during, or after such conduct, has upon the union’s disciplinary authority. We are also requested to consider the legal implications of the “reasonableness” of the fines imposed, where the union has threatened enforcement thereof, or has actually sought collection through legal means. The essential facts are not in dispute. Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (hereinafter sometimes referi’ed to as the Union), and The Boeing Company, (hei’einafter sometimes referred to as the Company), were parties to a collective bargaining agreement which was effective from May 16, 1963, through September 15, 1965. Upon the expiration of the contract, the Union commenced a lawful strike against Boeing at its Michoud plant, as well as at various other locations. This work stoppage lasted 18 days. On October 2, 1965, a new bargaining agreement was signed, and the economic strikers returned to work the following day. Both the expired agreement and the newly executed contract contained maintenance-of-membership clauses, which required all new employees to notify both the Union and the Company within 40 days of their acceptance of employment if they elected not to become Union members. It also required those who were Union members to retain their membership during the contract term. During the strike period, approximately 143 employees, of the 1900 production and maintenance employees represented by the Union at the Michoud plant, crossed the picket line and reported to work. All of these persons had been Union members during the 1963-1965 contract period. Some of the employees who worked during the strike made no attempt to resign from the Union during the strike. The remaining 119 submitted their voluntary resignations, in writing, to both the Union and the Company. About 61 of the employees who resigned did so before they crossed the picket line and returned to work. Another 58 resigned during the course of the strike, but after they had crossed'the picket line in order to work. All resignations were submitted after the expiration of the 1963-1965 contract, and before the execution of the new agreement, and all wei’e submitted prior to the imposition of any Union discipline. Union members had not been warned prior to the strike that disciplinary measures could, or would, be taken against those who ei-ossed the picket line to woi’k, nor had any such discipline been imposed on members by Booster Lodge 405 prior to this time. In late October or early November of 1965, the Union notified all members and former members who had crossed the picket line to work during the strike that charges had been preferred against them under the International Union Constitution, for “Improper Conduct of a Member” due to their having “accept[ed] employment ... in an establishment where a strike exist [ed].” They were advised of the dates of their Union trials, which were to be held even in their absence if they did not appear, and they were notified of their right to be represented by any counsel who was a member of the International Association of Machinists and Aerospace Workers. Pursuant to the International Union Constitution provision which permitted the imposition of disciplinary measures, including “reprimand, fine, suspension, or expulsion from membership, or any lesser penalty or combination,” where a member had been found guilty of misconduct after notice and a hearing, fines were imposed on all employees who had worked during the strike. No distinction was drawn between those persons who had resigned from the Union during the course of the strike and those who had remained Union members. Employees who did not appear for trial before the Union Trial Committee and those who appeared but were found guilty were fined $450.00 each, the amount determined by the membership, and they were barred from holding a Union office for a period of 5 years. The fines of about 35 employees who appeared for trial, apologized, and pledged loyalty to the Union, were reduced to 50 percent of the earnings they received during the strike. In some of these cases the time period during which these persons were prohibited from holding Union office was decreased to a period based upon the number of days of strikebreaking activity each respective person had engaged in. None of the disciplined individuals processed intra-Union appeals. Although none of the $450.00 fines has been paid, reduced fines have been paid in some instances. The Union has sent out written notices that the matter has been referred to an attorney for collection, that suit will be filed if the fines remain unpaid, and that reduced fines will be reinstated to $450.00 in the event of nonpayment. The Union has also filed suit against nine individual employees to collect the fines (plus attorney’s fees and interest). None of these suits has yet been resolved. On February 18, 1966, the Company filed a charge with the N.L.R.B., alleging that the Union had violated Section 8(b) (1) (A) of the N.L.R.A., and a complaint was issued by the General Counsel. The Labor Board decided that the Union violated section 8(b) (1) (A): (1) by fining those employees who had resigned from the Union before they returned to work during the strike; and (2) by disciplining those employees who had resigned after returning to work, to the extent that the fines were imposed for their working during the strike after their resignations. The Board further found that the Union did not violate the Act (3) by fining members for crossing the picket line to work, and by fining those employees who had resigned after returning to work during the strike, for work .they performed during the strike prior to their resignations. Finally, the Board determined (4) that it was not the intention of Congress to have the N.L.R.B. regulate the size of such disciplinary fines and establish standards with respect to their reasonableness, and it dismissed the claim that otherwise legal fines may be rendered violative of the N.L.R.A. if unreasonably large. A cease and desist order was issued, and the Union was ordered to refund any fines collected from employees who had resigned before returning to work. The Union was also required to refund a pro rata portion of those fines collected from employees who had resigned after first engaging in work during the strike, so that the part of the fines retained would only reflect pre-resignation conduct. Booster Lodge 405 challenges the Board’s conclusion that a mid-strike resignation from a union relieves an individual from the burden of union discipline with respect to his post-resignation activity, while The Boeing Company contends that the N.L.R.B. should have examined the reasonableness of the fines imposed by the Union. The Board seeks enforcement of its order. Part I of this opinion discusses the legality of the imposition of the disciplinary fines by the Union in response to the strikebreaking by the approximately 143 employees involved. Part II considers the effect the reasonableness of the fines has upon their propriety under the N.L.R.A., and the proper function of the N.L.R.B. in this area. Finally, Part III deals with the propriety of the Board’s remedial order. I The Legality of the Disciplinary Fines A. The Employees Who Did Not Resign As early as 1954, in Minneapolis Star and Tribune Co., 109 NLRB 727 (1954), the Labor Board held that a union did not violate Section 8(b) (1) (A) of the Act by imposing a fine on a member for his failure to perform picket duty during the course of an authorized strike. The Board declared that the proviso to 8(b) (1) (A) precluded any interference by it with the internal affairs of a labor organization in such a situation. In N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967), a divided Supreme Court similarly determined that a union did not violate the N.L.R.A. when it imposed, and attempted to enforce through court action, reasonable fines against members for their failure to honor an authorized picket line. Instead of relying upon the express language of the proviso, however, the Supreme Court carefully analyzed the entire legislative history of Section 8(b) (1) (A), and it concluded that Congress did not intend to prohibit such internal union discipline by the prohibition against “restraint” or “coercion.” See 388 U.S. at 183-195, 87 S.Ct. 2001. The Court noted: National labor policy has been built on the premise that by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working conditions. The policy therefore extinguishes the individual employee’s power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interests of all employees. “Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents ...” 388 U.S. at 180, 87 S.Ct. at 2006. See J. I. Case Co. v. N.L.R.B., 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944). The Court further stated: Integral to this federal labor policy has been the power in the chosen union to protect against erosion [of] its status under that policy through reasonable discipline of members who violate rules and regulations governing membership. That power is particularly vital when the members engage in strikes. The economic strike against the employer is the ultimate weapon in labor’s arsenal for achieving agreement upon its terms, and “[t]he power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent ft 388 U.S. at 181, 87 S.Ct. at 2007. In more recent decisions, the Supreme Court has reaffirmed the right of a union to impose and enforce reasonable fines against members who engage in strikebreaking activities. In Scofield v. N.L.R.B., 394 U.S. 423, 428-430, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969), the Court emphasized the right of a union to enforce a properly adopted rule which reflects a legitimate union interest, impairs no statutory labor policy, and is reasonably enforced against union members. See N.L.R.B. v. Industrial Union of Marine etc. Workers, 391 U.S. 418, 423, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968). See also Rocket Freight Lines Co. v. N.L.R.B., 427 F.2d 202, 205-206 (10th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 241, 27 L.Ed.2d 246 (1970); Silard, Labor Board Regulation of Union Discipline After Allis-Chalmers, Marine Workers and Scofield, 38 Geo.Wash.L. Rev. 187 (1969). In light of these developments, it is clear that the Union acted within the sphere of its lawful authority when it decided to impose fines on the 24 strikebreaking members who did not resign from the Union. Similarly, the Union’s threats to enforce these fines, as well as its actual efforts to achieve court enforcement thereof, were not prohibited by the N.L.R.A. However, a more difficult question arises with respect to the 119 employees who resigned from the Union during the strike period. B. The Employees Who Did Resign As the Supreme Court recognized in Allis-Chalmers, when Section 8(b) (1) (A) was enacted, “Congress was operating within the context of the ‘contract theory’ of the union-member relationship which widely prevailed at that time.” N.L.R.B. v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 192, 87 S. Ct. at 2013. See International Association of Machinists v. Gonzales, 356 U.S. 617, 618, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958). Under this theory union membership was deemed in effect to create a “contract” between the labor organization and the member which imposed certain obligations on the member, and the decision emphasized “that ‘The courts’ role is but to enforce the contract.’ ” 388 U.S. at 182, 87 S.Ct. at 2008. See Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L.J. 175, 180 (1960). It is, therefore, obvious that membership in the labor organization is the sine qua non to the authority of a union to impose disciplinary burdens upon the employees it represents. This has been widely recognized. In Allis-Chalmers, the Court expressly limited its holding to “reasonable discipline of members who violate rules and regulations governing membership.” N.L.R.B. v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 181, 87 S.Ct. at 2007 (emphasis supplied). See also id. at 195-196. The Labor Board specifically recognized this indispensable prerequisite in Scofield, 145 NLRB 1097, 1104 (1964), where it noted that “[a] union rule that a member is subject to a fine if he [violates a valid union rule] does not mean that he is subject to such a fine as an employee.” (Emphasis in original.) This membership requirement for union disciplinary authority was affirmed by the Supreme Court in Scofield v. N.L.R.B., 394 U.S. 423, 429, n. 5, 89 S.Ct. 1154, 1157, 22 L.Ed.2d 385: As an employee, [an individual] may be a “good, bad, or indifferent” member so long as he meets the financial obligations of the union security contract. * * * But as a union member, so long as he chooses to remain one, he is subject to union discipline. (Emphasis supplied.) See 394 U.S. at 435, 89 S.Ct. at 1160. Thus the Court recognized that “union members . . . are free to leave the union and escape the [union] rule.” Id. at 430, 89 S.Ct. at 1158. It is therefore apparent that Booster Lodge U05 only had the authority to discipline those employees who were in fact Union members at the time they engaged in the complained of activity. Approximately 58 of the employees who worked during the strike submitted their resignations to the Union after they had already engaged in some of the conduct proscribed by the International Union Constitution. In light of the above discussion regarding union authority over action undertaken by full members, we must concur in the Board’s determination that the Union did not violate Section 8(b) (1) (A) so far as its imposition of disciplinary fines concerned this preresignation conduct. The fact that the fines were not officially imposed for these pre-resignation breaches of Union regulations until after the strikebreakers had resigned, in no way negated the authority of the Union over these persons with respect to these acts, as the N.L.R.B. properly recognized. The provisions of a contract are enforceable, and a cause of action can be brought upon them, even after the expiration or termination of the agreement. The rights and duties created by an agreement are extinguished only prospectively by the termination thereof. Thus the termination of some employees’ membership here did not affect the Union’s subsequent assertion of rights which had accrued to the Union during their earlier period of membership, such as the right to discipline the employees for prior strikebreaking. The effect of these employees’ resignations was only to extinguish the Union’s future authority over them. Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, 185 NLRB No. 23, 1970 CCH NLRB ¶ 22,259, at p. 28,693 (1970). C. Fines Imposed for Post-resignation Conduct An extremely difficult question is presented with respect to the fines which were imposed upon employees for their posi-resignation conduct. Booster Lodge 405 has made a sophisticated argument which would expose persons who were members at the commencement of a particular strike to union discipline with respect to any strikebreaking action undertaken during that specific work stoppage. Although it concedes that such a restriction is not contained in any of the express language of the International Union Constitution or Bylaws, the Union urges this court to “flesh out” such documents by imposing such an obligation by implication. We must decline this invitation. It must be emphasized that in situations like this, while “the function of the court is to determine, as far as is possible, the intention of the contracting parties and to give legal effect thereto,” it is generally recognized that courts will not usually imply offenses not specified in a union’s constitution or by-laws. We believe that this latter consideration is controlling with respect to the instant case. As the union recognizes, there is nothing in the record which evidences any intention on the part of the approximately 119 persons who resigned during the strike in question that their initial acceptance of Union membership would impose upon them the type of continuing obligation which Booster Lodge 405 now asks this court to impose. Furthermore, the very fact that they resigned during this period, in an obvious attempt to escape the disciplinary authority of the Union, belies this proposed line of reasoning. In addition, an extremely important national labor policy militates against the imposition of such an implied obligation. Section 7 of the N.L.R. A. expressly protects the right of any employee to refrain from any or all of the concerted activities guaranteed to employees under the Act. While Allis-Chalmers and Scofield recognized the legality of certain express union provisions limiting an employee’s freedom where he had voluntarily accepted full union membership, nothing in those decisions supports the Union’s theory of implied, post-resignation restrictions. In fact, language in Scofield expressly indicates otherwise. The Supreme Court only recognized the right of a union “to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule.” Scofield v. N.L.R.B., supra, 394 U.S. at 430, 89 S.Ct. at 1158 (emphasis supplied). As the Board properly concluded below, after resignation, “[b]oth the member’s duty of fidelity and the union’s corresponding right to discipline him for breach of that duty are extinguished.” Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, supra, 1970 CCH NLRB ¶ 22,259, at p. 28,692. The Union has relied heavily upon the First Circuit’s holding in N.L.R.B. v. Granite State Joint Board, Textile Workers Union, Local 1029, 446 F.2d 369 (1st Cir.1971), but we believe that the decision is inapposite to the present fact situation. Although the court in Granite State upheld the right of the union involved to impose fines on strikebreakers for post-resignation activity, it emphasized that a specific set of facts was present which it believed rendered such a result equitable, and it specifically recognized that these considerations were not present with respect to the instant Booster Lodge 405 case. In Granite State, the Board conceded that all of the fined employees had voted in favor of the strike in question. It is also important to note that the fines had not been imposed pursuant to a general provision in the union constitution, as here, but rather in accordance with a specific proclamation which had been unanimously adopted by the membership after the work stoppage commenced. See 446 F.2d at 370, 372 n. 5. Furthermore, all of those who were disciplined in Granite State had been expressly pre-warned of possible punishment for strikebreaking, while the employees with whom we are herein concerned received no such pre-strikebreaking notification. Because of these distinguishing facts, we refuse to apply the rationale of Granite State to the instant factual situation. The strong equities which weighed in favor of the union there, are clearly not present here. In fact, their very absence powerfully supports the result which we have accepted. Since the International Union Constitution and By-laws contained no express restriction upon a member’s right to resign it is clear that the strikebreaker/employees were free to resign at will, subject only to their being bound by any permissible collective bargaining agreement provision limiting this right. Local Union 621, United Rubber, Cork, Linoleum and Plastic Workers of America, 167 NLRB 610 (1967); Communications Workers v. N.L.R.B., 215 F.2d 835 (2d Cir.1954); N.L.R.B. v. Mechanical and Allied Produc tion Workers, Local 444, 427 F.2d 883 (1st Cir.1970). Furthermore, since the resignations all occurred after the termination of the 1963-1965 agreement and before the execution of the new contract, the maintenance-of-membership provision was not applicable to limit this right either. N.L.R.B. v. Mechanical and Allied Production Workers, Local 444, supra, 427 F.2d at 884-885; N.L.R.B. v. Granite State Joint Board, Textile Workers Union, Local 1029, supra, 446 F.2d at 372. Under these circumstances we concur in the reasoning of the Second Circuit in Communications Workers v. N.L.R.B., supra, 215 F.2d at 838: We agree that the proviso [to § 8(b) (1) (A)] protects the Union’s right to make its own rules with respect to membership, but assuming, arguendo, that a rule wholly prohibiting voluntary resignations would be valid, we think that in the absence of any rule on the subject of voluntary resignation, the proviso is inapplicable. Concededly the Union Constitution and by-laws are absolutely silent as to whether a member can voluntarily resign. Hence we think that the common law doctrine on withdrawal from voluntary associations is apposite. Under that doctrine, a member of a voluntary association is free to resign at will, subject of course to any financial obligations due and owing the association, [citations omitted] For the reasons set out above, we conclude that the Labor Board correctly determined that “the Union’s right to discipline employees terminated upon the employees’ submission of their letters of resignation [, thus t]he attempted imposition of discipline for subsequent conduct was beyond the powers of the Union.” Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, supra, 1970 CCH NLRB ¶ 22,259, at p. 28,692. We therefore affirm the Board’s finding that the Union violated Section 8(b) (1) (A) of the N.L.R.A. by imposing fines upon employees, and by threatening or attempting enforcement of such fines, because of those employees’ post-resignation conduct in working at the Company plant during the authorized work stoppage. Since the imposition of fines under such circumstances violated the policies underlying the N.L.R.A. and had effects outside the area of internal Union affairs, they were clearly “coercive” within the meaning of Section 8(b) (1) (A). See N.L.R.B. v. Industrial Union of Marine etc. Workers, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968); District 50, Local 12419, 176 NLRB No. 89, 71 LRRM 1311 (1969); Local 138, International Union of Operating Engineers, AFL-CIO, 148 NLRB 679 (1964). See also International Molders and Allied Workers, Local 125, 178 NLRB 208, 72 LRRM 1049 (1969), enfd., 442 F.2d 92 (7th Cir.1971). We thus grant enforcement of the N.L.R.B.’s cease and desist order so far as it concerns the imposition of fines for post-resignation conduct. II The Board’s Duty to Determine the Reasonableness of Fines In its decision below, the N.L.R.B. relied upon a companion case, International Association of Machinists and Aerospace Workers, Local 504 [Arrow Development Co.], 185 NLRB No. 22, 75 LRRM 1008 (19 70), in concluding that a fine’s "reasonableness” has no effect upon its legality under the N.L. R.A. This conclusion was based upon the Board’s belief that Congress did not intend to empower the Labor Board with the authority to examine the severity of union discipline when ascertaining its legality, and it indicated that it thought that local courts were the most logical tribunals for the establishment of standards of reasonableness. The Board therefore refused to examine the question of reasonableness in the present case, despite an express determination by the Trial Examiner that the imposed fines were impermissibly excessive. We reject the position of the Board, and remand the case for further proceedings in conformity with the views set out below. The Board’s belief that it does not have the obligation of examining the reasonableness of union fines in Section 8(b) (1) (A) proceedings is based upon a clear misconception of the law and the Supreme Court’s relevant decisions. In Allis-Chalmers, the Court stated: It is no answer that the proviso to § 8(b) (1) (A) preserves to the union the power to expel the offending member. Where the union is strong and membership therefore valuable, to require expulsion of the member visits a far more severe penalty upon the member than a reasonable fine. N.L.R.B. v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 183, 87 S.Ct. at 2008 (emphasis supplied). The Court further recognized that “the proviso preserves the rights of unions to impose fines, as a lesser penalty than expulsion ...” 388 U.S. at 191-192, 87 S.Ct. at 2012 (emphasis supplied). This implicitly recognized that, for a disciplinary fine to be less coercive than expulsion from the union, the fine imposed must be a “reasonable” one, for it is intuitively obvious that enforcement of a grossly excessive fine might visit a far greater burden upon an individual than would mere expulsion. The Supreme Court also expressly recognized this fact in its recent Scofield decision, wherein it concluded that the enforcement of a proper union rule “by reasonable fines does not constitute the restraint or coercion proscribed by § 8(b) (1) (A).” Scofield v. N.L.R.B., supra, 394 U.S. at 436, 89 S.Ct. at 1161 (emphasis supplied). The Scofield Court emphasized that under Allis-Chalmers, “[a] union rule, duly adopted and not the arbitrary fiat of a union officer, forbidding the crossing of a picket line during a strike [is] . . . enforceable against voluntary union members by expulsion or a reasonable fine.” 394 U.S. at 428, 89 S. Ct. at 1157 (emphasis supplied). In light of the Court’s emphasis on the requ i remen t of “reasonable fines” if a union is to avoid a violation of the Act in these circumstances, we must conclude that the imposition of an unreasonably large fine, at least where the union threatens or actually attempts court enforcement of the fine, may be coercive and restraining within the meaning of section 8(b) (1) (A). Since the imposition of an unreasonably excessive disciplinary fine is violative of Section 8(b) (1) (A), it is clearly the obligation of the N.L.R.B. to resolve the question of reasonableness where such an issue is appropriately raised. The Board asserts that such a result might cause conflicts between it and state courts which attempt to examine the reasonableness issue in actions to collect such fines. However, we do not believe that this possible problem detracts from the Board’s obligation under the N.L.R.A. We recognize that “state courts have been adjudicating internal union disputes for more than 60 years.” Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L. J. 175 (I960). We further acknowledge the fact that “the state courts, in reviewing the imposition of union discipline, find ways to strike down ‘discipline, [which] involves a severe [monetary] hardship.’ ” However, these considerations do not relieve the N.L.R. B. of its duties under the N.L.R.A. “[T]he business of the Board, among other things, is to adjudicate and remedy unfair labor practices. Its authority to do so is not ‘affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise . . .’ § 10(a), ... 29 U.S.C. § 160(a).” N.L.R.B. v. Strong, 393 U.S. 357, 360, 89 S.Ct. 541, 544, 21 L.Ed.2d 546 (1969). See Office and Professional Employees International Union, Local 425 v. N.L.R.B., 136 U.S.App.D.C. 12, 15-16, 419 F.2d 314, 317-318 (1969). Furthermore, the fact that some state courts might not permit enforcement of excessive fines in a collection action by the union, does not detract from their coerciveness, or the need for N.L.R.B. action. N.L.R. B. v. American Bakery and Confectionery Workers, Local 300, 411 F.2d 1122, 1126 (7th Cir.1969). See Local Union No. 167, Progressive Mine Workers of America v. N.L.R.B., 422 F.2d 538, 542 (7th Cir.), cert. denied, 399 U.S. 905, 90 S.Ct. 2198, 26 L.Ed.2d 560 (1970). Other factors also support the conclusion that Board intervention is authorized in this very limited area, despite the historical activity of state courts and the reluctance of the 80th Congress to interfere in the internal affairs of unions. There is something to be said for having the reasonableness of fines determined by standards that are as nearly uniform as national standards promulgated by the N.L.R.B. can be. Furthermore, access to the Labor Board is more readily available than meaningful access to state courts. Before the Board, the employee is represented by the General Counsel, and the agency bears the expense of the litigation. If the same employee wants a complete resolution of the reasonableness issue in a state 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_usc2	29	What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 29. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. NATIONAL LABOR RELATIONS BOARD v. NATIONAL NEW YORK PACKING & SHIPPING CO., Inc. No. 140. Circuit Court of Appeals, Second Circuit. Nov. 2, 1936. Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, David A. Moscovitz, Mary L. Schleifer, A. Norman Somers, Gerhard P. Van Arkle, and Philip Levy, ail of Washington, D. C., for petitioner. Samuel J. Rosensohn, of New York City, for respondent. Before MANTON, L. HAND, and SWAN, Circuit Judges. PER CURIAM. An order issued by the petitioner pursuant to section 10, National Labor Relations Act (49 Stat. 449, 29 U.S.C. § 160 [29 U.S.C.A. § 160]) directed the respondent, after complaint and hearing, to reinstate five employees, in its -place of business in New York with back pay. They were discharged because, as found by the Board, they had joined and assisted a labor organization. The order of reinstatement was based upon a finding that the respondent is engaged in unfair labor practices affecting commerce, as defined in section 8, subsecs. (1) and (3) of the act, 29 U.S. C.A. § 158 (1, 3), and section 2, subsecs. (6) and (7) of the act, 29 U.S.C.A. § 152 (6, 7). The Board found that the respondent is engaged in interstate commerce and commerce with foreign countries. It made findings that the respondent had discriminated in regard to the hire and tenure of the employment of five employees, thereby discouraging membership in a labor union; that by interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed by section 7 of the act (29 U.S.C.A. § 157) it had engaged in unfair labor practices within the meaning of section 8, subsec. 1 (29 U.S.C.A. § 158 (1); further, that such unfair labor practices “occurred in commerce and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.” The findings of the Board, having evidence to support them, are conclusive upon this court. Section 10 (e) of the act (29 U.S.C.A. § 160 (e); National Labor Relations Board v. Associated Press, 85 F.(2d) 56 (C.C.A.2). Respondent’s business consists of the consolidating and arranging for transportation of packages, which are already on an interstate journey pursuant to a contract of sale between buyer and seller. The purpose is to obtain bulk rates for transportation. Ninety percent of the shipments are to buyers in other states. The only change which occurs in' the transitory stop, that of uniting into single and larger packages, is intended to facilitate and render more economical the shipment of merchandise. Respondent, acting as agent for out-of-state buyers, is engaged in interstate transactions which fall within the sphere of federal power. Texas Transp. & Terminal Co. v. New Orleans, 264 U.S. 150, 44 S.Ct. 242, 68 L.Ed. 611, 34 A.L.R. 907; McCall v. California, 136 U.S. 104, 10 S.Ct. 881, 34 L.Ed. 391. Undoubtedly, the mere fact that goods are intended to be transported interstate does not bring their production or manufacture under the Commerce Clause (Const, art. 1, § 8, cl. 3). Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160. Nor does an interstate journey justify federal regulation of local activity which follows the termination of that journey. Schechter Poultry Corporation v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R, 947. But there is a region of intrastate activity, tied up with interstate transportation and communication, in which federal power may properly operate and from which state regulation may be barred. Dahnke-Walker Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239; Lemke v. Farmers’ Grain Co., 258 U.S. 50, 42 S.Ct. 244, 66 L.Ed. 458; International Text-Book Co. v. Pigg, 217 U.S. 91, 30 S. Ct. 481, 54 L.Ed. 678, 27 L.R.A.(N.S.) 493, 18 Ann. Cas. 1103. Moreover, there is a continuity of transit from seller to buyer in which the respondent participates. The transitory stop does not break the interstate journey. Carson Petroleum Co. v. Vial, 279 U.S. 95, 49 S.Ct. 292, 73 L.Ed. 626. “It was merely halted as a convenient step in the process of getting it to its final destination.” Binderup v. Pathé Exchange, 263 U.S. 291, 309, 44 S.Ct. 96, 99, 68 L.Ed. 308. The motion for enforcement is granted. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 29. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:
sc_issuearea	A	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. LEHMAN, SECRETARY OF THE NAVY v. NAKSHIAN No. 80-242. Argued March 31, 1981 Decided June 26, 1981 Stew ART, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, and Rehnquist, JJ., joined. BreNNAN, J., filed a dissenting opinion, in which Marshall, BlackmtjN, and SteveNS, JJ., joined, post, p. 169. Edwin S. Kneedler argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Acting Assistant Attorney General Martin, Deputy Solicitor General Getter, Robert E. Kopp, and Michael Jay Singer. Patricia J. Barry argued the cause and filed a brief for respondent. Briefs of amici curiae urging affirmance were filed by Mary E. Jacksteit for the American Federation of Government Employees (AFL-CIO); and by Congressman Claude Pepper, pro se, and Edward F. Howard for Mr. Pepper et al. Justice Stewart delivered the opinion of the Court. The question presented by this case is whether a plaintiff in an action against the United States under § 15 (c) of the Age Discrimination in Employment Act is entitled to trial by jury. I The 1974 amendments to the Age Discrimination in Employment Act of 1967 added a new § 15, which brought the Federal Government within the scope of the Act for the first time. Section 15 (a) prohibits the Federal Government from discrimination based on age in most of its civilian employment decisions concerning persons over 40 years of age. Section 15 (b) provides that enforcement of § 15 (a) in most agencies, including military departments, is the responsibility of the Equal Employment Opportunity Commission. The Commission is directed to “issue such rules, regulations, orders and instructions as [the Commission] deems necessary and appropriate” to carry out that responsibility. Section 15 (c) provides: “Any person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this Act.” 88 Stat. 75. In 1978, respondent Alice Nakshian, who was then a 62-year-old civilian employee of the United States Department of the Navy, brought an age discrimination suit against the Navy under § 15 (c). She requested a jury trial. The defendant moved to strike the request, and the District Court denied the motion. Nakshian v. Claytor, 481 F. Supp. 159 (DC). The court stressed that the “legal or equitable relief” language used by Congress to establish a right to sue the Federal Government for age discrimination was identical to the language Congress had previously used in § 7 (c) of the Act to authorize private ADEA suits. That language, the District Court said, was an important basis for this Court’s holding in Lorillard v. Pons, 434 U. S. 575, that § 7 (c) permits jury trials in private suits under the Act. The court stated that “if Congress had intended its consent to ADEA suits [against the Government] to be limited to non-jury trials, it could have easily said as much.” 481 F. Supp., at 161. Recognizing that as a result of 1978 amendments to the ADEA § 7 (c) (2) expressly confers a right to jury trial, whereas no such language exists in § 15, 481 F. Supp., at 161, the court found no “explicit refusal” by Congress to grant the right to jury trial against the Government, and noted that the legislative history of the 1978 amendments spoke in general terms about a right to jury trial in ADEA suits. On interlocutory appeal under 28 U. S. C. § 1292 (b), a divided panel of the Court of Appeals affirmed. Nakshian v. Claytor, 202 U. S. App. D. C. 59, 628 F. 2d 59. The appellate court rejected the Secretary’s argument that a plaintiff is entitled to trial by jury in a suit against the United States only when such a trial has been expressly authorized. Instead, the court viewed the question as “an ordinary question of statutory interpretation,” and found sufficient evidence of legislative intent to provide for trial by jury in cases such as this. Noting that Congress had conferred jurisdiction over ADEA suits upon the federal district courts, rather than the Court of Claims, the Court of Appeals concluded that “ ‘absent a provision as to the method of trial, a grant of jurisdiction to a district court as a court of law carries with it a right of jury trial.’ ” Id., at 63, 628 F. 2d, at 63 (quoting 5 J. Moore, J. Lucas, & J. Wicker, Moore’s Federal Practice ¶ 38.32 [2], p. 38-236 (1979) (footnotes omitted)). The Court of Appeals also adopted the District Court’s view of the “legal . . . relief” language in § 15 (c). Further, it was the court’s view that the existence of the explicit statutory right to jury trial in suits against private employers does not negate the existence of a right to jury trial in suits against the Government, since the provision for jury trials in private suits was added only to resolve a conflict in the Courts of Appeals on that issue and to confirm the correctness of this Court's decision in the Lorillard case. We granted certiorari to consider the issue presented. Sub nom. Hildalgo v. Nakshian, 449 U. S. 1009. II It has long been settled that the Seventh Amendment right to trial by jury does not apply in actions against the Federal Government. In Galloway v. United States, 319 U. S. 372, 388-389, the Court observed (footnotes omitted): “The suit is one to enforce a monetary claim against the United States. It hardly can be maintained that under the common law in 1791 jury trial was a matter of right for persons asserting claims against the sovereign. Whatever force the Amendment has therefore is derived because Congress, in the legislation cited, has made it applicable.” See also Glidden Co. v. Zdanok, 370 U. S. 530, 572; McElrath v. United States, 102 U. S. 426, 440. Moreover, the Court has recognized the general principle that “the United States, as sovereign, 'is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.’ ” United States v. Testan, 424 U. S. 392, 399, quoting United States v. Sherwood, 312 U. S. 584, 586. See also United States v. Mitchell, 445 U. S. 535, 538. Thus, if Congress waives the Government’s immunity from suit, as it has in the ADEA, 29 U. S. C. § 633a (1976 ed. and Supp. III), the plaintiff has a right to a trial by jury only where that right is one of “the terms of [the Government’s] consent to be sued.” Testan, supra, at 399. Like a waiver of immunity itself, which must be “unequivocally expressed,” United States v. Mitchell, supra, at 538, quoting United States v. King, 395 U. S. 1, 4, “this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Soriano v. United States, 352 U. S. 270, 276. See also United States v. Kubrick, 444 U. S. 111, 117-118; United States v. Sherwood, supra, at 590-591. When Congress has waived the sovereign immunity of the United States, it has almost always conditioned that waiver upon a plaintiff's relinquishing any claim to a jury trial. Jury trials, for example, have not been made available in the Court of Claims for the broad range of cases within its jurisdiction under 28 U. S. C. § 1491 — i. e., all claims against the United States “founded either upon the Constitution, or any Act of Congress, ... or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” See Glidden Co., supra. And there is no jury trial right in this same range of cases when the federal district courts have concurrent jurisdiction. See 28 U. S. C. §§ 1346 (a)(2) and 2402. Finally, in tort actions against the United States, see 28 U. S. C. § 1346 (b), Congress has similarly provided that trials shall be to the court without a jury. 28 U. S. C. § 2402. The appropriate inquiry, therefore, is whether Congress clearly and unequivocally departed from its usual practice in this area, and granted a right to trial by jury when it amended the ADEA. A Section 15 of the ADEA, 29 U. S. C. § 633a (1976 ed. and Supp. III), prohibits age discrimination in federal employment. Section 15 (c) provides the means for judicial enforcement of this guarantee: any person aggrieved “may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes” of the Act. Section 15 contrasts with § 7 (c) of the Act, 29 U. S.' C. § 626 (c) (1976 ed., Supp. III), which authorizes civil actions against private employers and state and local governments, and which expressly provides for jury trials. Congress accordingly demonstrated that it knew how to provide a statutory right to a jury trial when it wished to do so elsewhere in the very “legislation cited,” Galloway, supra, at 389. But in § 15 it failed explicitly to do so. See Fedorenko v. United States, 449 U. S. 490, 512-513; cf. Monroe v. Standard Oil Co., 452 U. S. 549, 561. The respondent infers statutory intent from the language in § 15 (c) providing for the award of “legal or equitable relief,” relying on Lorillard v. Pons, 434 U. S. 575, for the proposition that the authorization of “legal” relief supports a statutory jury trial right. But Lorillard has no application in this context. In the first place, the word “legal” cannot be deemed to be what the Lorillard Court described as “a term of art” with respect to the availability of jury trials in cases where the defendant is the Federal Government. In Lorillard, the authorization for the award of “legal” relief was significant largely because of the presence of a constitutional question. The Court observed that where legal relief is granted in litigation between private parties, the Seventh Amendment guarantees the right to a jury, and reasoned that Congress must have been aware of the significance of the word “legal” in that context. But the Seventh Amendment has no application in actions at law against the Government, as Congress and this Court have always recognized. Thus no particular significance can be attributed to the word “legal” in § 15 (c). Moreover, another basis of the decision in Lorillard was that when Congress chose to incorporate the enforcement scheme of the Fair Labor Standards Act (FLSA) into § 7 of the ADEA, it adopted in ADEA the FLSA practice of making jury trials available. 434 U. S., at 580-583. Again, that reasoning has no relevance to this case, because Congress did not incorporate the FLSA enforcement scheme into § 15. See 29 IT. S. C. § 633a (f) (1976 ed., Supp. III). Rather, §§ 15 (a) and (b) are patterned after §§ 717 (a) and (b) of the Civil Rights Act of 1964, as amended in March 1972, see Pub. L. 92-261, 86 Stat. 111-112, which extend the protection of Title VII to federal employees. 42 U. S. C. §§ 2000e-16 (a) and (b). See 118 Cong. Rec. 24397 (1972) (remarks of Sen. Bentsen, principal sponsor of § 15 of ADEA). And, of course, in contrast to the FLSA, there is no right to trial by jury in cases arising under Title VII. See Lorillard, supra, at 583-584; Great American Federal Savings & Loan Assn. v. Novotny, 442 U. S. 366, 375, and n. 19. The respondent also infers a right to trial by jury from the fact that Congress conferred jurisdiction over ADEA suits upon the federal district courts, where jury trials are ordinarily available, rather than upon the Court of Claims, where they are not. Not only is there little logical support for this inference, but the legislative history offers no support for it either. Moreover, Rule 38 (a) of the Federal Rules of Civil Procedure provides that the right to a jury trial "as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate” (emphasis added). This language hardly states a general rule that jury trials are to be presumed whenever Congress provides for cases to be brought in federal district courts. Indeed, Rule 38 (a) requires an affirmative statutory grant of the right where, as in this case, the Seventh Amendment does not apply. B As already indicated, it is unnecessary to go beyond the language of the statute itself to conclude that Congress did not intend to confer a right to trial by jury on ADEA plaintiffs proceeding against the Federal Government. But it is helpful briefly to explore the legislative history, if only to demonstrate that it no more supports the holding of the Court of Appeals than does the statutory language itself. The respondent cannot point to a single reference in the legislative history to the subject of jury trials in cases brought against the Federal Government. There is none. And there is nothing to indicate that Congress did not mean what it plainly indicated when it expressly provided for jury trials in § 7 (c) cases but not in § 15 (c) cases. In fact, the few inferences that may be drawn from the legislative history are inconsistent with the respondent’s position. The ADEA originally applied only to actions against private employers. Section 7 incorporated the enforcement scheme used in employee actions against private employers under the FLSA. In Lorillard, the Court found that the incorporation of the FLSA scheme into § 7 indicated that the FLSA right to trial by jury should also be incorporated. The Lorillard holding was codified in 1978 when § 7 (c) was amended to provide expressly for jury trials in actions brought under that section. Congress expanded the scope of ADEA in 1974 to include state and local government and Federal Government employers. State and local governments were added as potential defendants by a simple expansion of the term “employer” in the ADEA. The existing substantive and procedural provisions of the Act, including § 7 (c), were thereby extended to cover state and local government employees. In contrast, Congress added an entirely new section, § 15, to address the problems of age discrimination in federal employment. Here Congress deliberately prescribed a distinct statutory scheme applicable only to the federal sector, and one based not on the FLSA but, as already indicated, on Title VII, where, unlike the FLSA, there was no right to trial by jury. Finally, in a 1978 amendment to ADEA, Congress declined an opportunity to extend a right to trial by jury to federal employee plaintiffs. Before the announcement of Lorillard, the Senate, but not the House, had included an amendment to § 7 (c) to provide for jury trials in a pending bill to revise ADEA. After Lorillard, the Conference Committee recommended and Congress enacted the present § 7 (c)(2), closely resembling the jury trial amendment passed by the Senate. But the Conference did not recommend, and Congress did not enact, any corresponding amendment of § 15 (c) to provide for jury trials in cases against the Federal Government. Indeed, the conferees recommended and Congress enacted a new § 15 (f), 29 U. S. C. § 633a (f) (1976 ed., Supp. III), providing that federal personnel actions covered by § 15 are not subject to any other section of ADEA, with one exception not relevant here. See H. R. Conf. Rep. No. 95-950, p. 11 (1978). See also H. R. Rep. No. 95-527, p. 11 (1977) (“Section 15 . . . is complete in itself”). Since the new subsection (f) clearly emphasized that § 15 was self-contained and unaffected by other sections, including those governing procedures applicable in actions against private employers, Judge Tamm, dissenting in the Court of Appeals, was surely correct when he concluded that “[i]n amending both sections as it did, Congress could not have overlooked the need to amend [§ 15 (c)] to allow jury trials for government employees if it had so wished.” 202 U. S. App. D. C., at 69, n. 8, 628 F. 2d, at 69, n. 8. C But even if the legislative history were ambiguous, that would not affect the proper resolution of this case, because the plaintiff in an action against the United States has a right to trial by jury only where Congress has affirmatively and unambiguously granted that right by statute. Congress has most obviously not done so here. Neither the provision for federal employer cases to be brought in district courts rather than the Court of Claims, nor the use of the word “legal” in that section, evinces a congressional intent that ADEA plaintiffs who proceed to trial against the Federal Government may do so before a jury. Congress expressly provided for jury trials in the section of the Act applicable to private-sector employers, and to state and local governmental entities. It did not do so in the section applicable to the Federal Government as an employer, and indeed, patterned that section after provisions in another Act under which there is no right to trial by jury. The conclusion is inescapable that Congress did not depart from its normal practice of not providing a right to trial by jury when it waived the sovereign immunity of the United States. For these reasons, the judgment of the Court of Appeals is reversed. It is so ordered. 81 Stat. 602, as amended, 29 U. S. C. §§ 621-634 (1976 ed. and Supp. III). 29 U. S. C. § 633a. Section 15 (a), as amended in 1978, provides in pertinent part: “All personnel actions affecting employees or applicants for employment who are at least 40 years of age ... in military departments [and other enumerated Government agencies] shall be made free from any discrimination based on age. 29 U. S. C. § 633a (a) (1976 ed., Supp. III). 29 U. S. C. § 633a (b) (1976 ed. and Supp. III). 29 U. S. C. § 633a (c). Section 7 (c), as amended in 1978 and as set forth in 29 U. S. C. § 626 (c) (1976 ed., Supp. Ill), provides: “(1) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter; Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Commission to enforce the right of such employee under this chapter. “(2) In an action brought under paragraph (1), a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter, regardless of whether equitable relief is sought by any party in such action.” With the exception of the express right to jury trial conferred by § 7 (c)(2) and of the proviso in § 7 (c)(1), §7 (e) is identical to §15 (c). Section 7 (c) (2) was added by the 1978 amendments of the ADEA. See n. 6, supra. It is not difficult to appreciate Congress’ reluctance to provide for jury trials against the United States. When fashioning a narrow exception to permit jury trials in tax refund cases in federal district courts under 28 U. S. C. § 1346 (a)(1), in legislation that Congress recognized established a “wholly new precedent,” H. R. Rep. No. 659, 83d Cong., 1st Sess., 3 (1953), Congress expressed its concern that juries “might tend to be overly generous because of the virtually unlimited ability of the Government to pay the verdict.” Ibid. Indeed, because of their firm opposition to breaking with precedent, the House conferees took almost a year before acceding to passage of the bill containing that exception. Only after much debate, and after the conferees became convinced that there would be no danger of excessive verdicts as a result of jury trials in that unique context — because recoveries would be limited to the amount of taxes illegally or erroneously collected — was the bill passed. See H. R. Conf. Rep. No. 2276, 83d Cong., 2d Sess., 2 (1954). The respondent argues that the strong presumption against the waiver of sovereign immunity has no relevance to the question of a right to trial by jury. But it is clear that the doctrine of sovereign immunity and its attendant presumptions must inform the Court’s decision in this case. The reason that the Seventh Amendment presumption in favor of jury trials does not apply in actions at law against the United States is that the United States is immune from suit, and the Seventh Amendment right to a jury trial, therefore, never existed with respect to a suit against the United States. Since there is no generally applicable jury trial right that attaches when the United States consents to suit, the accepted principles of sovereign immunity require that a jury trial right be clearly provided in the legislation creating the cause of action. The dissenters contend that this argument can only be made at the expense of overruling the Lorillard decision. But, as hereafter indicated, Lorillard has little relevance here. And, of course, the position taken in the dissent totally loses its force in view of the 1978 amendments to the ADEA, see infra, at 167-168, where Congress expressly extended a jury trial right in § 7 (c) but not in § 15 (c). The decisions cited by the Court in Lorillard, 434 U. S., at 580, n. 7, for the proposition that there is a right to a jury trial in FLSA actions all appear to have rested on the Seventh Amendment, not the FLSA itself. Thus, for the same reason that the Seventh Amendment does not apply in suits against the Federal Government, there would be no comparable right to trial by jury in FLSA suits against the Federal Government under 29 U. S. C. §216 (b). Accordingly, even if Congress intended to incorporate the FLSA enforcement scheme into § 15 of the ADEA, there would be no basis for inferring a right to a jury trial in ADEA 'cases where the employer is the Federal Government. There are a number of reasons why Congress may have chosen to limit jurisdiction to the federal district courts. They, along with state courts, already had jurisdiction of private-sector ADEA cases under §7 (c). Congress may have decided to follow the same course in federal sector cases, but confined jurisdiction to federal district courts so that there would not be trials in state courts of actions against the Federal Government. Exclusive district court jurisdiction is also consistent with the jurisdictional references in Title VII of the Civil Rights Act of 1964. See 42 U. S. C. §§ 2000e-5 (f)(3) and 2000e-16 (c). Congress may also have believed it appropriate to have trials in federal district courts because they, unlike the Court of Claims, are accustomed to awarding equitable relief of the sort authorized by § 15 (c). The respondent relies on United States v. Pfitsch, 256 U. S. 547. But the language relied on in Pfitsch is dicta, since the parties in that case agreed to trial by the court sitting without a jury, id., at 549, and the jury trial issue was therefore not directly before the Court. In any event, Pfitsch is plainly distinguishable. There Congress specifically rejected a proposal, “presented to its attention in a most precise form,” id., at 552, to confer concurrent jurisdiction on the district courts and Court of Claims under the Tucker Act and instead conferred a new and exclusive jurisdiction on the district courts. Given the particular legislative history in that case, the Court found it “difficult to conceive of any rational ground” for conferring exclusive jurisdiction on the district courts except to provide for jury trials. Ibid. That, of course, is not true here. See n. 12, supra. Moreover, Pfitsch arose before Rule 38 (a) of the Federal Rules of Civil Procedure. Rule 38 (a) made it clear that there is no general right to trial by jury in civil actions in federal district courts. The Rule establishes a mechanism for determining when there is such a right — i. e., when the Seventh Amendment applies, or if not, when a statute provides it. The respondent also relies on Law v. United States, 266 U. S. 494. The statement in Law regarding jury trials, which in fact does no more than cite Pfitsch, is also dictum, and of virtually no relevance in this context. A bill introduced by Senator Bentsen on March 9, 1972, S. 3318, 92d Cong., 2d Sess., 118 Cong. Rec. 7745 (1972), represented the first attempt to prohibit age discrimination in federal employment. This bill would have simply amended the definition of “employer” in the Act to include the Federal Government, as well as state and local governments. The result would presumably have been to bring federal employees under the procedural provisions in § 7. But Senator Bentsen subsequently submitted a revised version of his bill in the form of an amendment to pending FLSA amendments. See 118 Cong. Rec. 15894 (1972). In contrast to Senator Bentsen’s original bill, this amendment to the ADEA proposed the expansion of the definition of the term “employer” only with respect to state and local governments; ADEA coverage of federal employees was to be accomplished by the addition of an entirely new and separate section to the Act (presently §15). Senator Bentsen’s amendment was included in the FLSA bill reported by the Committee on Labor and Public Welfare, S. Rep. No. 92-842, pp. 93-94 (1972), and it remained in this form when the bill was enacted into law in 1974. Sections 15 (a) and 15 (b) of the ADEA, as offered by Senator Bentsen and as finally enacted, are patterned directly after §§ 717 (a) and (b) of the Civil Rights Act of 1964, as amended in March 1972, see Pub. L. 92-261, 86 Stat. 111-112, which extend Title VII protections to federal employees. Senator Bentsen acknowledged that “[t"\|he measures used to protect Federal employees [from age discriminatio.nl would be substantially similar to those incorporated” in recently enacted amendments to Title VII. 118 Cong. Rec. 24397 (1972). In fact, during floor consideration of the 1972 amendments to Title VII, the Senate rejected an amendment that would have conferred a statutory right to trial by jury in Title VII cases. Id, at 4919-4920. Senator Javits, in opposing the amendment, observed that it would impose “what would be a special requirement in these cases, as distinguished from the antidiscrimination field generally, of jury trial.” Id., at 4920. 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_geniss	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. 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". UNITED STATES of America, Plaintiff-Appellee, v. Robert Hilton SCHAFFER, Defendant-Appellant. No. 29296 Summary Calendar. United States Court of Appeals, Fifth Circuit. Nov. 13, 1970. Marlin M. Mooneyham (Ct. Appt.), Mooneyham & Mooneyham, Montgomery, Ala., for appellant. Ira deMent, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for appellee. Before BELL, AINSWORTH and GODBOLD, Circuit Judges. Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5th Cir., 1970, 431 F.2d 409, Part I. AINSWORTH, Circuit Judge: Robert Hilton Schaffer was indicted and convicted on seven counts of an indictment charging violation of 18 U.S.C. § 1341, which prohibits the use of the mails to execute a fraudulent scheme. His sole contention o._ appeal is that the District Judge erred in ordering the case to trial without first conducting a hearing to determine whether defendant was physically competent to stand trial. We find no error, and affirm the conviction. Schaffer’s ease was originally scheduled for trial on November 24, 1969, but was continued on notice to the court three days prior to trial date that Schaffer wished to substitute new counsel. Reset for January 19, 1970, the ease was once again continued on the morning of the 19th, when it developed that Schaffer had reported into a hospital the night before, complaining of back injuries from a fall in an airport lobby. The same day, upon learning of the defendant’s release from the hospital, the District Judge ordered trial set for the 20th. On the morning of the 20th the defendant appeared and by his attorneys requested a continuance until a court-appointed physician could examine him to determine whether he was physically competent to stand trial. The Judge denied the motion for a continuance, but appointed a physician to conduct the requested examination as soon as practicable. Early on the second day of the two-day trial, out of the presence of the jury, the defendant testified as to his present physical condition. He stated that he felt much better and that he found himself able to advise and counsel with his attorneys. Trial resumed, and Schaffer took the stand and testified. Subsequently, affidavits from the court-appointed physician and other medical personnel who had examined Schaffer both in and out of the hospital were assembled and placed in the record. The affidavits tended to show that Schaffer’s fall had caused him little more than some continuing back pain, for which medication was prescribed, and that the hospital doctors had admitted him as a patient (despite their findings that no medical necessity existed) solely because he and his employer so requested. “The trial and conviction of a person * * * incapable of making a defense violates certain immutable principles of justice which inhere in the very idea of free government.” Sanders v. Allen, 1938, 69 App.D.C. 307, 100 F.2d 717, 720. Courts have recognized that a defendant who is “mentally competent” within the meaning of 18 U.S.C. § 4244 et seq. may yet be “physically incompetent” — unable, by virtue (for example) of a painful physical condition or the temporary effects of narcotics, to participate effectively in his own defense. See United States v. Bernstein, 2 Cir., 1969, 417 F.2d 641; United States v. Knohl, 2 Cir., 1967, 379 F.2d 427, cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967); Clark v. Beto, 5 Cir., 1966, 359 F.2d 554, 556-557 (dictum), cert. denied, 386 U.S. 927, 87 S.Ct. 875, 17 L.Ed.2d 799 (1967). A defendant convicted while incompetent to stand trial has been denied due process. See United States v. Knohl, supra, and cases collected therein. Here the appellant does not contend that he was denied an opportunity to present evidence bearing on his physical competence. Compare Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Welsh v. United States, 5 Cir., 1968, 404 F.2d 414. His objection goes solely to the issue of timing. It has been observed that the granting or denial of a continuance on grounds of physical disability of the defendant is a matter within the sound discretion of the Trial Judge. United States v. Bernstein, supra, 417 F.2d at 643; United States v. Knohl, supra, 379 F.2d at 437. Where the sole concern is that the rigors of trial may jeopardize the defendant’s health, this is clearly the correct standard. Competence to stand trial, • however, involves questions of fact, and findings in this regard by the District Judge are reversible on appeal if clearly erroneous. Cf. United States v. Armone, 2 Cir., 1966, 363 F.2d 385, 403, cert. denied, 385 U.S. 957, 87 S.Ct. 398, 17 L.Ed.2d 303 (1966). Frequently the Trial Judge will postpone his ruling on his issue until the trial has ended, determining competence nunc pro tunc. United States v. Armone, supra, 363 F.2d at 402 n. 17. It is this decision— whether to adjudicate the issue of competence before, during or after trial— that is entrusted to the sound discretion of the Trial Judge. Here we are unable to find any indication that appellant was prejudiced by the failure of the Trial Judge to conduct a hearing on the competence issue prior to trial. Nor do we find that it was error, let alone clear error, for the Judge to permit the trial to proceed on the basis that the defendant was competent to assist in his own defense. “We are aware that the record in itself does not always fully reveal whether an accused was substantially denied a fair opportunity to prepare and conduct his defense. There may have been other evidence or sources of evidence disclosed or other theories which would have suggested themselves, but the appellant mentions no specific instance where some line of inquiry or development of theory of substantial importance to the defense was baulked or frustrated because counsel could not get assistance from the accused. Moreover, there is nothing from which such injury can be inferred.” United States v. Knohl, supra, 379 F.2d at 438. The judgment of the District Court is affirmed. 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_bus	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 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. GLENS FALLS INDEMNITY CO. v. ATLANTIC BLDG. CORP. et al. No. 6424. United States Court of Appeals Fourth Circuit. Argued June 30, 1952. Decided Sept. 25, 1952. Frank B. Gary, Jr., Columbia, S. C. (Paul A. Cooper, Frank K. Sloan and Cooper & Gary, Columbia, S. C., on brief), for appellant. Yancey A. McLeod and C. T. Gray don, Columbia, S. C. (Augustus T. Graydon and McLeod & Singletary, Columbia, S. C., on brief), for appellees. Before SOPER and DOBIE, Circuit Judges, and HÁYES, District Judge. SOPER, Circuit Judge. This suit on a comprehensive liability insurance policy was brought by Atlantic Building Corporation, the insured, against Glens Falls Indemnity Company to recover the sum of $2,700 paid by the insured in settlement of a suit for damages for assault and battery brought by Margaret Steel Fallaw against the insured and Tom E. Mat-lack in the Court of Common Pleas for Richland County, South Carolina, and also to recover the sum of $750 for attorney’s fees expended in defense of the suit. The District Court rendered judgment against the Insurance Company for the amounts claimed. The insured called on the Insurance Company in due course to defend the suit in the state court; but the company refused on the ground that the suit was not covered by the policy because Matlack was president of the insured and it was alleged in the complaint that Matlack, while acting within the course and scope of his employment by the insured, assaulted the plaintiff and struck her in the face with his fist as she was attempting to park her car on the street in Columbia, South Carolina. The Insurance Company took the position that although the policy provided that the company would pay, on behalf of the insured, all sums which the insured should become obligated to pay by reason of liability imposed by law for damages for bodily injury caused by accident, the policy also provided in effect that assault and battery should be not deemed an accident if “committed by or at the direction of the insured.” Upon the refusal of the company, the insured employed counsel to defend the suit, and at the trial the jury found a verdict for the plaintiff against both defendants in the amount of $250 actual damages and $2,500 punitive damages. The case was then settled by the insured by the payment of the sum of $2,700; and the insured also paid its attorneys $750 for services rendered in defense of the suit. It is conceded that the amounts paid by the insured were reasonable; and the defense is limited to a denial of liability on the part of the Insurance Company to pay to the insured either of the sums expended by it in connection with the suit. The policy required the Insurance Company not only to defray the legal obligations of the insured for damages for bodily injury as aforesaid, but also to defend any suit against the insured alleging such injury and seeking damages therefor, even if the suit should be groundless. Since the complaint in the state court alleged that the assault was committed by Matlack, while acting as the agent of the insured within the course of his employment, and there was nothing in the complaint to indicate that Matlack was acting at the time as an agent in control of the insured, it is obvious that the refusal of the Insurance Company to defend was a breach of its policy and that the company is liable to the insured for the amount of the attorney’s fees. The duty of the insurer to defend a suit ordinarily depends upon the allegations of the complaint. See the decision of this court in Employers Mutual Liability Ins. Co. v. B. L. Hendrix, 4 Cir., 199 F.2d 53. The liability of the Insurance Company for the amount paid in settlement of the damages depends upon whether, in the words of the policy, the assault and battery was committed “by or at the direction of the insured.” The physical actions which constituted the assault and battery were performed by Matlack and at the time he was engaged in the business of the insured and was using a pick-up automobile truck to return an electric motor which the insured had purchased and desired to replace. Mat-lack was the president of the corporation and the owner of one-third of its stock. By reason of these facts the Insurance Company contends that the wrongful act of Matlack was the act of the corporation itself, as distinguished from the act of an agent of the corporation, and hence the assault was committed “by the insured” and was not covered by the policy. The insurance company admits that the policy covers liability for damages for an assault and battery if it is committed by an agent of the insured in the course of his employment, and the liability of the insured rests upon the doctrine of respondeat superior; but it is contended that Matlack’s act was the act of the corporation itself since it was committed not by an ordinary agent but by the president of the company. When the insured in a liability policy is an individual person, there is no difficulty in interpreting the crucial phrase which brings an assault and battery within the coverage, unless committed “by or at the direction of the insured.” In such case the only inquiry is whether the insured personally participated in the act or directed that it be done. It is the intentional commission of the wrong that bars recovery. A corporation, however, can act only through a human agent and in one sense any act of the agent in the course of his employment is the act of the corporation. Nevertheless, it cannot be supposed and it is not centended that the form of policy used in this case was intended to exclude from coverage every assault and battery committed by a corporate agent in the course of his duty, no matter how insignificant his standing and authority may be. That interpretation would render meaningless the assault and battery clause which was obviously inserted to bring the offense within the protection of the policy as far as possible, without running counter to the public policy that forbids an insured to profit by his own wrong doing. See Farm Bureau Mut. Auto. Ins. Co. v. Hammer, 4 Cir., 177 F.2d 793. On the other hand, it cannot be supposed that the insurance contract was intended 'to cover every assault and battery of a corporate agent even though he is clothed with general executive authority to determine the policies of the corporate body and has committed or directed the commission of an assault in conformity therewith. To insure a corporation from loss for such an act would violate the rule of public policy above referred to as clearly as if the insured were a natural person. The problem of coverage in each instance must therefore be resolved by ascertaining the extent of the agent’s authority and the capacity in which he has acted, and whether his action may be deemed to have been performed with the corporation’s knowledge and consent. The agent’s authority may be proved by express grant, or may be inferred from the circumstances, such as the status of the agent, and the acts which he has customarily and openly performed. The determination of the question is not unlike that which confronts the court, when the conviction of a corporation for crime, or the imposition upon it of punitive damages for wanton and malicious conduct is sought and it becomes necessary to show a specific intent on the part of the corporate body. See People v. Canadian Fur Trappers’ Corp., 248 N.Y. 159, 161 N.E. 455, 59 A.L.R. 372; Wardman-Justice Motors v. Petrie, 59 App.D.C. 262, 39 F.2d 512, 69 A.L.R. 648. In the present instance we have no difficulty in concluding that Matlack was not acting in his executive capacity as president of the corporation with the authority of the Board of Directors of the corporation or in the execution of a policy determined by himself under an authority conferred by the corporation. Rather, it seems to us, he was acting as a truck driver who was caught up unexpectedly in an altercation with another driver which led him, on the spur of the moment, to commit the wrongful act; and the liability of the Insurance Company is the same as if he had been an ordinary chauffeur in the company’s employ. For these reasons we conclude that the transaction was covered by the policy. Finally we come to a feature of the case not heretofore discussed. The Insurance Company, before answering the complaint in the pending .case, moved ex parte for leave to file a third party summons and complaint against Matlack under Rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A., and leave was granted. The complaint, as filed, was to the effect that the damage suffered by the insured corporation was caused by the acts of Matlack and that he is liable to the corporation for any damages arising therefrom; and that the insurance policy provides that in the event of any payment thereunder, the Insurance Company shall be subrogated to all the insured’s rights of recovery therefor against any person. Under this third party complaint the Insurance Company claimed the right to be reimbursed by Matlack for any sum paid by it to the insured corporation as the result of the pending suit. Subsequently on motion of Matlack the third party action was dismissed on the ground that under the law of South Carolina a party is not entitled to subrogation for the payment of the debt for which another is primarily responsible until he has paid the same, and since the Insurance Company has not paid to the insured the amount claimed by it, the third party action must be dismissed. Rule 14(a) provides in part as follows : “Before the service of his answer a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him [or to the plaintiff] for all or part of the plaintiff’s claim against him.” The purpose of the rule is to permit additional parties whose rights may be affected by the decision in the original action to be joined and brought in so as to expedite the final determination of the rights and liabilities of all of the interested persons in one suit. That purpose will be facilitated in the pending case if the third party action is entertained, since it may be that Matlack is liable to the insured for the losses suffered by it through his unlawful conduct and, if so, the Insurance Company would be subrogated to the rights of the insured under the express terms of the policy. It is true in South Carolina and elsewhere that the right of subrogation may not be recognized unless the party asserting it has paid the debt on which the right of subrogation is based. American Surety Co. v. Hamrick Mills, 191 S.C. 362, 4 S.E.2d 308, 124 A.L.R. 1147. But this rule applies when the indemnitor brings a separate suit against the person whose action has caused the loss. Rule 14 was designed to prevent this circuity of action and to enable the rights of an indemnitee against an indemnitor and the rights of the latter against a wrongdoer to be finally settled in one and the same suit. It is generally held that it is no obstacle to a third party action that the liability, if any, of the third party defendant can be established only after that of the original defendant and after the satisfaction of the plaintiff’s claim, where subrogation is the basis of the claim. See Lee’s Inc. v. Transcontinental Underwriters, D.C.Md., 9 F.R.D. 470, and cases cited. The situation in the pending case presents no difficulty to the practical application of the rule. The liability of the Atlantic Building Corporation, the insured, to the injured party, and the liability of the Insurance Company to Atlantic grow out of the wrongful acts of Matlack; and it is peculiarly fitting that Matlack’s personal liability to Atlantic and the right of the Insurance Company to subrogation be determined in the same case. We have held in Baltimore & O. R. Co. v. Saunders, 4 Cir., 159 F.2d 481, that the question whether a third party defendant may be brought into an action is ordinarily a matter resting within the sound discretion of the judge. In the pending case, however, the third party action was dismissed under the mistaken opinion that the right of the Insurance Company to be subrogated to the rights of the insured could not be determined until the Insurance Company had paid the loss. The third party action was not and could not have been dismissed in the exercise of the court’s discretion, because this would clearly frustrate the purpose of the rule. The case will therefore be remanded so that the claim against the third party may be submitted to the District Court. The judgment of the District Court as to the liability of the Insurance Company to the policy holder for the amounts paid by the insured for damages and counsel fees growing out of the South Carolina case will be affirmed; but the judgment, insofar as it dismissed the third party action, will be reversed and in this respect the case will be remanded for a new trial. Affirmed in part and reversed in part and remanded for further proceedings. 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:
sc_issue_9	20	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. ALMA MOTOR CO. v. TIMKEN-DETROIT AXLE CO. et al. No. 11. Argued April 25,26,1945. Reargued October 24,25,1946.— Decided December 9, 1946. 7. Joseph Farley argued the cause and filed a brief for petitioner on the original argument. Thomas J. Hughes and John G. Buchanan argued the cause for petitioner on the reargument. Messrs. Hughes and Farley filed a brief on the reargument. Assistant Attorney General Shea argued the cause for the United States, respondent, on the original argument. With him on the brief were Solicitor General Fahy, David L. Kreeger and J eróme H. Simonds. Assistant Attorney General Sonnett argued the cause for the United States, respondent, on the reargument. With him on the brief were Solicitor General McGrath, Arnold Baum, Paul A. Sweeney and Joseph B. Goldman. William A. Stranch argued the cause for the Timken-Detroit Axle Co., respondent. With him on the briefs was J. Matthews Neale. James A. Hoffman was also on the brief on the original argument. James D. Carpenter, Jr. and John G. Buchanan filed a brief on the original argument for Roscoe A. Coffman, as amicus curiae, urging reversal. William H. Webb and John G. Buchanan, Jr. were also with them on the brief on the reargument. Mr. Chief Justice Vinson delivered the opinion of the Court. Certiorari was granted in this case February 5, 1945, on a petition addressed to the question of the constitutionality of the Royalty Adjustment Act of October 31, 1942, and of Royalty Adjustment Order No. W-3, issued by the War Department July 28, 1943. We find now, however, that the Circuit Court of Appeals had before it, not only the constitutional question, which was decided, but also a non-constitutional question, which alone might properly have served as an adequate ground on which to dispose of the appeal. This non-constitutional question was neither considered nor decided by the court below, nor argued here. We have concluded, therefore, that we should not pass on the constitutional question at this time, but should vacate the judgment of the Circuit Court of Appeals, and remand the case to it for decision of any non-constitutional issues material to the appeal. To explain the reasons for this conclusion, we must state the history of the present proceedings in some detail. They were begun by a complaint in a District Court filed by respondent, The Timken-Detroit Axle Company, against petitioner, Alma Motor Company, asking a declaratory judgment as to their respective rights under a patent held by Alma and a coextensive license from Alma to Timken. The complaint alleged the existence of the patent, purporting to cover certain “transfer cases” or auxiliary automotive transmissions, and the license, by which Timken was authorized to manufacture the patented articles and required to pay certain specified royalties. It further alleged that Timken was engaged in manufacturing various designs of transfer cases, that some of these were once believed to have been covered by Alma’s patent and had been made the subject of royalty payments, but on the basis of later information Timken had concluded that none of them were covered, and that the patent was invalid. It asked for a judgment confirming this conclusion. Alma answered, claiming that all Timken’s transfer cases were covered, that the patent was valid, and that Timken was estopped from challenging validity, and counterclaimed for a money judgment for unpaid royalties. Following a trial, the District Court filed findings and an opinion, and entered judgment December 2,1942. It held Timken estopped from challenging the validity of Alma’s patent; that certain specified types of Timken’s transfer cases (generally those denominated T-32 and T-43) were covered by the patent and license; that Timken was indebted to Alma for royalties thereon; and that other types (generally those denominated T-79) were outside the patent and license. The court indicated that unless the parties could agree on the amount of the royalties so held to be payable, a special master would be appointed to determine the amount. Shortly before this judgment was entered, Congress enacted the Royalty Adjustment Act, which Alma seeks to attack here. The primary purpose of this Act was to reduce royalties for which the United States was ultimately liable on inventions manufactured for it by a licensee, from pre-war rates to rates appropriate to the volume of production in wartime. Whenever during the war a government contractor manufactured under a license, and the royalties seemed excessive to the head of the department concerned, the latter was empowered to stop piayments by notice to the licensor and licensee, and after a hearing, to fix by order “fair and just” royalties, “taking into account the conditions of wartime production.” Thereafter, the licensor could collect royalties from the licensee only at the rate so determined. If the licensor felt that the reduction was unfair, his remedy was by suit against the United States in the Court of Claims, where he could recover “fair and just compensation . . . taking into account the conditions of wartime production.” Whatever reduction was effected by the order was to inure to the benefit of the United States. The notice, stopping payment of royalties from Timken to Alma, was issued by the War Department December 30, 1942. Royalty Adjustment Order No. W-3 followed on July 28,1943, fixing a “fair and just” royalty at zero. The basis of this determination was the alleged invalidity of Alma’s patent, which the United States claims that the Act permits it to assert. In the meantime, Alma had taken an appeal from Paragraph o of the judgment of the District Court, which held that the T-79 transfer cases were outside the patent. Tim-ken did not appeal. After the Order was promulgated, Timken moved to dismiss the appeal and remand to the District Court with directions to vacate its judgment. The motion was predicated on an affidavit that Timken had manufactured transfer cases for the United States alone, together with the argument that the operation of the Act and Order transferred jurisdiction of the subject matter of the entire case to the Court of Claims. Alma countered with an attack on the constitutionality of the Act and Order, primarily as working a deprivation of property in contravention of the Fifth Amendment. The United States had at this time already submitted an amicus brief, in which it argued that the Order had made the appeal moot; and when Alma’s constitutional attack was filed, the United States intervened in support of the Act and Order. In its opinion the Circuit Court of Appeals considered that the question of the applicability of the Act and Order in this case was simply a question of their constitutional validity. It proceeded to consider this latter question, and decided that both the Act and the Order were entirely valid. Accordingly, it entered the following order: “. . . it is now here ordered and adjudged by this Court that paragraph 5 of the judgment of the said District Court in this case be, and the same is hereby vacated and the cause is remanded to the District Court with directions to proceed no further therein unless and until it shall appear to the Court that a justiciable controversy again exists between the parties arising out of the facts set forth in the complaint, except that the Court may, if it deems such action to be appropriate, vacate all or any part of the remainder of the judgment and dismiss the complaint as moot.” The War Department notice was issued after the District Court’s judgment, but before appeal was filed in the Circuit Court of Appeals. It appears that at no time did any party urge on the Circuit Court of Appeals or did that court pass on the question whether the T-79 transfer cases were covered by Alma’s patent and license. Indeed, it was not until after we had granted certiorari and heard argument at the October 1944 term on the constitutional question, and set the case down for further argument this term, that the United States pointed to this omission, and suggested that the Circuit Court of Appeals should have avoided the question of constitutionality by first considering the question of coverage. It argued here that the prior determination of any non-constitutional questions which might dispose of a controversy is a practice which is dictated by sound principles of judicial administration. It moved to vacate the judgment of the Circuit Court of Appeals, and to remand the case to it for such determination. Both Alma and Timken opposed the motion. Action was withheld pending argument on the motion and the case itself. This Court has said repeatedly that it ought not pass on the constitutionality of an act of Congress unless such adjudication is unavoidable. This is true even though the question is properly presented by the record. If two questions are raised, one of non-constitutional and the other of constitutional nature, and a decision of the non-constitutional question would make unnecessary a decision of the constitutional question, the former will be decided. This same rule should guide the lower courts as well as this one. We believe that the structure of the problems before the Circuit Court of Appeals required the application of the rule to this case. At the outset that court was confronted with the merits of the appeal, which involved simply the coverage by the patent and license of the T-79 transfer cases. Later, however, it was confronted also with a problem of jurisdictional nature. This involved the effect wrought by the Act and Order on its power to proceed to an adjudication on the merits. If for any reason, the Act and Order had no applicability in the case, the court should proceed to the merits. If, however, they were controlling, Alma was relegated to its statutory remedy against the United States, and the court would be required to dismiss the appeal, and to vacate Paragraph 5 of the judgment in the District Court. In the determination of this jurisdictional problem, we are of the opinion that the Circuit Court of Appeals erred. It assumed that this problem involved only the question of the constitutionality of the Act and Order. But the Act and Order, whether or not constitutional, do not control the disposition of this case unless they were intended to apply to it. The question of their applicability is a non-constitutional question, the decision of which might have made unnecessary any consideration of constitutionality. Were the Act and Order intended to apply? Their terms seem to make that depend upon whether the subject-matter of the appeal — the T-79 transfer cases — were covered by the patent and license. The Act provides that it is only “whenever an invention . . . shall be manufactured . . . for the United States, with license from the owner thereof . . .” and the department head believes the stipulated royalties to be unreasonable, that the latter shall give “written notice of such fact to the licensor and to the licensee.” It is only after such notice that the department head may fix “fair and just” royalties, and only “such licensee” who is forbidden to pay additional amounts as royalties, and only “such licensor” who is relegated to the Court of Claims. Conversely, if the putative invention is manufactured without license, or if the putative patentee is not actually the owner, these powers and disabilities do not arise. Even Order No. W-3 does not refer to T-79 transfer cases as such. It forbids the payment of royalties only on transfer cases “under” this license, or any license pursuant to this patent, “which embody . . . the . . . alleged inventions.” Again, if the T-79s are not “under” the Alma-Timken license, or if they do not “embody” Alma’s patented claim, then the Order expressly leaves Alma’s and Timken’s rights and remedies unaffected. Consequently, coverage of the T-79s, as well as constitutionality of the Act and Order, was a crucial issue in deciding the jurisdiction of the Circuit Court of Appeals. If they are covered, the Act and Order apply, and it was then necessary to decide constitutionality in order to determine whether the court could proceed to a judgment on the merits. If the T-79s are not covered, the Act and Order manifestly do not apply, and the court could proceed to a judgment on the merits, whether the Act and Order are constitutional or not. In that event, of course, no constitutional question would be decided. The Circuit Court of Appeals may have thought that the applicability of the Act and Order turn not on actual coverage, but on a claim of coverage, and hence that applicability was undisputed and only constitutionality was pertinent to jurisdiction in this case. Such construction is said to have some support in cases like Smithers v. Smith, 204 U. S. 632, and Bell v. Hood, 327 U. S. 678, in which bona fide claims of rights were held to satisfy jurisdictional requirements as to the amount in controversy and as to the existence of a certain federal question, regardless of whether such claims would ultimately be established. The answer to this argument is that the statutory language which controlled the cited cases expressly refers to the claim as the test of jurisdiction, whereas, as we have shown, the instant Act refers to the objective event. Furthermore, the test in the Smithers and Bell cases, supra, is a condition precedent to the exercise of jurisdiction. Unless such exercise is made to turn on what the plaintiff rather than what the court says is at stake, the court’s jurisdictional ruling will often deny the plaintiff a forum when a full hearing might later have shown a right to relief. The test in this case, on the other hand, is a condition subsequent, in certain instances depriving the court of jurisdiction, and the same danger is not present. Timken contends that the jurisdiction of all suits with respect to inventions manufactured for the United States in wartime is transferred to the Court of Claims, and that the coverage question is immaterial. It argues that where the Royalty Adjustment Act does not accomplish this transfer because the manufacture is not by a licensee, the Act of June 25,1910, as amended, should apply, and that it has the same effect. It is said, therefore, that the case should have been dismissed whether there was coverage or not, and that the Circuit Court of Appeals properly refrained from deciding that question. Assuming the premise is correct, we do not reach the same conclusion. Dismissal can be ordered under the 1910 Act, if it applies, without deciding any constitutional questions, for that Act has already been before this Court and been approved. To order dismissal under the 1942 Act, however, or under one of the two Acts alternatively, requires a determination of the constitutionality of the latter. As we have already indicated, this is sufficient reason for first deciding which Act impels the transfer. It is true that § 2 of the Royalty Adjustment Act provides that, if the licensor sues in the Court of Claims, the United States “may avail itself of any and all defenses, general or special, that might be pleaded by a defendant in an action for infringement as set forth in title sixty of the Revised Statutes, or otherwise.” We deem it clear that such defenses would include questions of coverage as well as validity of a patent. But we do not think that § 2 reflects a decision by Congress that all suits involving licenses under the Act and presenting questions of coverage or validity should be tried in the Court of Claims. As respects the problem with which we are now concerned, § 2 does no more than to make available such defenses in the Court of Claims whenever the suits authorized by the Act are brought there. Both Alma and Timken maintain that the constitutional question could not be avoided by the Circuit Court of Appeals, because the T-32 and T-43 transfer cases were covered, if the T-79s were not, and were therefore necessarily subject to the Order. Indeed, the District Court decided that they were covered, and Timken did not appeal. This point carries its own refutation. Neither party appealed from the adjudication as to the T-32 and T-43 transfer cases. No claim as to them was before the Circuit Court of Appeals. There is no claim now that a litigant may not appeal from part of a judgment, or that an appeal from part brings up the whole. The Circuit Court of Appeals was not properly concerned with their coverage, or with the applicability to them of the Act or Order. Therefore, the part of its order affecting T-32s and T-43s was unwarranted, and should not now be made the basis for approving a constitutional decision which was otherwise unnecessary. Alma objects strenuously to the Government “mending its hold” between the time it urged dismissal in an amicus brief in the Circuit Court of Appeals and argued constitutionality there and here, and the time it filed here its motion to vacate, and remand. The Government certainly aided and abetted the Circuit Court of Appeals in its error. But Alma is not without fault in creating the confusion. In its “Petition to Review” the Order, Alma asked the Circuit Court of Appeals to hold the Order unconstitutional. In its petition to the Circuit Court of Appeals for rehearing, it argued that the court should not have passed on constitutionality because Timken had not charged any royalties to the United States on T-79s, and the Act and Order were allegedly inapplicable. Before this Court it has returned to its original position. We agree that much time has been wasted by the earlier failure of the parties to indicate, or the Circuit Court of Appeals or this Court to see, the course which should have been followed. This, however, is no reason to continue now on the wrong course. The principle of avoiding constitutional questions is one which was conceived out of considerations of sound judicial administration. It is a traditional policy of our courts. The judgment is vacated and the case remanded for further proceedings in conformity with this opinion. 56 Stat. 1013, 35 U. S. C. Supp. V, §§ 89-96. Timken-Detroit Axle Co. v. Alma Motor Co., 47 F. Supp. 582 (D. Del. 1942). 56 Stat. 1013, 35 U. S. C. Supp. V, § 89. 56 Stat. 1013, 35 U. S. C. Supp. V, § 90. 56 Stat. 1013,35 U. S. C. Supp. V, § 90. Timken-Detroit Axle Co. v. Alma Motor Co., 144 F. 2d 714 (CCA 3,1944). The word “again” was deleted by an order of October 2,1944. Siler v. Louisville & Nashville R. Co., 213 U. S. 175, 193; Light v. United States, 220 U. S. 523, 538; Spector Motor Co. v. McLaughlin, 323 U. S. 101, 105. See Brandeis, J., concurring in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 347. 35 U. S. C. Supp. V, § 89. “The district courts shall have original jurisdiction . . . where the matter in controversy exceeds . . . the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States . . .” 28U.S. C. § 41. Act of June 25, 1910, 36 Stat. 851, as amended by the Act of July 1,1918, 40 Stat. 705, 35 U. S. C. § 68, provides in part: “Whenever an invention described in and covered by a patent of the United States shall hereafter be used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, such owner’s remedy shall be by suit against the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such use and manufacture . . Crozier v. Krupp, 224 U. S. 290; Richmond Screw Anchor Co. v. United States, 275 U. S. 331. Section 2 provides in full: “Any licensor aggrieved by any order issued pursuant to section 1 hereof, fixing and specifying the maximum rates or amounts of royalties under a license issued by him, may institute suit against the United States in the Court of Claims, or in the District Courts of the United States insofar as such courts may have concurrent jurisdiction with the Court of Claims, to recover such sum, if any, as, when added to the royalties fixed and specified in such order, shall constitute fair and just compensation to the licensor for the manufacture, use, sale, or other disposition of the licensed invention for the United States, taking into account the conditions of wartime production. In any such suit the United States may avail itself of any and all defenses, general or special, that might be pleaded by a defendant in an action for infringement as set forth in title sixty of the Revised Statutes, or otherwise.” Rule 73 (b) of the Federal Rules of Civil Procedure provides that the “notice of appeal . . . shall designate the judgment or part thereof appealed from . . .” Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553 (1837). Question: What is the issue of the decision? 01. comity: civil rights 02. comity: criminal procedure 03. comity: First Amendment 04. comity: habeas corpus 05. comity: military 06. comity: obscenity 07. comity: privacy 08. comity: miscellaneous 09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals 10. assessment of costs or damages: as part of a court order 11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules 12. judicial review of administrative agency's or administrative official's actions and procedures 13. mootness (cf. standing to sue: live dispute) 14. venue 15. no merits: writ improvidently granted 16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit 17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals) 18. no merits: adequate non-federal grounds for decision 19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law) 20. no merits: miscellaneous 21. standing to sue: adversary parties 22. standing to sue: direct injury 23. standing to sue: legal injury 24. standing to sue: personal injury 25. standing to sue: justiciable question 26. standing to sue: live dispute 27. standing to sue: parens patriae standing 28. standing to sue: statutory standing 29. standing to sue: private or implied cause of action 30. standing to sue: taxpayer's suit 31. standing to sue: miscellaneous 32. judicial administration: jurisdiction or authority of federal district courts or territorial courts 33. judicial administration: jurisdiction or authority of federal courts of appeals 34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753) 35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court 36. judicial administration: jurisdiction or authority of the Court of Claims 37. judicial administration: Supreme Court's original jurisdiction 38. judicial administration: review of non-final order 39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision) 40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question) 41. judicial administration: ancillary or pendent jurisdiction 42. judicial administration: extraordinary relief (e.g., mandamus, injunction) 43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal) 44. judicial administration: resolution of circuit conflict, or conflict between or among other courts 45. judicial administration: objection to reason for denial of certiorari or appeal 46. judicial administration: collateral estoppel or res judicata 47. judicial administration: interpleader 48. judicial administration: untimely filing 49. judicial administration: Act of State doctrine 50. judicial administration: miscellaneous 51. Supreme Court's certiorari, writ of error, or appeals jurisdiction 52. miscellaneous judicial power, especially diversity jurisdiction Answer:
songer_appel1_7_5	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 appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Robert P. KROPP, Appellant, v. Sylvester A. ZIEBARTH, a/k/a Silver A. Ziebarth, and Carol A. Ziebarth, husband and wife, and Cleon Striegel, Appellees. No. 78-1182. United States Court of Appeals, Eighth Circuit. Submitted Oct. 19, 1978. Decided July 5, 1979. Rehearing Denied July 12, 1979. John R. Davidson, Davidson, Veeder, Baugh & Broeder, Billings, Mont., argued, for appellant; Fred E. Whisenand, Mclntee & Whisenand, Williston, N. D., on brief. Robert Edd Lee, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Mont., argued, for appellees; David L. Peterson, Wheeler, Wolf, Wefald & Peterson, Bismarck, N. D., on brief. Before GIBSON, Chief Judge, and BRIGHT and STEPHENSON, Circuit Judges. ORDER GRANTING PETITION FOR REHEARING, WITHDRAWING PRIOR OPINION, AND SUBSTITUTING OPINION OF THE COURT. Robert P. Kropp, in seeking a rehearing, contends essentially that the district court erred in admitting into evidence exhibits 51 and 92 of the Buyers (Sylvester Ziebarth, Carol Ziebarth, and Cleon Striegel), because the exhibits lack foundation and impermis-sibly reflect gross rather than net losses in value to Buyers stemming from Kropp’s breach of contract. The exhibits in question illustrate the losses allegedly suffered by Buyers on the sale of the herd of exotic cattle bought from Kropp and, additionally, projected losses on the sale of that herd’s 1973 calf crop as a result of Kropp's failure to deliver documents enabling Buyers to register the herd as exotic cattle. The exhibits also describe the amounts Buyers expended for the care and maintenance of the cattle and their progeny from November 8, 1972 (the date of delivery) to July 12, 1976 (the date the receiver took possession of the remaining cattle). In exhibit 51, Buyers add the loss in sales value and the cost of care and keep to demonstrate the total loss they allegedly sustained as a result of Kropp’s breach of contract. In response to Kropp’s petition for rehearing, we have carefully reexamined the exhibits in question and now conclude that the exhibits contain excessive and du-plicative items of damage. Accordingly, the petition for rehearing is granted, and the court withdraws its prior opinion dated February 28, 1979, and substitutes the attached opinion as the opinion in this case. PER CURIAM. Robert P. Kropp (Seller) appeals from the judgment and order of the district court, following a jury verdict, dismissing his complaint and the counterclaim of the appel-lees, Sylvester Ziebarth, Carol Ziebarth, and Cleon Striegel (Buyers), and directing Kropp to pay Buyers $88,218.51 for attorney’s fees and/or costs and expenses. This action arose out of a contract for the sale of cattle between the aforementioned parties. Federal court jurisdiction rests upon diversity of citizenship and the requisite amount in controversy. The lav/ of Montana, the state in which the parties agreed to performance of the contract, governs this controversy. On appeal Kropp alleges the following incidents of error by the district court: (1) failure to grant Kropp a directed verdict at the completion of Buyers’ case; (2) permitting Buyers to prove their alleged damages with improper evidence; (3) improperly instructing the jury on waiver of contractual provisions; (4) construing the jury’s verdict as requiring that receiver’s deposit be paid to Buyers; and (5) finding that under the contract terms and Montana law Buyers were entitled to recover costs, expenses, and attorney’s fees. We find no merit in Kropp’s allegations numbered 1, 3, and 4. We agree in part with Kropp’s claim concerning damages (item 2), and we remand the case to the district court with directions to enter a re-mittitur of $60,000 on the counterclaim, with the consent of Buyers, or grant a new trial. We believe the trial court erred in its assessment of attorney’s fees and costs (item 5), as the record discloses no reasonable basis for its order that Kropp pay attorney’s fees. Moreover, in light of our order directing a remittitur or a new trial, costs, if assessed, must abide the final outcome of the action upon a new trial. I. Factual Background. In October 1972, Carol and Sylvester Zie-barth and Cleon Striegel purchased thirty-seven head of unregistered half-blood exotic cattle from Robert Kropp of Montana for $30,000. Buyers accepted and transported these cattle to their North Dakota ranches by early November 1972. On November 8, 1972, Kropp contracted to sell Buyers 1,078 head of commercial and exotic cattle fór $815,000. The contract provided that payments for the cattle would be made in the following manner: a $115,000 down payment and four annual installments of $204,-337 from 1973-1976, which included annual interest of 6.5 percent on the unpaid principal balance. Kropp retained a security interest in the cattle and their progeny and, to further secure the amount of the unpaid contract, received a second mortgage on the Ziebarth ranch. For the maintenance and care of the cattle while they remained on Kropp’s land, Buyers agreed to pay Kropp $15,000 annually. The contract further provided that if the exotic cattle were not registered with respective exotic breed associations at the time of sale, Kropp would do everything necessary to register them. Buyers received all the livestock on November 8, 1972, and they immediately commenced transporting some of the cattle from the Kropp ranch in Montana to North Dakota, where the contract cattle were commingled with other livestock owned by Buyers. By May 1973, Buyers had removed all of the contract cattle to North Dakota. Buyers purchased the exotic cattle for use as breeding stock in an upgrading program designed to produce a domestic herd of foreign breed cattle. The upgrading program consists of artificially inseminating domestic cows with the bull semen of exotic breeds, then repeating the insemination process with the ensuing progeny until, after four generations, the domestic breeder develops a “purebreed” exotic strain for registration purposes. As the registerability of the exotic animals with breed associations depends on the quality of the breeder’s records, meticulous records preserving each animal’s pedigree are essential to the exotic upgrading program. Kropp delivered all breeding and calving records to Buyers by March 1973, but Buyers encountered difficulty in matching the cattle with the records. Believing the records to be inadequate, Buyers undertook a blood-typing program to facilitate the identification and registration of the cattle. On August 5, 1973, Kropp and the Buyers entered into an oral agreement — never reduced to writing — that Kropp would pay the expenses for animals that had to be bled for registration purposes. Realizing the inadequacy of Kropp’s registration papers, Buyers began selling the cattle in February 1973. By 1976 Buyers had sold most of the contract cattle. None of the sales were made with Kropp’s prior approval, and Buyers retained all of the sales proceeds. After a down payment and a first installment payment, Buyers refused to make further payments on their contract with Kropp. In October 1975, Kropp filed this action to recover the balance due under the contract, $655,100, and his costs for the care and maintenance of the cattle while they remained on his property. He also sought foreclosure of his liens on the cattle and on the Ziebarth ranch. Buyers answered that Kropp breached the contract because he failed to do everything necessary to register the cattle and because not all of the cattle were qualified for registration as exotic breeds as warranted. Buyers filed a counterclaim for $1.5 million in damages. In their counterclaim, Buyers alleged that, due to Kropp’s breach, they lost sales during the peak exotic cattle market and were forced to accept lower prices for the cattle because of suspect registration and delays in registration. The district court appointed a receiver in 1976 who sold the remaining cattle in Buyers’ possession and deposited the resulting fund with the court. Following an order by the district court on October 15, 1976, dismissing Kropp’s complaint pursuant to Fed.R.Civ.P. 37(b)(2) for prolonged “thwarting” of the discovery process, this court set aside the judgment dismissing the complaint and remanded the case to the district court for trial. Kropp v. Ziebarth, 557 F.2d 142 (8th Cir. 1977). At the conclusion of trial, the jury returned a verdict exactly offsetting the parties’ claims against each other and dismissing the complaint and the counterclaim. The district court denied Kropp’s motion for judgment n.o.v. or for a new trial and entered the following order and judgment: (1) Kropp’s complaint and Buyers’ counterclaim are dismissed; (2) The real estate mortgage held by Kropp against the North Dakota ranch of Buyers Carol and Sylvester Ziebarth is satisfied; (3) The clerk withdraw the monies on passbook deposit and pay the total sum to Sylvester Ziebarth; and (4) Kropp pay Buyers the sum of $88,-218.51 for attorney’s fees and/or costs and expenses. From this judgment, Kropp appeals. II. Issues on Appeal. A. Directed Verdict. In determining whether a verdict should be directed, we utilize the same standard applied by the trial court in originally passing on the motion: was the evidence sufficient to create an issue of fact for the jury? 9 Wright & Miller, Federal Practice and Procedure: Civil § 2524 at 541, § 2536 at 595 (1971). In answering this question of law, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the party opposing the motion. In addition, the evidence must not be susceptible to reasonable inferences sustaining the position of the nonmoving party, that is, a directed verdict is inappropriate where the evidence supports more than one reasonable conclusion. In the instant case, the district court denied Kropp’s motion for a directed verdict and placed the issues of the amount owed to Kropp under the contract and Buyers’ counterclaim simultaneously before the jury. Kropp claims that, because they admitted acceptance of the cattle, Buyers are bound as a matter of law to pay the remainder of the contract price due on the livestock, and he was therefore entitled to a directed verdict on his contract claim. Kropp further argues that the issue of Buyers’ set-off or damages caused by any breach of warranty should have been submitted to the jury separately from and subsequently to his contract claim. Buyers, on the other hand, urge that because of the many controverted issues of fact surrounding their acceptance of the cattle, the trial court did not err in denying the motion for a directed verdict. We think the trial court did not err in refusing a directed verdict. Whether the contract cattle were as represented to Buyers constituted a question of fact for the jury, as did Kropp’s claim for the cost of caring for the cattle. Furthermore, the court’s instructions made it clear that the jury was required to consider how much, if anything, Kropp was entitled to receive and how much, if anything, Buyers were entitled to receive, and Kropp, apart from claiming entitlement to a directed verdict, offered no objection to the form of verdict ultimately submitted to the jury. B. Damages. Kropp alleges the district court erred in permitting Buyers to introduce evidence to prove damages resulting from his breach of contract that was without proper foundation, uncertain and contrary to specific contractual terms. We agree in part with Kropp’s claims for the reasons set forth below. 1. Damage Evidence., Kropp challenges Buyers’ exhibits 34, 51, and 92 as lacking proper foundation and maintains that their introduction into evidence constituted prejudicial error. Among his myriad lack of foundation arguments, Kropp contends that the three exhibits (1) fail to differentiate costs for the maintenance of contract cattle from similar costs for other cattle possessed by Buyers which were commingled with the contract cattle; (2) over-assess the damages caused by the breach, charging Kropp both with the loss in value of the cattle due to registration problems and with the cost of caring for the cattle; (3) are not supported by Buyers’ tax returns; (4) fail to show the number of sales, if any, voided or delayed because of the lack of proper registration papers; (5) fail to show the commercial value of the cattle, notwithstanding the fact that some of the animals could not be characterized as exotic; (6) overcharge for the care and maintenance actually provided; and (7) make use of extraordinarily high trade publication values for the exotic contract cattle and 1973 calves instead of values based on Buyers’ own sales. Claiming that their evidence possesses certainty and proper foundation, Buyers respond that their damage calculations rely partly on values based on Buyers’ own sales and partly on sales values used in the market, as accurately reflected by various trade publications. The evidence submitted to the jury also included an inventory of the cattle in question (exhibits 30, 35) and the registration papers Kropp had delivered to Buyers. In addition, Buyers presented the testimony of experienced cattle buyers concerning market values and the boom market in exotic cattle. The district, court instructed the jury that the measure of damages for breach of warranty is “the difference at the time and place of acceptance between the value of goods accepted and the value they would have had if they would have been as warranted, unless special circumstances show proximate damage of a different amount.” The court then explained the special circumstances relevant to the damage determination in this case. The district court noted that the customary practice of the cattle-breeding trade allowed Kropp up to one year to supply Buyers with proper registration papers for the exotic cattle. According to the exhibits and relevant testimony, Buyers sought to hold Kropp responsible not only for the loss in sales value because the cattle were not as warranted, but also for the cost of care of the cattle far beyond the ordinary period under which a buyer ought to have realized contract compliance would not be forthcoming. Buyers cannot interminably justify taxing damages against Kropp for care and keep of the cattle with the argument that Buyers were simply attempting to mitigate damages by postponing sale of the cattle so that Kropp would have additional time to supply the registration papers. Although we believe Buyers’ damage computation was highly excessive and may well have confused the jury, the nature of the verdict prevents us from precisely determining to what extent the jury may have discounted the inflated figures. Nonetheless, it appears clear that the jury must have been improperly influenced, to some degree, by the introduction of the extended cost of care expenditures and the November 1972-November 1973 cost of care figures into evidence as part of Buyers’ damage package. In light of the unreasonable cost of care figures appearing on Buyers’ exhibits and presented to the jury, it would be a denial of justice to permit the verdict to stand. In his amended complaint, Kropp requested $572,474.60 as the balance due under the installment contract with Buyers, and Buyers counterclaimed for $1.5 million in damages due to Kropp’s breach of contract. The jury determined that neither Kropp nor Buyers were entitled to recover from the other. However, as we previously observed, the jury must have been improperly influenced by the unreasonable and duplicative cost of care figures represented in Buyers’ exhibits. Consequently, we believe the jury’s verdict on Buyers’ counterclaim is excessive. In light of the case’s complexity, the already large record, and the length of time that has transpired since the events in question, we hesitate to order a new trial without an option for a remittitur on the offsetting counterclaim. We suggest that the verdict on the counterclaim be reduced by $60,000, our estimate of the effect on the verdict of the inflated and duplicative damage figures. Accordingly, we remand the case to the district court with directions to enter, with the consent of Buyers, a remittitur on the counterclaim of $60,000, attorney’s fees of $9,000, and no costs to either party. The net effect of the remittitur would be to give Kropp an award of $69,000. Such judgment on remittitur will bear interest only from the date of its entry. If Buyers refuse to accept the reduced counterclaim, the district court is directed to grant a new trial in this case. 2. Warranties. Kropp alleges the trial court erred in instructing the jury that the contract contained an implied warranty that the exotic cattle were fit for sales purposes. He claims that the installment contract and security agreement of November 8, 1972, warranted only the registerability of the exotic cattle with respective breed associations. Kropp argues that the contract’s language excludes any implied warranties concerning the 1973 progeny of the 1972 contract cattle, and, therefore, he should not be held liable for Buyers’ alleged loss in profits on the projected 1973 calf crop due to registration difficulties with the exotic mother cows. Kropp raises his objections to the warranty instructions for the first time in this court. That objection comes too late to preserve the alleged error on appeal. See Boeing Airplane Co. v. O’Malley, 329 F.2d 585, 598 (8th Cir. 1964). But even if we construe Kropp’s “original objection to the instructions” as an effective objection to warranty instructions numbered 10 and 11, we find no merit to Kropp’s allegations on this matter. The record discloses that Buyer purchased the cattle for use as breeding stock in a domestic upgrading program of exotic animals. Kropp explicitly warranted that the livestock would be registrable and “clean and merchantable.” In addition, the contract stated that “Buyers intend to use the remaining [cattle] for breeding purposes and the parties understand such usage will of necessity result in further sales of said property in the normal course of such breeding[.]” In other words, Buyers’ sales were contemplated even though the cattle were purchased for a breeding program. In instructions numbered 10 and 11, the district court defined the contrary warranty in language borrowed from Mont.Rev.Codes Ann. §§ 87A-2-314, 315 (1964). The district court committed no error in instructing the jury that the contract called both for the cattle to be registerable and to be fit for the particular purpose of breeding for higher percentage exotic calves in an upgrading program. The district court’s suggestion in its instructions that Buyers’ sales could be anticipated and that the exotic cattle should be fit for such sales is a reasonable construction of the terms of the agreement. C. Waiver. The installment contract and security agreement provide that “[a]ll waivers under this contract and agreement must be in writing.” On August 5, 1973, after Buyers realized the registration papers for the contract cattle were not forthcoming as quickly as they had hoped, the parties orally agreed that the unregistered exotic livestock would be bled for identification purposes, with Kropp absorbing the costs of the program. Kropp suggests that one purpose of the oral agreement, as evidenced by Buyer Zie-barth’s acceptance of Kropp’s payment for the blood-typing program, was Buyers’ waiver of their claim that Kropp breached his contractual duty to prepare registration certificates. Mont.Rev.Codes Ann. §§ 87A-2-208, 209 (1964) provide that “any course of performance accepted or acquiesced in” is relevant to the interpretation of a contract’s meaning and that a contract provision requiring that all contract modifications be in writing can be waived. Kropp contends that the trial court’s instruction number 9, which explains that a “signed agreement which excludes modification * * * except by a signed writing cannot be modified * * * by oral agreement or otherwise,” is contrary to Montana law and constitutes prejudicial error. The record reveals that Kropp did not object to instruction number 9 and failed to raise it as error in posttrial motions. Kropp contends, however, that his proposed instruction number 16, denied by the district court, was tantamount to an objection to instruction number 9. We do not agree, and we hold that Kropp has not preserved his objection on this matter. In any event, the giving of instruction number 9 in the context of the entire case was not prejudicial to Kropp. The effect of the alleged oral agreement was to allow Kropp an opportunity to mitigate the damages attributable to his breach. The record does not indicate that Buyers waived any of their rights under the contract by the foregoing oral arrangement. As already indicated, the issues concerning damages, including the extent of Kropp’s mitigation, were properly presented to the jury. D. Receiver’s Deposit. A court-appointed receiver took control of the remaining contract cattle in Buyers’ possession on July 12, 1976, and he eventually sold the cattle and deposited the resulting fund of $33,462.75 with the court. After the jury returned its verdict giving Buyers a complete set-off against the unpaid balance on the contract, the district court awarded the deposit to the Buyers. Kropp challenges the district court’s disposition of the deposit, asserting (1) that he retained a security interest in the cattle and therefore possessed an interest in the proceeds of the receiver’s sale of the cattle, and (2) that he was denied a jury trial on the issue of entitlement to the deposit because the question of whether the money was his as payment due on the contract had not been submitted to the jury. We deem the district court’s decision to give Buyers the deposit justifiably follows from the jury’s finding that neither Buyers nor Kropp were entitled to recover any money from the other party. The verdict extinguished any security interest Kropp retained in the cattle and terminated any obligations between the parties. At the time of the receiver’s sale the cattle were the property of Buyers, and, therefore, the district court did not err in presenting the deposit to Buyers. E. Attorney’s Fees, Costs, and Expenses. The installment contract and security agreement provides that: [SJhould [Kropp] refer this contract for collection to an attorney not a salaried employee of [Kropp], Buyers shall pay to [Kropp] reasonable attorneys’ fees not exceeding fifteen percent (15%) of the amount due and payable under this contract and [Kropp] shall also be entitled to recover court costs and actual and reasonable out-of-pocket expenses incurred in connection with any delinquency. The pertinent Montana statute provides that in the event the party having that right shall bring an action upon the contract or obligation, then in any action on such contract or obligation all parties to the contract or obligation shall be deemed to have the same right to recover attorney fees, and the prevailing party in any such action, whether by virtue of the express contractual rights, or by virtue of this act, shall be entitled to recover his reasonable attorney fees from the losing party or parties. [Mont.Rev.Codes Ann. § 93-8601.1 (1964).] The prevailing party in a suit is entitled to reasonable attorney’s fees, and the right to attorney’s fees delineated in a contract is reciprocal under governing Montana law. The jury found that neither party was entitled to recover from the other. The district court apparently construed the verdict to mean that Buyers had established on their counterclaim an entitlement to an amount equal to the remainder of the price due under the contract. Without further analysis, the court declared Buyers the “prevailing party” and directed Kropp to pay them $88,218.51 for attorney’s fees and/or costs and expenses. The record does not justify any determination that Buyers, under the contract and Montana law, should be deemed the “prevailing party.” The contract authorizes the prevailing party to receive “fees not exceeding fifteen percent (15%) of the amount due.” However, no basis for calculating those fees exists here, because the jury determined that no amount was due to either party. But even before reaching the computation stage, we find no persuasive justification in the district court’s reasoning or clear support in Montana case law for the court’s view that only Buyers prevailed in this case. Depending on one’s perspective, both parties either successfully fended off large claims or established their entitlement to large claims negating each other. Buyers have not shown themselves to be entitled to attorney’s fees and costs under the contract, and the attorney fee part of the district court’s judgment must be set aside. In the event the case is tried anew, the matter of costs ultimately will be determined under Fed.R.Civ.P. 54(d). That subsection provides for allowance of costs “to the prevailing party unless the court otherwise directs.” On the present judgment, we set aside the district court’s determination of costs. Accordingly, we vacate the awards of attorney’s fees and costs, reverse the judgment of the district court, and remand for further proceedings consistent with this opinion. . The Honorable Bruce M. Van Sickle, United States District Judge for the District of North Dakota. . The district court judgment also indicated that a mortgage Kropp had received as security interest in the cattle on a ranch in North Dakota owned by the Ziebarths was satisfied and directed that certain funds held in receivership from the sale of contract cattle be paid to Sylvester Ziebarth. . In a postjudgment motion, Kropp sought a judgment n.o.v. or, in the alternative, a new trial for the amount remaining due under the contract. . The exotic cattle referred to in the text of the opinion include several breeds of non-native cattle, specifically, Limousin, Simmental and Maine-Anjou. . According to the terms of the contract, Kropp waived his security interest with respect to the first 400 head of cattle sold by Buyers which had the approximate total value of $150,000. . In an amended complaint Kropp reduced his claim by $52,000 for the variance in the number of specific exotic cattle Buyers contend they did not receive. He also reduced by some $18,500 his claim for the care of the cattle while they remained on his premises. The amended complaint, then, prays for a judgment of $572,474.60, plus attorney’s fees. . Exhibit 34 itemizes the costs incurred by Buyers in keeping the contract cattle and is based on costs, receipts, and documents kept by Zie-barth in the course of his managing the cattle. Exhibit 51, a summary based on exhibit 34, shows the proceeds from the sale of some exotic Simmental contract cattle and projects what the value of the 1973 progeny would have been had the mother cows been properly registered. It also includes the cost for care and maintenance of the contract cattle. Exhibit 92 individualizes the alleged damages sustained by Buyers due to Kropp’s breach into the following main categories: loss in value of exotic cattle and loss from caring for cattle because of sales problems due to registration difficulties; loss caused by diminished value of 1973 calf crop because contract cattle failed to fulfill the warranty of the November 1972 agreement; and cost of care for the 1973 calves, which if not for registration problems, would have been sold. . Kropp contends that Buyers’ damage figures are uncertain in that they are not based on any viable market, improperly include lost profits on the 1973 calf crop, and are based on the speculative loss of a “boom” market in exotic cattle. He also repeats points alleged in his lack of foundation claim, i.e., the figures fail to distinguish between the November 1972 contract cattle and other cattle, are based on the highest trade publication values listed and include the cost of care for both conforming and nonconforming cattle under the contract. . To be recoverable for breach of contract, damages must be “clearly ascertainable.” See Mont.Rev.Codes Ann. § 17-302 (1964); Lovely v. Burroughs Corp., 165 Mont. 209, 527 P.2d 557 (1974). . The court gave the following instruction to the jury concérning those special circumstances: 1. The fact that the goods were cows bred to produce a higher percentage exotic calf and that said calf would not be weaned from the cow until approximately one year after the date of acceptance. 2. The fact that said cows were not readily merchantable without a registration certificate, and said certificates of registration were not instantly available, but rather the custom of the trade at the time provided for a delay of as much as one year in the delivery of registration papers. 3. The provisions of the contract provided that buyers would be able to maintain certain of the cattle on the premises of the seller until approximately one year after the acceptance of the goods. In a proper case, and it is for you the jury to determine whether or not this is a proper case, the buyer may recover incidental and consequential damages in addition to the damages for breach of warranty. Such incidental damages may include any other reasonable expense incident to the delay in performance or other breach by the seller. Consequential damages resulting from the seller’s breach include any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented. . Buyers seek recovery for monies expended for the care and maintenance of the cattle and their progeny from the date of delivery until the receiver took control of the remaining cattle nearly four years later. . We note that if the cattle as warranted had been delivered on the contract date, Buyers, at their cost, would have had to care for the cattle from the date of their acceptance to the time— October or November 1973 — when the 1973 calves could be weaned from the cows. Consequently, we fail to see why Buyers should not absorb the November 1972-November 1973 cost of care for the basic exotic herd, even though they were not as warranted, in light of the custom of the trade providing for “a delay of * * * one year in the delivery of registration papers.” Whether or not Kropp breached the contract, Buyers, having decided to keep the herd and to sue for breach of warranty, incurred the obligation to pay for the care of the herd during that one year period. . See note 11 supra. . The contract between Kropp and Buyers stated, in pertinent part, that “Buyers shall pay to [Kropp] reasonable attorneys’ fees not exceeding fifteen percent (15%) of the amount due and payable under this contract].]” The $9,000 awarded as attorney’s fees constitutes 15% of the $60,000 granted Kropp on remitti-tur. . Because the questions of liability and the extent of damages are intertwined, we must order a new trial on all issues, not just damages. . The contract provided in pertinent part: Buyers accept said property without any warranties or representations of any kind, except as otherwise stated in ADDITIONAL COVENANTS OF BUYERS AND SELLER below. No agreement, promise or warranty not expressed herein and no defect in condition or quality of the property shall bind or afford a defense against any assignee hereof or other holder hereof. Relevant “additional covenants” include the following provisions: “Seller * * * warrants and agrees said ‘exotic’ breeds shall qualify for registration under the rules and regulations of the respective associations”; “Seller shall * * * do any and all things necessary to register said breeds;” and “Seller warrants that all of said property is, or shall be at the time of possession of said property is given to Buyers, clean and merchantable^]” . It is reasonable to assume that in entering the agreement both parties intended the exotic cattle to be fit for breeding in an upgrading program for the purpose of developing higher percentage exotic calves. Kropp’s breach of the warranty of registerability allegedly caused a number of misbreedings. The 1973 calves, intended to be the first step in developing a purebred strain of exotic cattle, were much less “pure” in terms of foreign blood than expected, because of Kropp’s breach of warranty with respect to the mother cows. . Section 87A-2-208 (1964) provides: Course of performance or practical construction. (1) Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course or performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement. (2) The express terms of the agreement and any such course of performance, as well as any course of dealing and usage of trade, shall be construed whenever reasonable as consistent with each other; but when such construction is unreasonable, express terms shall control course of performance and course of performance shall control both course of dealing and usage of trade (section 87A — 1—205). (3) Subject to the provisions of the next section on modification and waiver, such course of performance shall be relevant to show a waiver or modification of any term inconsistent with such course of performance. . The applicable portion of § 87A-2-209 provides: Modification, rescission and waiver. (1) An agreement modifying a contract within this chapter needs no consideration to be binding. (2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party. ****** (4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver. . Although Kropp contends the discussion at volume VII of the transcript, pp. 183-94, fully advised the court of Seller’s position regarding instruction no. 9, that transcript excerpt concerns the admissibility of a portion of a deposition dealing with the oral agreement, and does not constitute an effective objection to the instruction. . Because of accumulated interest, the receiver’s deposit at the time of withdrawal had increased to $34,206.63. . Although the specific question of who should receive the deposit was not submitted, the jury heard testimony about the status and amount of the fund, and the receiver testified concerning the fund’s origin. . This deposit, if still in existence, should stand as partial security for the judgment entered on remittitur. . We discuss these issues only in the context of a judgment which dismisses both the complaint and the counterclaim. . The parties stipulated that the court should determine the issue Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy 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. BALLWOOD CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 5674. Circuit Court of Appeals, Third Circuit. June 3, 1936. Morgan S. Kaufman, of Scranton, Pa., and S. Leo Ruslander, R. J. Cleary, and Wm. A. Seifert, all of Pittsburgh, Pa., for petitioner. Frank J. Wideman, Asst. Atty. Gen., Sewall Key and Lucius A. Buck, Sp. Assts. to Atty. Gen., and Morton K. Rothschild, of Washington, D. C., for respondent. Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges. THOMPSON, Circuit Judge. This is a petition for rehearing of a decision of this court in Ballwood Company v. Commissioner, filed July 16, 1935, in which in a per curiam opinion we affirmed a decision of the Board of Tax Appeals. The petitioner, in accordance with an agreement made with the Midwest Pipe & Supply Company, hereinafter called Midwest, conveyed its pipe fabricating assets representing approximately 29 per cent, of its total assets to the Ballwood Pipe Fabricating Corporation, a newly organized corporation. The petitioner received all of the new corporation’s capital stock and conveyed the same to Midwest in exchange for approximately 18 per cent, of Midwest capital stock. Midwest transacted the pipe-fitting business, theretofore transacted by the petitioner, through its so-called “Ball-wood Division, Midwest Piping -Supply Company.” The petitioner’s sole stockholder served as manager for the Ballwood Division. The Ballwood Pipe Fabricating Corporation continued in existence as a holding company for the assets transferred to it by the petitioner. The Commissioner ruled that the difference between the cost to the petitioner of the Ballwood Pipe Fabricating stock and the market value of the Midwest stock was taxable. The petitioner contended that the gain was nontaxabl'e because derived from a tax-free reorganization. The pertinent statutory provisions and Treasury Regulations are set out in the margin. As a result of the various transfers outlined above, the petitioner had an 18 per cent, interest in Midwest, which in turn owned all the stock of the Ballwood Pipe Fabricating Corporation. It is apparent that the same results might have been achieved by an outright sale. The petitioner could have transferred directly to Midwest all of its assets involved in the pipe-fitting business and received in payment therefor 18 per cent, of Midwest stock. Nevertheless, what was done amounted to a reorganization, for as a result of the somewhat complicated transfers, Midwest acquired not merely, a majority, but all of the stock of the B.allwood Pipe Fabricating Corporation. Section 112 (i) (1) (A) of the Revenue Act of 1928 (26 U.S.C.A. § 112 note) gives one definition for the term “reorganization” as a “merger or consolidation (including the acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation. * * ).” This definition obviously enlarges the usual meaning of the words “merger or consolidation.” Giving the words of the statute their plain and unambiguous meaning, we must reach the conclusion that what took place in the instant case amounted to a statutory reorganization in which there was no gain or loss under the provisions of section 112 (b) (3) and (4) of the statute (26 U.S.C.A. § 112 (b) (3, 4) and note), for the stock of the Ballwood Pipe Fabricating Corporation was property in the hands of the taxpayer. It may also be pointed out that the petitioner’s 18 per cent, stockholdings in Midwest give it an interest in the affairs of that company fairly representing the value of the assets transferred by it to the newly organized corporation in accordance with the agreement between it and Midwest. Pinellas Ice Co. v. Commissioner, 287 U.S. 462, 53 S.Ct. 257, 77 L.Ed. 428. The Board of Tax Appeals, relying upon its own prior decisions in Watts v. Commissioner of Internal Revenue, 28 B.T.A. 1056 and Minnesota Tea Company v. Commissioner of Internal Revenue, 28 B.T.A. 591, held that the gain resulting from the transaction was taxable. The Board’s ruling in the Watts Case was reversed by the Second Circuit Court of Appeals in 75 F.(2d) 981, and in the Minnesota Tea Case by the Eighth Circuit Court of Appeals in 76 F.(2d) 797. The Supreme Court affirmed in opinions filed December 16, 1935. The final decisions in those cases, therefore, are favorable to the taxpayer. We note that neither this court nor the Board of Tax Appeals had the benefit of the Supreme Court decisions in those cases at the time of the original argument. In the Watts Case three taxpayers were the sole stockholders of the United States Ferro Alloys Corporation. They exchanged all their stock for shares of the Vanadium Corporation of America and mortgage bonds of Ferro, guaranteed by Vanadium. The Supreme Court held that the gain derived from this exchange was nontaxable because of the acquisition by Ferro of the majority of the total number of shares of all classes of Vanadium stock. In the Minnesota Tea Case the taxpayer, pursuant to a plan previously agreed upon, transferred all its assets and business to the Grand Union Company and received in exchange certificates of the common stock of that company and $426,842.56 in cash. The taxpayer retained the certificates and distributed the cash to its stockholders who assumed to pay $106,471.73 of the .taxpayer’s outstanding debts. The Supreme Court held that the acquisition by one corporation of substantially all the properties of another corporation amounted to a tax-free reorganization under section 112 (i) (1) (A) of the Revenue Act of 1928. It ruled that the decision in Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355, was inapplicable, since nothing in the Minnesota Tea Company Case suggested other than a bona fide business transaction. We therefore conclude, upon a literal construction of the Revenue Act of 1928 and by analogy to the decisions in Watts v. Commissioner, supra, Helvering v. Minnesota Tea Company, 296 U.S. 378, 56 S.Ct. 269, 80 L.Ed. 284, and G & K Manufacturing Company v. Helvering, 296 U.S. 389, 56 S.Ct. 276, 80 L.Ed. 291, opinion filed December 16, 1935, that no taxable gain arises by reason of the described transaction. Our decision, as set forth in the per curiam opinion filed July 16, 1935, is vacated and set aside, and the decision of the Board of Tax Appeals is reversed. Section 112 of Revenue Act of 1928, 45 Stat. 816 (26 Ü.S.C.A. § 112 and note): Recognition of Gain or Loss (a) General rule. Upon the sale or exchange of property the entire amount of the gain or loss determined under section 111, shall be recognized, except as hereinafter provided in this section. (b) Exchanges solely in kind — * * (3) Stock for stock on reorganization. No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization. (4) Same — Gain of corporation. No gain or loss shall be recognized if a corporation a party to a reorganization exchanges property, in pursuance of the plan of reorganization, solely for stock or securities in another corporation a party to the reorganization. * * * (i) Definition of reorganization. As used in this section and sections 113 and 115— (1) The term “reorganization” means (A) a merger or consolidation (including the acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation, or substantially all the properties of another corporation), or (B) a transfer by a corporation of all or a part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred, or (C) a recapitalization, or (D) a mere change in identity, form, or place of organization, however effected. (2) The term “a party to a reorganization” includes a corporation resulting from a reorganization and includes both corporations in the case of an acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation. (j) Definition of control. As used in this section the term “control” means the ownership of at least 80 per centum of the voting stock and at least 80 per centum of the total number of shares of all other classes of stock of the corporation. Article 574 of Treasury Regulations 74: Exchanges in connection with corporate reorganizations. — The Act provides that no gain or loss shall be recognized if, in pursuance of a plan of reorganization, stock or securities in a corporation a party to a reorganization are exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization, or if, in pursuance of a reorganization plan, a corporation a party to a reorganization exchanges property solely for stock or securities ■■in another corporation a party to the reorganization. If two or more corporations reorganize, for example, by— (1) The merger of the X Corporation into the Y Corporation, (2) The consolidation of the X Corporation and the Z Corporation into the Y Corporation, a new corporation, (3) The acquisition by the Y Corporation of a majority of the voting stock and a majority of the total number of shares of all other classes of stock of the X Corporation or of substantially all of the properties of the X Corporation, or (4) The transfer by the X Corporation of a part of its assets to the Y Corporation where immediately after the transfer the X Corporation or its shareholders or both are in control of the Y Corporation— then no taxable income is received from the transaction by the X Corporation or the Z Corporation if the sole consideration received by the corporations is stock or securities of the Y Corporation; and no taxable income is received from the transaction by the shareholders of either the X Corporation or the Z Corporation if the sole consideration received by the shareholders is stock or securities of the Y Corporation. 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_genapel1	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. 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. FRENE et al. v. LOUISVILLE CEMENT CO. No. 8009. United States Court of Appeals for the District of Columbia. Decided Jan. 25, 1943. Mr. Vincent L. Toomey, of Washington, D. C., for appellants. Mr. George E. Hamilton, Jr., with whom Messrs. George E. Hamilton, John J. Hamilton, and Henry R. Gower, all of Washington, D. C., were on the brief, for appellee. Before STEPPIENS, EDGERTON, and RUTLEDGE, Associate Justices. RUTLEDGE, Associate Justice. The special appeal is from a judgment quashing the service of process upon the defendant, appellee here, a Kentucky corporation. Plaintiffs’ suit for damages was founded on defendant’s alleged false representations inducing them to use its product “Brixment” in constructing their residence in Washington. Brixment was represented as a waterproofed mortar or cement used in masonry work. Process was served by delivery to defendant’s employee, C. E. Lovewell, within the District of Columbia. Appearing specially, defendant moved to quash the service on the ground it was not doing or transacting business within the District at or prior to the time of service, within the meaning of Section 13 — 103, D.C.Code 1940. After hearing upon affidavits and the testimony of Lovewell, the court made findings of fact and conclusions of law in defendant’s favor and entered judgment accordingly. The principal questions are whether Section 13 — 103 is applicable to the facts of this case and, if so, is valid in this application. On the record this comes down to whether Lovewell’s activities on defendant’s behalf constitute “doing business” or “transacting business” within the District so as to make it amenable to process in this jurisdiction. We think the answer should be in the affirmative and the judgment should be reversed. Section 13 — 103 is as follows: “In actions against foreign corporations doing business in the District all process may be served on the agent of such corporation or person conducting its business, or, in case he is absent and can not be found, by leaving a copy at the principal place of business in the District, or, if there be no such place of business, by leaving the same at the place of business or residence of such agent in said District, and such service shall be effectual to bring the corporation before the court. “When a foreign corporation shall transact business in the District without having any place of business or resident agent therein, service upon any officer or agent or employee of such corporation in the District shall be effectual as to suits growing out of contracts entered into or to be performed, in whole or in part, in the District of Columbia or growing out of any tort committed in the said District.” - The facts are largely undisputed. Defendant is a Kentucky corporation. Its principal office and place of business are at Louisville in that state. It maintains no office or place of business in the District of Columbia. Defendant’s business is selling cement and cement products, including Brixment. Lovewell resides in Chevy Chase, Maryland, a suburb of Washington. His telephone number, which is displayed together with his home address, his name and defendant’s, upon his business' card, is listed in the Washington directory. There is no evidence he or defendant has any other in this vicinity. Lovewell is a graduate engineer and uses this training in his work for the defendant, to which he devotes his entire time. He has authority to solicit orders for defendant’s products, and his territory comprises all of Maryland, except the two western counties, the District of Columbia., and the eastern part of Virginia. He spends two-thirds to three-fourths of his time in Washington, which he characterizes as “the biggest market in my territory.” The volume of business must be considerable in view of his statement: “We sell quite a quantity' of this material * * . If this were a nice construction day, there would be literally hundreds of jobs going on in the District of Columbia using our material.” According to the evidence for defendant, Lovewell had no. authority to conclude contracts or make binding sales. When he secured orders he forwarded them to the home office in Louisville where they were accepted or rejected. Shipments on orders accepted were made “in interstate commerce” to building supply dealers in the vicinity of the job, who in turn supplied them to contractors or other consumers. In this case the order was stimulated by Lovewell’s energetic selling methods, but the shipment by defendant was to the Hudson Supply and Equipment Company, a Washington dealer, which billed and delivered the merchandise to the plaintiffs. Defendant asserts that Lovewell’s authority over orders he transmits ceases with that act and his duties to the company respecting them end then. However, it is admitted that he fre- . quently visits jobs in course of construction where the defendant’s products are being used. On these occasions he “would note the manner in which the products were being installed or used and if any difficulties were being experienced, he would make suggestions as to how to overcome them; he would also go over any complaints with regard to the materials” and report them to the home office. He had no authority finally to make adjustments or compromises. Lovewell called at the plaintiffs’ house three or four times during the course of construction and “half a dozen times” at another job then being done in the District for the Government. In connection with the latter, he took specimens of the work to government agents “for testing purposes * * to have approval by the Government.” During these visits he inspected the work as it progressed, saw that the Brixment was properly mixed, was being properly spread, was being used as the defendant intended, and pointed out the values of different brick textures and bondings when used with Brixment. According to the plaintiff Leo Frene, Lovewell carefully looked over the plans and specifications for his house, “visited the work regularly while in course of construction, and pointed out minor and major details to the brick-masons.” Frene also stated he knew “of many other jobs where said Lovewell has not alone sold the Brixment, but has participated in and exhibited his engineering ability and fitness in order to promote and advance the general scheme of the work.” Lovewell testified that his employer “told me to go on the job and see how they are progressing, how they like the material, how they are satisfied with it, and so forth” and “the idea is to use my best judgment in promoting satisfactory use of this material.” The record further shows that Lovewell regularly secured information for his employer from various governmental agencies and departments, including the Bureau of Standards, the Procurement Division of the Treasury Department, and the Government Printing Office. He admitted this work called upon “his engineering ability and not his sales ability,” that it related in part to specific matters affecting his employer’s work, such as failure of its materials to pass government specification with resulting throwback by the contractor, and that the defendant would write instructing him to check up on the matter. He was useful also in securing more general information. All this activity subsequent to the soliciting phase of his work defendant and Love-well say constituted no part of his duty to itself or authority granted by it. On the contrary it is said this work was done entirely on Lovewell’s initiative and “with the exception of the solicitation of orders for the products of the Company he has no authority .to represent said Louisville Cement Company in any wise' whatsoever.” Lovewell testified, in support of this view, that his work, after the sale is effected, is “just to maintain the good relations between ourselves, as a producer of a product, and the user,” but this was not part of bis duties to the defendant and he “did not think” it would be a breach of his employment if he should fail to visit any of “a hundred jobs going on.” Uncertainty regarding this, however, is reflected variously in bis testimony that the phases of his work following solicitation proper were done “only in a reporting capacity,” “merely of my own discretion,” and “No duty, no sir — not unless I am told to go and see the man or call on the job.” The record discloses a convenient vagueness of memory when Lovewell was .pressed for details concerning his actual performance of these parts of his work. The trial court accepted defendant’s view of the nature of Lovewell’s activities, first, while he was testifying in response to inquiry concerning what he did in connection with a sale after it was effected, by stating: “I do not think what you do is important. It is what you are authorized and directed to do by your corporation and what they expect you to do.” And in its memorandum opinion the court said that “all the duties that he performed in Washington were tied in with the matter of soliciting business,” concluding that the services rendered after delivery “would not in any sense be the business of the company,” since they were not required by it, but rather were his own work which “would help him gel additional orders.” The findings of fact reflect these views, as does the conclusion of law. They are set forth in the margin. In brief the position taken by defendant and the trial court is that Lovewell’s activities, including what he did in the stage of performance of defendant’s obligations, constitute nothing more than “mere solicitation” of business and, under the controlling authorities, this is not sufficient to bring the defendant within the reach of judicial process in a suit brought against it in personam in this jurisdiction. Implicit in this position are two subordinate, but hardly consistent propositions: first, that Lovewell’s activities after the stage of solicitation proper were in themselves nothing more than' the creation of good will and furtherance of good relations between defendant and its customers or the ultimate consumers of its products, and therefore were merely part of the soliciting process; second, that these activities were not required of Lovewell as part of his duties nor authorized by the defendant and hence were purely personal, not official nor representative acts on his part. The latter proposition implies that a principal is bound by the acts of his agent only when his duties require him to perform them and is not bound by any act of the agent not so required, even though it may be approved or permitted by the principal and he may regularly accept the benefits of such acts. Section 13 — 103 is broad enough in its terms to include this case, unless such a construction is forbidden by the controlling authorities. We do not think it is. I. The tradition has grown that personal jurisdiction of a foreign corporation cannot be acquired when the only basis is “mere solicitation” of business within the borders of the forum’s sovereignty. And this is true, whether the solicitation is only casual or occasional or is regular, continuous and long continued. The tradition crystallized when it was thought that nothing less than concluding contracts could constitute “doing business” by foreign corporations, an idea now well exploded. It is now recognized that maintaining many kinds oh regular business activity constitutes “doing business” in the jurisdictional sense, notwithstanding they do not involve concluding contracts. In other words, the fundamental principle underlying the “doing business” concept seems to be the maintenance within the jurisdiction of a regular, continuous course of business activities, whether of not this includes the final stage of contracting. Consequently it is not clear that if, in addition to a regular course of solicitation, other business activities are carried on, such as maintaining a warehouse, making deliveries, etc., the corporation is “present” for jurisdictional purposes. And very little more than “mere solicitation” is required to bring about this result. Furthermore, since the tradition crystallized, other developments in the law of personal jurisdiction have cast doubt upon its validity. These in general have expanded the scope of jurisdictional power over the persons of nonresidents, including foreign corporations. It is still true, generally speaking, that mere casual and occasional acts do not furnish a sufficient basis for assertion of jurisdiction of the person in cases of nonresidents. But the nonresident motorists’ statutes, which are applicable to foreign corporations, and the fact they have been so widely enacted and sustained, show two things among others. The first, like the cases sustaining jurisdiction upon a basis of “solicitation plus,” is that contracting, casually or continuously, is not essential for jurisdictional purposes, nor is negotiation, solicitation, or other activity looking toward the formation of contracts. The second is that some casual or even single acts done within the borders of the sovereignty may confer power to acquire jurisdiction of the person, provided there is also reasonable provision for giving notice of the suit in accordance with minimal due process requirements. Other instances may be noted. Old notions concerning want of power over nonresident partners and partnerships have been modified or discarded. New forms of service have been invented and sustained. In general the trend has been toward a wider assertion of power over nonresidents and foreign corporations than was considered permissible when the tradition about “mere solicitation” grew up. Although a wide breach has been made by the nonresident motorists’ statutes, the principle probably still holds generally that merely casual or occasional acts, not constituting a regular or continuous course of business, are not sufficient to sustain personal jurisdiction over nonresidents or foreign corporations. But when jurisdiction has been extended to include some types or kinds of occasional acts and nearly all kinds of continuous operations, the rule which nullifies judicial power when a foreign corporation engages continuously and regularly in “mere solicitation” is, to say the least, anomalous. Solicitation plus maintaining an office is sufficient. Solicitation plus maintaining a warehouse likewise sustains jurisdiction. Solicitation plus making deliveries, collections and handling claims, has like effect. Solicitation without these additional activities, or any of them, may be more sustained, more insistent, more productive of business than it is with them. Solicitation is the foundation of sales. Completing the contract often is a mere formality when the stage of “selling” the customer has been passed. No-business man would regard “selling,” the “taking of orders,” “solicitation” as not “doing business.” The merchant or manufacturer considers these things the heart of business. It is perfectly possible, under the “mere solicitation” rule, for a foreign-corporation to confine its entire market to-a single jurisdiction, yet by carefully limiting its activities there to the soliciting phase, to force each of its customers having cause for legal redress to seek it in the foreign forum of incorporation. By careful segregation of the “selling” phase in the place of market, a substantially complete immunity to liability, in the practical sense, could be created. It would seem, therefore, that the “mere solicitation” rule should be abandoned when the soliciting activity is a regular, continuous and sustained course of business, as it is in this case. It constitutes, in the practical sense, both “doing business” and “transacting business,” and should do so in the legal sense. Although the rule has.not been clearly and expressly repudiated by the Supreme Court, its integrity has been much impaired by the decisions which sustain jurisdiction when very little more than “mere solicitation” is done. II. But it is not necessary to take the final step in repudiation in this case, since the facts are sufficient to bring it within the “solicitation plus” rule. Lovewell’s activities on behalf of defendant were not limited to "mere solicitation.” He was not required by his original authorization to do more than this. But he did more, did it regularly, and did it with defendant’s knowledge, consent and approval. He not only solicited and forwarded orders. He visited the jobs where defendant’s product was being used, made suggestions for solving difficulties which arose in its use, received complaints, forwarded them to the home office and, while he had no authority to make final settlements or contractual adjustments, aided generally both in preventing and in clearing up misunderstandings and difficulties arising in the course of performance of defendant’s contracts. While this additional activity was not formally required of him, it was authorized, if in no other way, by defendant’s acquiescence and continued acceptance of the benefit of his efforts in these respects. The record, however, shows more than acquiescence, approval and acceptance of benefits by defendant. Lovewell testified that in some instances defendant expressly instructed him to visit specific jobs where its product was being used and to assist in straightening out whatever complications had arisen or might arise. Apparently this happened repeatedly and Love-well considered this work a part of his employment when he was so instructed. His testimony also confirmed his authority to engage in these activities, when he said he did them “in a reporting capacity,” though it also disclosed he did much more than report. Lovewell’s acts beyond the stage of solicitation proper were therefore not unauthorized. In circumstances such as we have here, the test of an agent’s authority is not found, as defendant and the trial court assumed, in the inquiry whether he is required to do the questioned act by the formal instructions of the principal or his failure to do it would be a breach of his duty to the employer. It is rather in the nature of the act, its relation to the employer’s business and whether the employer has assented to it either by explicit modification of the original, formal instructions or impliedly by a course of conduct inconsistent with the limitations they impose. It is argued that Lovewell’s postsolicitation activities were not part of his job or rendered in the course of his employment, because he did them acting “on his own initiative” and “to create good will.” That he did them “on his own initiative” does not mean, as has been shown, that they were not authorized by defendant. Nor does the fact that their purpose and effect was “to create good will” take them out of the scope of his employment or make them “purely personal” acts. On the contrary, that is one of the things which make them inherently part of his work done on defendant’s behalf. It is true he did these additional acts on his own behalf, and with a view to increasing his financial returns from his work. So every good agent or salesman does like things, for the same reason. But it is not true that Love-well did not do them also “for and on account of” his principal, the defendant, and with its approval. By so much as he increased his returns through this activity, by just so much was he paid for it by the defendant. It, as well as he, derived additional benefit and business from it. It was work directly related to his employment, not concerned with his purely private affairs. It was beneficial to both himself and his principal. If he performed it well, the necessary effect was to create good will for the defendant, as well as for himself. But the effect was not always or merely this. It was also the prevention of claims and disputes. It was taking a part, though not a final one, in adjusting them. It was aiding with performance of the company’s obligations. These things amount to more than creating good will and therefore to more than “mere solicitation.” Defendant’s argument is based on two fallacies. One is that when .an agent voluntarily engages in activity, connected as this was to the subject matter of the agency, so as to bring additional advantage ■ to himself and at the same time to his principal, he acts only on his own account, notwithstanding the principal repeatedly accepts and retains the benefit of such activity. That the agent derives a benefit from what he does in extending his principal’s business does not justify this conclusion. The second fallacy is that anything which promotes good will is “mere ■solicitation.” According to that criterion everything an employer or an agent might do which would tend to cause customers to return or new ones to come by learning of the satisfaction of old ones, would be “mere solicitation,” and only acts harmful •to the employer’s interests would be a part of his business for jurisdictional purposes. The criterion is obviously untenable. In view of Lovewell’s activities beyond the stage of solicitation proper, their nature and connection with defendant’s business, their repeated approval and acceptance by the company and the benefits it _ derived from them, there was “solicitation plus” in this case. The service of process therefore was valid. I concur in the additional reasons stated by Judge EDGERTON for reaching this result. The judgment is reversed and the cause is remanded to the District Court for further proceedings. Reversed and remanded. “1. The defendant, the Louisville Cement Company, is a corporation incorporated under the laws of the State of Kentucky. having its principal place of business at Louisville, Kentucky. It has no office or place of business in the District of Columbia. “2. C. E. Lovewell, the person upon whom process was served in this case, is a resident of Chevy Chase, Maryland, and is employed by the Louisville Cement Company on a salary as its representative in Maryland, Virginia and the District of Columbia, for the purpose of soliciting orders for its products; his sole employment is with the defendant and he spends about two-thirds of his time in Washington. “3. C. E. Lovewell solicited orders in the District of Columbia only from building supply dealers. When such orders were obtained by him they were transmitted by him to the Company in Louisville, Kentucky and there accepted or rejected by the Company. The orders that were accepted were shipped in interstate commerce by the Company from Louisville to the building supply dealers. After transmitting the order to the Company in Louisville, Lovewell’s authority from the Company over such orders and his duties to the Company in respect to such orders ceased. On occasions Lovewell visited jobs in the course of construction where products of the defendant Company were being used. On these occasions, he would note the manner in which the products were being installed or used and if any difficulties were being experienced, he would make •suggestions as to how to overcome them; he would also go over any complaints with regard to the materials. When a complaint was made Lovewell had no authority to adjust it; he would simply report the complaint to the defendant. This work of Lovewell in visiting jobs, making suggestions and forwarding complaints was not required in any instance by the contract of sale or the Lovewell contract of employment, but was done voluntarily by him, in accordance with an understanding he had with the defendant Company, to bring about good will and create a favorable attitude, and thus promote his work of soliciting business. “4. The material known as Brixment which was used by plaintiffs in the construction of their home was obtained by one of the plaintiffs from the Hudson Supply and Equipment Company of Washington, D. C., and was billed by the Hudson Supply and Equipment Company of Washington, D. C., to Cora L. Frene, one of the plaintiffs, and the order was not placed with Lovewell by the plaintiffs. However, Lovewell had worked on plaintiff to get him to use Brixment in the construction of his house; and previously had invited plaintiffs’ business partner and wife to a theatre and dinner in an effort to promote the use of Brixment in the Government Printing Office warehouse job. While the said Government Printing Office job was being prosecuted Lovewell had invited plaintiff to luficheons where the use of Brixment was discussed. “From time to time, at the instruction of the defendant Company, Lovewell would attend the Bureau of Standards to observe the making of tests of materials of the Company. He also would go to other Government Departments to deliver samples of Brixment for possible use at various points in the United States; would obtain information as to invitations for bids.” “The Court concludes as a matter of law that the defendant was not engaged in doing or transacting business in the District of Columbia; that the process served upon C. E. Lovewell was not effectual to bring the defendant before the Court under Section 1537 of the Code of Laws of the District of Columbia (Title 24, Section 373).” Defendant relies chiefly on Green v. Chicago, B. & Q. R. Co., 1907, 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916; Philadelphia & R. R. Co. v. McKibbin, 1917, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710; Peoples Tobacco Co. v. American Tobacco Co., 1918, 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587; Cancelmo v. Seaboard Air Line Ry., 1926, 56 App.D.C. 225, 12 F.2d 166; Whitaker v. MacFadden Publications, 1939, 70 App.D.C. 165, 105 F.2d 44; Peebles v. Chrysler Corp., D.C.W.D. Mo.1932, 57 F.2d 867. See Scott, Jurisdiction over Nonresidents Doing Business within a State (1919) 32 Harv.L.Rev. 871; Isaacs, An Analysis of Doing Business (1925) 25 Col.L.Rev. 1018, 1032; 18 Fletcher, Cyc. Corp. (Perm.ed.1933) § 8718; Notes (1936) 101 A.L.R. 126, (1929) 60 A.L.R. 994. For the most recent case of this court, see Whitaker v. MacFadden Publications, 1939, 70 App.D.C. 165, 105 F.2d 44, noted in (1940) 28 Calif.L.Rev. 227, discussed but not followed in Clements v. MacFadden Publications, D.C., E.D.Tex.1939, 28 F.Supp. 274, 276. In the Whitaker case there was no “solicitation” of business by the agent in the usual sense, but only the stimulation of the sales of an independent jobber. See Kriger v. MacFadden Publications, D.C., D.Md.1941, 38 F.Supp. 472; Cannon v. Time, Inc., 4 Cir., 1940, 115 F.2d 423. E. g., Peoples Tobacco Co. v. American Tobacco Co., 1918, 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, Ann.Cas.1918C, 537; Mas v. Owens-Illinois Glass Co., D.C., E.D.Va.1940, 34 F.Supp. 415, 419. For cases holding that a continuous and systematic course of business through solicitation is sufficient, see, e. g., American Asphalt Roof Corp. v. Shankland, 1928, 205 Iowa 862, 219 N.W. 28, 60 A.L.R. 986; International Shoe Co. v. Lovejoy, 1934, 219 Iowa 204, 257 N.W. 576, 101 A.L.R. 122; cf. International Harvester Co. of America v. Commonwealth of Kentucky, 1914, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479; Tauza v. Susquehanna Coal Co., 1917, 220 N.Y. 259, 115 N.E. 915; Halpin v. North American Refractories Co., 1934, 151 Misc. 764, 272 N.Y.S. 393. But see Carroll Electric Co. v. Freed-Eisemann Radio Corp., 1931, 60 App.D.C. 228, 50 F.2d 993; International Harvester Co. v. Commonwealth of Kentucky, 1914, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479. International Harvester Co. v. Kentucky, 1914, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479. Hoffman v. Washington-Virginia Ry. Co., 1916, 44 App.D.C. 418; International Harvester Co. v. Commonwealth of Kentucky, 1914, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479; Board of Trade of City of Chicago v. Hammond Elevator Co., 1905, 198 U.S. 424, 25 S.Ct. 740, 49 L.Ed. 1111; International Shoe Co. v. Lovejoy, 1934, 219 Iowa 204, 257 N.W. 576, 101 A.L.R. 122. Seo note 18 infra. Ibid. E. g., Toledo Computing Scale Co. v. Miller, 1912, 38 App.D.C. 237; Carroll Electric Co. v. Freed-Eisemann Radio Corp., 1931, 60 App.D.C. 228, 50 F.2d 993; International Harvester Co. v. Commonwealth of Kentucky, 1914, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479. Hoffman v. Washington-Virginia Ry. Co., 1916, 44 App.D.C. 418, 424; 18 Fletcher, Cyc.Corp. (Perm.Ed.1933) § 8715. See, e. g., Jones v. Pebler, 1939, 371 Ill. 309, 20 N.E.2d 592, 125 A.L.R. 451; Bischoff v. Schnepp, 1930, 139 Misc. 293, 249 N.Y.S. 49; Alexander v. Bush, 1939, 199 Ark. 562, 134 S.W.2d 519; cf. Wood v. Wm. B. Reilly & Co., D.C.N.D.Ga. 1941, 40 F.Supp. 507, (1942) 30 Geo. L.J. 311; Brown v. Cleveland Tractor Co., 1933, 265 Mich. 475, 251 N.W. 557, (1934) 34 Col.L.Rev. 950; Note (1942) 30 Geo. L.J. 768, 770. Hess v. Pawloski, 1927, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091; Culp, Process in Actions Against Non-Resident Motorists (1934) 32 Mich.L.Rev. 325; Notes (1942) 138 A.L.R. 1464, (1940) 125 A.L.R. 457, (1935) 96 A.L.R. 594, (1933) 82 A.L.R. 768. Cf. Milliken v. Meyer, 1940, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357, (1941) 41 Col.L.Rev. 724; Howard Converters, Inc., v. French Art Mills, Inc., 1937, 273 N.Y. 238, 7 N.E.2d 115, (1938) 38 Col.L.Rev. 340; Note (1936) 20 Minn.L.Rev. 649; Culp, Constitutional Problems Arising from Service of Process on Foreign Corporations (1935) 19 Minn.L.Rev. 375. As in the nonresident motorists’ statutes referred to above, the so-called “common-name” statutes, illustrated by the Colorado Act involved in East Denver Municipal Irrigation District v. Doherty, D.C.S.D.N.Y.1923, 293 F. 804; and various other types of statute for acquiring jurisdiction over partnerships or unincorporated associations and their members. The statutes are collected and discussed in Warren, Corporate Advantages Without Incorporation (1929) 141, 523. See also Sturges, Unincorporated Associations as Parties to Actions (1924) 33 Yale L.J. 382. See also Note (1940) 2 Wash. & Lee L. Rev. 75; Culp, Process in Actions Against Non-Residents Doing Business Within a State (1934) 32 Mich.L.Rev. 909. See, e. g., N. Y. Civil Practice Act § 235, Howard Converters, Inc., v. French Art Mills, Inc., 1937, 273 N.Y. 238, 7 N.E.2d 115, (1938) 38 Col.L.Rev. 340; N. Y. Civil Practice Act § 229b, (1940) 53 Harv.L.Rev. 1061, (1940) 40 Col.L.Rev. 1105. E. g., Davidson v. Henry L. Doherty & Co., 1932, 214 Iowa 739, 241 N.W. 700, 91 A.L.R. 1308; Henry L. Doherty & Co. v. Goodman, 1935, 294 U.S. 623, 55 S.Ct. 553, 79 L Fd. 1097; Note (1940) 2 Wash. & Lee L.Rev. 75, 81, (1933) 18 Iowa L. Rev. 257. Toledo Computing Scales Co. v. Miller, 1912, 38 App.D.C. 237; Tauza v. Susquehanna Coal Co., 1917, 220 N.Y. 259, 115 N.E. 915; Halpin v. North American Refractories Co., 1934, 151 Misc. 764, 272 N.Y.S. 393; 18 Fletcher, Cyc. Corp. (Perm.Ed.1938) § 8717. But see Cancelmo v. Seaboard Air Line Ry., 1926, 56 App.D.C 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_state	21	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". SAVON GAS STATIONS NUMBER SIX, INC., and A. & H. Transportation, Inc., Appellants, v. SHELL OIL COMPANY, Appellee. No. 8626. United States Court of Appeals Fourth Circuit. Argued May 29, 1962. Decided Sept. 24, 1962. Lawrence I. Weisman, and David M. Blum, Baltimore, Md. (Nyburg, Goldman & Walter, Baltimore, Md., on the brief), for appellants. William Simon, Washington, D. C. (John Bodner, Jr., Washington, D. C., S. R. Vandivort, San Francisco, Cal., and Howrey, Simon, Baker & Murchison, Washington, D. C., on the brief), for ap-pellee. Before SOPER, HAYNSWORTH and BRYAN, Circuit Judges. SOPER, Circuit Judge. This suit was brought by two affiliated Maryland corporations, Savon Gas Stations No. 6, Inc., and A. and H. Transportation, Inc., which are engaged in the business of buying and transporting refined petroleum products and selling them at retail at filling stations in the Baltimore area. The defendant is the Shell Oil Company, a Delaware corporation, which is engaged in the production and marketing of petroleum products on an international scale, and also in the retail sale of such products in filling stations in Baltimore. The gist of the complaint is that Shell on October 13, 1954, in the course of its business entered into an illegal contract in unreasonable restraint of trade with the owners of Middlesex Shopping Center, one of the larger retail shopping centers in the Baltimore area. The Shopping Center is situated on a triangular tract of land in Baltimore bounded by Eastern Boulevard, Essex Avenue and Marlyn Avenue. Under the agreement Middlesex erected a filling station for Shell on property owned by it fronting on the Boulevard, adjacent to the Shopping Center, and leased it to Shell under a covenant that during the term of the lease Middlesex would not use or permit the use of its other property in the triangular area for the purpose of a gas station which would compete with the business being conducted by Shell on the leased premises. It is charged that the plaintiffs were injured through the enforcement of this covenant two years later when, on August 31, 1956, they opened a filling station on property owned by them fronting on the Boulevard adjacent to the Shopping Center on the side opposite to the Shell Station, and engaged in the sale of gasoline at prices lower than those charged by Shell. The Savon Station was so constructed as to receive traffic from the Boulevard and also to permit the flow of traffic between the rear of the station and the parking area of the Shopping Center without using the street; and the owners of the respective properties entered into an agreement to avail themselves of this situation. Under this agreement the customers of the Shopping Center could cross the station to gain access to the street and the customers of the station could have direct access to the parking area of the Shopping Center. This arrangement increased the sales at the Savon Station but it was terminated when Shell invoked the restrictive covenant in its earlier agreement of lease and induced Middlesex to abandon its agreement with Savon and to erect barriers between the Savon Station and the Shopping Center so as to prevent the free passage of vehicles between the two areas. Savon claims that by reason of this action its sales dropped off substantially and caused the losses, for which it seeks damages in this suit. The specific charge of illegality is made in the first count of the complaint that the lease agreement between Middlesex and Shell constituted an unreasonable restraint of trade in violation of §§ 1 and 2 of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1 and 2. Section 1 provides in effect that every contract or conspiracy in restraint of trade or commerce among the several states or with foreign nations is illegal. Section 2 provides that every person who shall monopolize or conspire with any other person to monopolize any part of such trade or commerce shall be guilty of a misdemeanor and be punished by a fine not exceeding $50,000, or imprisonment not exceeding one year, or both. The second count of the complaint charges that the wrongful and unlawful acts of the defendant, Shell, constitute not only a violation of the anti-trust laws but also an interference with the contractual rights of the plaintiff in violation of the common law of the state of Maryland. The case was submitted to the District Judge on motion of the defendant for summary judgment or dismissal upon the allegations contained in the complaint and in certain depositions and affidavits of the parties. Finding the facts to be undisputed, he entered judgment for the defendant and dismissed the complaint. He was of the opinion that the restraint of trade involved in enforcement of the covenant in the lease did not occur in interstate commerce and had no substantial effect upon such commerce as asserted in the first paragraph of the complaint; and he also held that the restrictive covenant in the lease was not in violation of the common law of Maryland as alleged in the second count of the complaint. The undisputed facts bearing upon the business activities of the parties which are set forth in the allegations of the complaint or in the depositions and affidavits considered by the court, are shown in the following recital. Shell is engaged in interstate commerce on a national and international scale, producing, refining and marketing petroleum products. In the instant case it secured from Middlesex a lease on the gas station adjacent to the Shopping Center under which all other dealers in petroleum products were excluded from other property in the area owned by Middlesex. It pursues this policy elsewhere. Savon Gas Stations No. 6, Inc., and A. and H. Transportation, Inc., the plaintiff corporations, may be considered as a single unit for our purposes since they are under a common ownership and have the same president. They are engaged in the business of buying and selling petroleum products. The goods are bought for the most part from the Arrow Oil Company, an affiliated corporation with the same president, which buys the goods in Maryland from producers or dealers who in turn import the goods from outside the state. Some of the goods are bought directly from out-of-the-state producers. The plaintiffs own and operate 8 service stations, 6 in Baltimore and 2 in the counties of Maryland. These stations make annual sales of 6,-000,000 gallons amounting to $1,500,000. The Savon Station, which the plaintiffs operate adjacent to the Shopping Center has annual sales of 300,000 gallons amounting to $75,000 per year, a monthly average of 25,000 gallons at $6,250. At the commencement of business, the station’s sales averaged 29,000-30,000 gallons per month, but after the barrier was erected and direct access to the parking area of the Shopping Center was denied sales dropped to 15,000-20,000 gallons per month. In each of the five years preceding the trial of the case the station lost approximately $20,000. All of the other stations with the exception of 2 are operated at a profit. In Maryland there are in all from 2500 to 2700 service stations selling between seventy and ninety million gallons of gasoline per month. The plaintiffs’ depositions show that the competitive area for the sale of petroleum products in the neighborhood of the Shopping Center is included in a radius of three blocks from the Center. Within this area there are at least ten service stations in which virtually all of the well-known gasoline brands, including Esso, Socony, Mobil, Tidewater, Texaco, Sun, Crown, 'Atlantic, Sinclair, as well as Shell and Savon, are sold. The plaintiffs’ case is pitched upon the theory that both the Federal AntiTrust Statutes and the common law of Maryland are violated when the owner of a modern shopping center enters into a restrictive agreement with a lessee giving him the exclusive right to sell his wares in the area. It is well known that the success of a shopping center depends upon the gathering together in one area of a variety of enterprises which are able to serve the needs of the general public and that this end can often be best accomplished by offering to the individual merchant the exclusive right to sell in the center the kind of merchandise he handles. It is said, however, that such an arrangement is illegal and that the owner must be free to let any competitor in so that he can do business with the members of the public who are attracted to the area by the establishment of the center through the joint efforts of the owner and the merchants. The argument does not go so far as to maintain that the owner of the property may not of his own volition select the merchants he desires to associate with and exclude those he deems undesirable to the group. Such an argument would be clearly untenable since the right to select one’s business associates is not denied by law. United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992; United States v. Parke, Davis & Co., 362 U.S. 29, 43, 80 S.Ct. 503, 511, 4 L.Ed.2d 505. Nevertheless, it is said that if substantially the same arrangement is made by a restrictive agreement between the owner and the merchant there arises a conspiracy to impose an unreasonable restraint of trade in violation of the Sherman Anti-Trust Act and a restraint of trade condemned by the ancient theory of the common law, which influenced the framers of the Anti-Trust Acts. We agree with the conclusion of the District Judge that the restrictive covenant did not involve the violation of the Federal Statute. It has been established from the beginning that the condemnation of the Sherman Anti-Trust Act is directed only at such agreements or conspiracies as impose unreasonable or undue restraint upon interstate commerce. Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619; United States v. Trenton Potteries, 273 U.S. 392, 395-396, 47 S.Ct. 377, 378-379, 71 L.Ed. 700; Klor’s v. Broadway-Hale Stores, 359 U.S. 207, 211, 79 S.Ct. 705, 708-709, 3 L.Ed.2d 741. In the instant case the restraint cannot be so characterized. The contrast between it and the agreements found to be illegal in .the decisions upon which the plaintiffs rest their case demonstrates this conclusion. Since the sale of petroleum products at retail at service stations, considered as an isolated transaction, is local and intrastate in character, the plaintiffs have called our attention to authorities in which it is held that transactions in themselves local and intrastate may be within the purview of the statute if they spring from agreements whose enforcement reaches beyond the state. See Klor’s v. Broadway-Hale Stores, 359 U.S. 207, 211, 79 S.Ct. 705, 708-709, 3 L.Ed.2d 741; Moore v. Mead’s Fine Bread Co, 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145; Mandeville Island Farms, Inc. v. American Crystal Sugar Co, 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328; Osborne v. Sinclair Refining Co, 4 Cir, 286 F.2d 832; American Federation of Tobacco Growers v. Neal, 4 Cir, 183 F.2d 869. In each of these cases, however, the agreements were obviously designed so to restrict and injure a merchant’s business as to be easily recognized as unreasonable and oppressive. In Klor’s a combination was entered into between the owner of a chain of department stores and ten manufacturers and distributors of household appliances in interstate commerce in order to deprive the owner of a local household appliance store of the goods he needed in his business by refusing to sell to him; and it was held that this arrangement amounted to a group boycott in violation of §§ 1 and 2 of the Sherman Act, although the needs of the public could be supplied by other retail stores in the plaintiff’s neighborhood. In Moore v. Mead it was held that § 2 of the Clayton Act and § 3 of the Robinson-Patman Act were violated by a combination of manufacturers of bread, engaged in interstate commerce, who conspired to cut prices in one city, where the plaintiff had an intrastate bakery business, but maintained their prices elsewhere in interstate transactions. In Mandeville it was held that the Sherman Anti-Trust Act was violated by a combination of corporations, who were beet sugar refiners and distributors in interstate commerce, who undertook to fix prices to be paid to intrastate growers of sugar beets. In American Federation of Tobacco Growers we held that the statute was violated by a combination of tobacco warehousemen whereby a tobacco farmers’ cooperative was excluded from the privilege of making sales on the local tobacco market. In Osborne we held that the Sherman Act was violated when a producer of petroleum products entered into a tie-in arrangement with operators of local service stations whereby they were enabled to purchase petroleum products of the defendant only on condition that they buy accessories from a certain manufacturer. It is quite obvious that no such meretricious agreement or arrangement was effected by the restrictive covenant in the lease in the pending case. There was no combination to fix prices; no effort to deprive the plaintiff of the necessary supplies for the operation of his business, no interference with his sales of goods to the public, no direét interference with his business in any fashion, and no restraint upon the competitive sale of gas-soline in the neighborhood. The single restriction was to deny him direct access from the rear of his property to the parking area of the Shopping Center or, in other words, the right to use the property of the Shopping Center as part of his place of business. The customers of the Shopping Center had free access to the defendant’s place of business by using-the public street in common with all other members of the traveling public. We do not think that the restriction imposed upon the defendant by the exercise of the right of the Shopping Center to choose the persons who were allowed to do business on its property amounted to an unreasonable restraint of trade within the purview of the Federal Statutes. We agree also with the District Judge that the restrictive covenant did not violate the common law for the reasons set forth in his opinion. Savon Gas Stations No. 6, Inc. v. Shell Oil Co., D.C, 203 F.Supp. 529. Most pertinent is the decision of the Court of Appeals of Maryland in Maryland Trust Co. v. Tulip Realty Co., 220 Md. 399, 153 A.2d 275, where the validity of a restrictive agreement for the use of the parking area of a shopping center was upheld. The owner of the center had conveyed a part of the property by deed in which it covenanted that the grantee should have the right in common with other tenants in the shopping center to use the parking area for the benefit of itself and its patrons for ingress and egress and for parking motor vehicles. Subsequently, the stockholders of the grantor formed a new corporation which acquired a tract of land bordering on the parking area of the center, erected a store thereon and leased it to a new tenant with an agreement in which the owner of the shopping center joined to keep the boundary line between the new store and the parking area unobstructed. Upon suit for relief by the grantee in the first mentioned deed it was held that the covenant in the lease to the tenant of the adjoining property was in conflict with the agreement in the deed whereby the tenants of the shopping center acquired the right to use its parking area as described above; and it was further held that the chancellor was correct in requiring the erection of a fence between the parking area and the new store so that the tenant of the new store could not have the use of the parking area. The decision of the Court of Appeals was in harmony with the Maryland rule set out in the cases cited by the District Judge that partial restraints of trade, reasonably limited in time and space, are not in conflict with the common law. In the Tulip case the Court of Appeals of Maryland expressly applied the rule that restrictive covenants should be strictly construed but, nevertheless, held that the grant to the tenants of the shopping center of the right to use the parking area for the benefit of itself and its patrons should be interpreted as exclusive so as to forbid the use of the parking area by other persons. In the pending case the plaintiff suggests that under the rule of strict construction the restrictive covenant in the deed from Middle-sex to Shell should not be interpreted to require Middlesex to deny to Savon direct access to the parking area from the rear of its' gas station but merely to forbid Middlesex to permit any person other than Shell the use of the property for the purpose of a competing gas station, and it is said that Savon did not propose to make such use of the parking area in this case. There is no substance in the suggestion. Savon sought an easement of access over the parking area so that it became in effect an extension of the area of the service station itself. The reasons which led the Court of Appeals of Maryland to interpret the covenant in the Tulip case as conferring exclusive use upon the grantee, and denying it to other persons, are equally applicable here. Affirmed^ . See Tenant Selection Policies of Regional Shopping Centers, Journal of Marketing, April, 1959; Senate Subcommittee of Committee on Small Business, S6 Congr., First Session, April 28-29, 1959; pp. 2-17, 56-67, 71-84; 34 N.Y.U.L.Rev. 940 (1959); 63 Harv.L.Rev. 1400 (1950). 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_dissent	1	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting. UNITED STATES v. QUIMBY. No. 436. Circuit Court of Appeals, Second Circuit. July 7, 1931. SWAN, Circuit Judge, dissenting. Brodek, Raphael & Eisner, of New York City (Eugene J. Raphael, Louis P. Eisner, Ralph H. Raphael, and Charles A. Brodek, all of New York City, of counsel), for appellant. George Z. Medalie, U. S. Atty., of New York City (William B. Herlands, Asst.-U. S. Atty., of New York City, of counsel), for the United States. Before MANTON, SWAN, and CHASE, Circuit Judges. MANTON, Circuit Judge. The appellant was convicted on eleven counts of an indictment, containing twelve counts, charging use of the mails in furtherance of a scheme to defraud. The tenth count was dismissed at the trial, and his co-defendant Cutler was acquitted on all counts. Clarke Bros., a private banking institution, carried on business for 88 years, but closed its doors June 29, 1929, when bankruptcy followed. The fraudulent scheme charged was that the appellant and one Cutler, together with James R. Clarke, William H. Clarke, and Philip Clarke, unlawfully and fraudulently devised and intended to devise a scheme to defraud certain named depositors and others unnamed, “as depositors and lenders.” The scheme is charged to have existed from April, 1927, to June 29, 1929. Clarke Bros, were private bankers and lawfully held themselves out as such. They accepted deposits of moneys offering interest at 5% per cent, on special accounts, and 3 per cent, on ordinary accounts. The appellant and his codefendant are charged with taking sums of money placed on deposit, as loans without sufficient security. The theory of the indictment is that such lending of money was part of the scheme to defraud and was made with the knowledge of Clarke Bros., and used not only to enrich the appellant, but also one of the Clarkes. In this way it is said that. money was fraudulently obtained from depositors. Appellant was not an officer of the bank nor in its employ. It is further claimed that accounts were solicited and deposits obtained so that money might be borrowed by the appellant, and that representations were made that Clarke Bros, were conducting a sound conservative business, under the supervision of the New York state banking department, and that Clarke Bros, were solvent. It is claimed that the representations were false and untrue; that Clarke Bros, were not doing a legitimate business, and were not financially sound, nor was it a staple and reliable banking house, and that it did not conduct its business in accordance with the principles of sound banking and disregarded the banking laws of the state of New York. Private banks of this kind are not under the supervision of the hanking department under the law of New York. The first count, after charging the alleged scheme to defraud, says that Clarke Bros. placed in the post office on June 29, 1929, a printed circular and calendar addressed to one McGovern, soliciting deposits from the addressee; count 2, a letter of May 29, 1928; count 3, on June 25, 1928; count 4, September 28, 1928; count 5, January 13', 1927; count 6, June 30, 1927; count 7, May 29, 1928; count 8, November 26, 1928; count 9, March 16, 1929'; count 11, December 31, 1928; count 12, June 28, 1929. These letters inclosed a blotter or calendar used for advertising purposes and suggested the service of Clarke Bros, as bankers, or offered their services to persons wishing to travel by way of selling travelers’ checks. There was no direct proof of an agreement or scheme to defraud; the jury were asked to infer it from the circumstances. Appellant was shown to have been a depositor and a borrower of money from the bank. He frequented the bank often in the years preceding its failure, as often as once or twice a week. He was seen sometimes lunching with members of the firm. The loans made to the appellant were at various times during the two years preceding the failure, and on the closing of the bank amounted to $185,000. He gave his note each time to •James R. Clarke. The notes were not entered on the books of the bank until September 18, 1928, when James R. Clarke instructed the note teller to make entries in the discount ledger under appellant’s name. As collateral for these notes, appellant gave a claim for commissions against the New York Edison Company for $750,000, and from that time on moneys were loaned against the security. Of the $185,000, $55,000 was represented by notes made by the appellant to James R. Clarke, which he gave Clarke for his personal accommodation so he could discount them at some other bank. About $40,000 of this sum was used by Clarke to build a home for his daughter. Appellant was never asked to pay this $55,000, and he assumed Clarke would take care of these obligations. The validity of the claim given as collateral security was severely questioned at the trial. Three eminent members of the bar testified to its legality, and it might well have been reasonable for Clarke Bros, to accept it as collateral. From time to time subsequent to the assignment to the bank appellant made several assignments of interest therein to others, amounting in all to about one-third of the amount of the claim. The appellee was permitted to prove some judgments recovered against the appellant by third parties. Years before tbe failure of tbe bank, James R. Clarke advanced $150,000 to the P.ort Terminal Corporation, a corporation which appellant had promoted, and held its note for that amount. This company had an enterprise in New Jersey, but it was a failure. It was shown to have been carried on the books of the bank at $840,000. Appellant disclaimed any knowledge of the book entries of the bank. The appellant was interrogated in a preliminary examination before a commissioner, and he was asked by the United States attorney to explain why Clarke Bros, carried this loan at $840,000, to which he replied that he knew nothing of the book entries and knew no reason therefor. But in this fraud charge it is argued that this amounted to proof of some improper entry made in the Clarke Bros, books and therefore was fraudulent. An interest in a McCarter Syndicate was carried on the books of the bank at $700,000, and the appellant was interrogated before the commissioner as to whether he knew that fact. He disclaimed knowledge thereof. No proof was offered at the trial below to show such an entry was made on the books of the bank or that appellant knew thereof. But the argument proceeded that this was another transaction to defraud the creditors. Indeed, no proof was offered that the books of the bank carried either of these items, and. the United States attorney argued as if they had been proven. The deposition before the commissioner was received in evidence. It is further said that there “Was a scheme to defraud lenders of money. In June, 1929, Clarke Bros, were endeavoring to obtain a loan from two banks in the city of New York, and offered as collateral very questionable security. The appellant made affidavits making false statements as to this proposed collateral. One was an alleged interest in some oil property rights at Magdalena Bay, Southern California, given as collateral for appellant’s demand note of $500,000. The property was said to be worth $25,000,000, and was controlled by one Heney, and such statement was made in an affidavit by Heney. James R. Clarke used this in an effort to obtain a loan of $500,000. Appellant said that he had obtained for Heney a contract for the oil rights in this property to the Merrill-Sinclair Syndicate, and that Heney had already been paid $500,000, and that a balance of $4,500,000 was to be paid in August, 1929, and that appellant would be entitled to a commission of $500,000 at that time. This was established to be false. In the McCar-ter Syndicate referred to, appellant made an affidavit, June 14, 1929, representing that he had performed services there which entitled him to $6,850,000 in cash, and stated that he had assigned one-half of this sum to James R. Clarke. It was established that he had no interest. His affidavit, relating to the so-called Merrill-Sinelair Syndicate, involved oil-producing lands in Venezuela and other South American countries, and said that in the distribution of the profits, which would take place in sixty days, there would be paid $17,000,000 for services rendered. This was false. The so-called Merrill-Sinelair Syndicate did not exist. He made still another affidavit as to a claim against the republic of Georgia in which it was stated that he would receive $25,000,000 for services rendered there. These affidavits were used by Clarke Bros, in an endeavor to borrow money from the banks. No money was loaned by either or any bank. For making such false affidavits, there is ample criminal punishment. Appellant never mailed or caused to be-mailed any of the calendars or circulars, the-subjects of the counts on which he has been, convicted. Clarke Bros, mailed them as part of their business in accordance with a custom in use for years. They made- known to the appellant the financial embarrassment of the bank, and asked for this, his alleged collateral, as security for a prospective loan they wanted to negotiate. But the letters which were mailed did not bear on these loans; they inclosed either a blotter or monthly calendar. They were letters notifying depositors that interest had been credited ; a letter urging the purchase of traveler’s cheeks for use on foreign journeys; a letter recommending the rental of safe deposit vaults; a letter recommending an investment; letters calling attention to the maturity date of Liberty bonds of the third series; a letter inquiring about the responsibility of a new depositor who had given the addressee’s name as reference; and a letter suggesting that, if the depositor was pleased with Clarke Bros.’ service, he recommend the bank to others. From all that appears, such letters, as an advertising plan, might have and had been customarily used over a long period of the 88 years of the bank’s existence. The case was submitted to the jury on the theory that there was a scheme to defraud both depositors and lenders of the bank — one enterprise. There was no use of the mails. made in any endeavor to defraud institutions into loaning money to- the bank. The use of the affidavits was of no effect, and the claimed use of the mail to defraud lenders may be eliminated. The mail was used in respect to depositors only. The letters, blotters, and calendars which were sent through the mail were not unusual, nor did they make known any scheme or plan which was fraudulent. There was no scheme of the appellant with the Clarkes to defraud depositors and lenders wherein the mail was used in its furtherance. No effort was made to borrow money from any financial institutions until June, 1929, which was long after the use of the mails as set forth' in the counts of the indictment, except the calendar which was marked and mailed and is the subject of the twelfth count. The use of the mails, in execution of the fraudulent scheme, is the gist of the offense for which the appellant was indicted. Olsen v. U. S. (C. C. A.) 287 F. 85. The government has proved that appellant was a borrower when the bank failed in June, 1929, and the bank had his notes for $185,009, which were payable to the order of James E. Clarke and indorsed by him, that $130,000 of these notes represented loans made by James E. Clarke, and that the balance were accommodation notes by the appellant to Clarke, and that there was collateral for these notes; there had been pledged a claim of $750,000. The circumstances of the borrowing of these moneys and the acceptance of the securities may give rise to a charge of crime under the state law, but we cannot find from the proof that there was any evidence of a fraudulent use of the mails with which the appellant is in any way connected. The letters were sent to depositors or prospective depositors of the bank in furtherance of the Clarke Bros, business. One of the objects of the firm’s business was to secure depositors, and advertising, sueh as sending blotters and calendars with a request to purchase travelers’ checks, cannot be said to be a fraudulent scheme. The firm, while in existence, might endeavor to secure depositors. This record shows appellant to have been a customer of the bank, good or bad, but it does not establish directly or circumstantially his use of the mails in a scheme to defraud. Salinger v. U. S. (C. C. A.) 23 F.(2d) 48. There was no evidence to indicate that the appellant had reason to believe that his borrowing on notes which he gave to Clarke and which Clarke indorsed and discounted at the bank would cause any loss to depositors. Clarke Bros, was a partnership, and partners could not have been engaged individually in defrauding themselves; of course they could defraud depositors, but it has not been established that they had a plan or scheme to defraud their depositors. The lessening of the financial ability to meet the claims of its depositors may have been very wrong, but there is no fraudulent use of the mails in furtherance of a scheme to defraud. If there was- unlawful use made of the funds of the bank by the Clarke Bros., that was a subject of some other crime, possible of prosecution in the state courts. Indeed, the record does not disclose the financial position of the bank on the day it was closed, and, on the proof here, the court should have directed a verdict of acquittal of the charged crime. Judgment reversed. SWAN, Circuit Judge, dissenting. Question: What is the number of judges who dissented from the majority? 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 Brian VUKADINOVICH, Appellant, v. Richard ZENTZ, Ronald Kurmis, John Ross, William Collins, and City of Valparaiso, Appellees. No. 92-2957. United States Court of Appeals, Seventh Circuit. Submitted April 2, 1993. Decided June 9, 1993. Brian Vukadinovieh, Wheatfield, IN (submitted for appellant pro se). William W. Kurnik (submitted), Kurnik, Cipolla, Stephenson & Barasha, Arlington Heights, IL, for defendants-appellees. Before POSNER and EASTERBROOK, Circuit Judges, and TIMBERS, Senior Circuit Judge. The Honorable William H. Timbers, Senior Circuit Judge, United States Court of Appeals for the Second Circuit, sitting by designation. TIMBERS, Senior Circuit Judge. Appellant Brian Vukadinovieh appeals from a judgment entered on a jury verdict in the Northern District of Indiana, James T. Moody, District Judge, finding in favor of appellees, City of Valparaiso, and several of its police officers, in a civil rights action commenced by Vukadinovieh pursuant to 42 U.S.C. § 1983 (1988). On appeal, Vukadinovieh asserts that numerous errors committed by the court during his trial warrant a reversal of the judgment and a new trial. For the reasons that follow, we reject Vu-kadinovich’s claims and we affirm the judgment in all respects. I. We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. This appeal arises from a lengthy history of disputes between Vukadinovieh and the Valparaiso, Indiana, (City) police department. The troubles began in September 1981 when Vukadinovieh was arrested for disorderly conduct by Valparaiso police officers William Collins and Cosmo Hernandez. At his trial, Vukadinovieh was found not guilty. He then commenced an action against the officers in the state court, alleging false arrest and excessive use of force. The case was settled before trial. In March 1983, Collins again arrested Vukadinovieh. After the charges were dismissed, Vukadino-vich commenced another action against Collins, alleging excessive use of force. This case also was settled before trial. On September 26, 1984, Vukadinovieh filed a complaint with Valparaiso Police Chief Richard Buchanan, claiming that he was being harassed by Valparaiso police officers. Buchanan assigned an officer to investigate the allegations. When the officer concluded that the claim was unfounded, the complaint was dismissed. On October 15,1986, Officer Richard Zentz pulled Vukadinovieh over for driving without his headlights on after dusk. A standard computer check of Vukadinovieh’s date of birth and social security number revealed that his driver’s license had been suspended because of his numerous traffic violations. Zentz arrested Vukadinovieh for driving with a suspended license and took him into custody. Vukadinovieh recorded on tape the conversation that occurred during this arrest. The charge against Vukadinovieh eventually was dismissed. On November 3, 1986, while on patrol, Zentz observed a truck speeding. Although he did not have a radar device, Zentz was able to estimate the truck’s speed based on his pursuit of it. Zentz pulled the truck over. He approached the truck to issue a citation and recognized Vukadinovieh as the driver. Vukadinovieh remarked that he was not going to stick around, restarted the truck, and pulled away. Zentz returned to his patrol car and summoned assistance. Officers Ronald Kurmis and John Ross answered the call. They followed Vukadinovieh to his residence where, despite his forceful resistance, they handcuffed him and put him in a patrol car. Vukadinovieh was taken to the police station where he was charged with speeding, fleeing, resisting arrest, and battery. The arrest report was reviewed and signed by Officer Collins. When Vukadinovieh arrived at the police station on this occasion, he began complaining of pains and was taken to a hospital. Upon returning from the hospital, Vukadino-vich claimed that Officer Zentz had gone through his personal belongings and had stolen $500 from his wallet. An employee responsible for inventorying and safekeeping prisoners’ property testified, however, that there was no money in Vukadinovich’s wallet when he arrived at the police station. The charges arising from this arrest eventually were dismissed. To review and investigate citizen complaints against its police officers, the City has an internal review board comprised of officers. The City also has a Board of Works to handle disciplinary actions brought' against its officers. Harassment complaints, however, are not reviewed immediately by any board. Instead, they are investigated by an officer who determines whether there is sufficient cause to investigate further. On October 6, 1988, Vukadinovieh commenced the instant § 1983 action against officers Zentz, Kurmis, Ross, Collins, Hernandez, and Wheatfield, Indiana police officer Paul Westmoreland. Vukadinovieh also named the City as a defendant. Vukadino-vich alleged that the officers conspired to deprive him of his constitutional rights, in retaliation for his two actions against Officer Collins. Vukadinovieh further alleged that his civil rights were violated during his arrests on October 15 and November 3 and by Officer Zentz’s alleged theft of $500 from his wallet while he was in custody following the November 3 arrest. Vukadinovieh maintained that the City was aware of its officers’ campaign of harassment, yet did nothing to prevent it. On December 8, 1989, the court entered summary judgment in favor of officers Hernandez and Westmoreland on the ground that there was insufficient evidence to establish that either violated or entered into a conspiracy to violate Vukadinovich’s constitutional rights. A jury trial began on March 11, 1991 at which Vukadinovieh proceeded pro se. At the close of Vukadinovich’s case, appellees moved for a directed verdict. The court denied this motion. Appellees renewed their motion for ‘ a directed verdict at the close of all the evidence. The court granted this motion in part, finding that (1) there was probable cause to arrest Vukadinovieh on November 3, 1986; (2) there was insufficient evidence to establish that Zentz took or had access to the $500 alleged to have been stolen; (3) there was no evidence establishing a custom or practice by the City of tolerating deprivations of Vukadinovich’s rights; and (4) the evidence was insufficient to link Officer Collins to the conspiracy. On March 18, 1991, the jury returned a verdict in favor of appellees on the remaining claims. All parties filed post-trial motions. In an order dated June 29, 1992, the court denied all of these motions. On appeal, Vukadinovieh seeks reversal of the judgment entered on the jury’s verdict and a new trial on the ground that the court committed numerous errors during his trial. II. First, Vukadinovieh contends that the court improperly excluded from evidence at trial the audiotape recording of his October 15 arrest. Since a court has broad discretion in deciding whether to admit tape recordings, we will overturn its decision only in extraordinary circumstances. United States v. Jewel, 947 F.2d 224, 228 (7th Cir. 1991). Further, where the recording contains inaudible or unintelligible portions, the decision whether to admit it in evidence is committed to the sound discretion of the trial court. United States v. Zambrano, 841 F.2d 1320, 1337 (7th Cir.1988). Here, Vukadinovich concedes that the tape is partially inaudible. Moreover, he has not convinced us that there were extraordinary circumstances to support its admission. We hold that the court did not abuse its discretion in excluding the tape. While Vukadinovieh correctly states that the parties included the tape recording in the pretrial order and that appellees failed to object to its inclusion as required by Local Rule 21(f)(6), the court’s decision to exclude the tapes at trial nevertheless was proper. Indeed, we are reluctant to “interfere with the trial court’s determination not to hold the appellee[s] to the pretrial order unless there was a clear abuse of discretion or manifest injustice”. Sadowski v. Bombardier, Ltd., 539 F.2d 615, 621 (7th Cir.1976); see also Fed.R.Civ.P. 16(e). While the instant ease is somewhat unique since it involves the exclusion of a document listed in a pretrial order rather than the usual situation involving the introduction of an unlisted document, we perceive no injustice resulting from our reluctance to interfere with the court’s decision to alter the pretrial order. To determine whether the court abused its discretion in departing from its pretrial order, we examine the following factors: (1) prejudice to the opposing party; (2) ability of the opposing party to cure the effects of any prejudice; (3) disruption of the orderly and efficient trial of the case; and (4) bad faith in the party’s failure to adhere to the pretrial order. Smith v. Rowe, 761 F.2d 360, 365 (7th Cir.1985). Here, Vukadinovieh claims that he was prejudiced because appellees’ late objection prevented him from calling linguistic experts to analyze the tape. However, since the court determined that the tape was inaudible, its exclusion did not prejudice Vukadinovieh. United States v. Vega, 860 F.2d 779, 790 (7th Cir.1988) (tape inadmissible where “unintelligible portions are so substantial as to render the recording as a whole untrustworthy”) (citation omitted). Further, to admit both the tape and expert testimony would have disrupted the efficient trial of the ease. Finally, there is no evidence of bad faith on the part of defense counsel in not adhering to the pretrial order. Accordingly, since Vukadinovieh does not satisfy the factors set forth in Smith, supra, and since, even if the tape was improperly excluded, he cannot demonstrate that it was more than harmless error, Fed.R.Evid. 103, we hold that the court did not abuse its discretion in departing from its pretrial order. Second, Vukadinovieh contends that the court erred in allowing appellees to use unsigned depositions at trial, in violation of Fed.R.Civ.P. 30(e). Vukadinovieh, however, fails to recognize that the use of unsigned depositions at trial constitutes harmless error unless he can show that there were particular inaccuracies in the depositions or that he was prejudiced by their use at trial. United States v. Campbell, 845 F.2d 1374, 1379 (6th Cir.), cert. denied, 488 U.S. 908 (1988). Here, Vukadinovieh has failed to show what inaccuracies, if any, appeared in the depositions. He also has failed to show how the use of the depositions prejudiced him. Although it may be said that the court improperly, admitted unsigned depositions, doing so constituted at worst harmless error. Third, Vukadinovieh contends that the court erred in denying his post-trial Fed. R.Civ.P. 60(b) motion to vacate the judgment and impose sanctions on the City for withholding evidence in violation of a court order. In particular, Vukadinovieh asserts that the City did not comply with the court’s order to submit for in camera inspection the officers’ personnel files. Under Rule 60(b), a court is permitted to grant relief only in “exceptional circumstances”. United States v. One 1979 Rolls-Royce, 770 F.2d 713, 716 (7th Cir. 1985). Further, a decision not to grant a Rule 60(b) motion will be reversed only where the court abused its discretion. Simmons v. Gorsuch, 715 F.2d 1248, 1253 (7th Cir.1983). To prevail, Vukadinovieh bears the burden of showing that the City wrongly withheld evidence, id., and that the evidence probably would have produced a different result at trial. Bradley Bank v. Hartford Accident & Indem. Co., 737 F.2d 657, 662 (7th Cir.1984). Here, Vukadinovieh failed to adduce any evidence that the City deliberately or wrongfully withheld evidence. Moreover, Vukadinovieh has not shown that the evidence allegedly withheld would have produced a different result at his trial. Indeed, the information sought by Vukadino-vich pertained to the City’s liability which, since the jury found for the individual officers, is irrelevant. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (damages not available against municipality where jury has concluded that its officers inflicted no constitutional harm); Tom v. Voida, 963 F.2d 962, 962 (7th Cir.1992) (same). We hold that the court did not abuse its discretion in denying Vukadinovich’s Rule 60(b) motion. Fourth, Vukadinovich contends that the court erred in fading to instruct the jury to disregard its previous rulings that dismissal of the charges against Vukadinovich arising from his October and November arrests were irrelevant. This claim clearly lacks merit. Vukadinovich never requested that the court instruct the jury to disregard its prior rulings. In view of Vukadinovich’s failure to object at trial, we need not consider this claim on appeal. Further, even if we were to consider this claim, the court corrected itself by. allowing a stipulation to be entered in evidence stating that the criminal proceedings arising from .both arrests had been dismissed. We hold that the court properly informed the jury that the court’s prior rulings were to be disregarded. Fifth, Vukadinovich contends that the court erred in entering a directed verdict on the ground that Officer Zentz had probable cause to arrest him on November 3, 1986. We disagree. Since Zentz followed Vukadinovich for several seconds in a patrol car with a calibrated speedometer, no reasonable jury could conclude that he “guessed” at Vukadinovieh’s speed. Zentz also was aware that, when he arrested Vukadinovich two weeks earlier, he had been driving with a suspended license. Further, Vukadinovich’s flight from the scene and forceful resistance at his subsequent arrest gave Zentz probable cause to arrest him on November 3. We hold that the court properly concluded that no reasonable juror could find Vukadinovich’s November arrest unconstitutional. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 260 (1986). Sixth, Vukadinovich contends that the court erred in directing a verdict on his due process claim against Officer Zentz for allegedly removing money from his wallet while he was in custody. This claim lacks merit. There is no evidence from which a jury reasonably could conclude that Zentz removed $500 from Vukadinovich’s wallet. The wallet was inventoried and kept in safekeeping by jail employees. These employees testified that there was no money in -Vukadinovich’s wallet when he was brought; to the jail and that no outside parties had access to his wallet. Indeed, the fact that Zentz may have had access to the wallet when he put a ticket in with Vukadinovieh’s personal belongings is merely a “scintilla” of evidence which is insufficient to defeat a motion for directed verdict. Anderson, supra, 477 U.S. at 261 (quoting Improvement Co. .v. Munson, 81 U.S. 442, 448 (1872)). Moreover, even if Zentz had stolen the money, it was the type of random and unauthorized act that does not violate due process since adequate post-judicial remedies were available to Vukadinovich. Hudson v. Palmer, 468 U.S. 517, 533-34 (1984). Specifically, Vukadinovich could have asserted a state law claim for conversion. Yoder Feed Serv. v. Allied Pullets, Inc., 171 Ind.App. 692, 359 N.E.2d 602 (1977). We hold that the court properly directed a verdict for Zentz on Vukadinovich’s due process claim. Seventh, Vukadinovich contends that the court erred in directing a verdict for the City. He fails to recognize, however, that since the City’s § 1983 liability is derivative, it cannot be held liable where, as here, a jury returns a verdict in favor of its police officers. Tom, supra, 963 F.2d at 962. Further, in view of the mechanisms in place to investigate complaints, Vukadinovich has not shown that the City was delibérately indifferent to the constitutional rights of its citizens. City of Canton v. Hands, 489 U.S. 378, 389 (1989). Vukadinovich also has not demonstrated that the City perfunctorily dismissed meritorious citizen' complaints. Bryant v. Whalen, 759 F.Supp. 410, 412 (N.D.Ill.1991). We hold that the court properly directed a verdict for the City. Eighth, Vukadinovich contends that the court erred in excluding pursuant to Fed. R.Evid. 403 complaints against the officers, newspaper articles, copies of actions against the City, and a copy of a departmental investigation report of Officer Zentz which occurred after the events here involved. A court’s decision to exclude evidence under Rule 403 is “generally accorded great deference because of [the court’s] first-hand exposure to the evidence and [its] familiarity with the course of the trial proceedings”. United States v. Briscoe, 896 F.2d 1476, 1498. (7th Cir.), cert. denied, 498 U.S. 863 (1990). Further, to be admissible, such evidence must pertain to events similar to the events in the instant case. Strauss v. City of Chicago, 760 F.2d 765, 769 (7th Cir.1985). Here, the prior complaints arose from dissimilar events and were filed for a number of different reasons. We hold that the court did not abuse its discretion in excluding this evidence. Ninth, Vukadinovich contends that the court erred in directing a verdict for' appel-lees on his conspiracy claims. This contention also is without merit. To establish a conspiracy, Vukadinovich must have demonstrated an agreement and a deprivation of his constitutional rights. Scherer v. Balkema, 840 F.2d 437, 441-42 (7th Cir.), cert. denied, 486 U.S. 1043 (1988). Here, the jury found that the officers did not violate Vukadi-novich’s constitutional rights. Without such a violation, there can be no conspiratorial liability. We hold that the court properly directed a verdict on the conspiracy claims. Tenth, Vukadinovich contends that the court erred in directing a verdict in favor of Officer Collins. This contention also is without merit. Collins’s role was limited to signing and reviewing the arrest report compiled by Zentz regarding the November arrest. Merely signing the police report absent actual knowledge of what took place is insufficient to establish a connection between Collins and the alleged deprivation of Vuka-dinovich’s constitutional rights. Lee v. Town of Estes Park, 820 F.2d 1112, 1116 & n. 3 (10th Cir.1987). We hold that the court properly directed a verdict in favor of Collins. Eleventh, Vukadinovich contends that the court erred in dismissing his § 1983 and state law malicious prosecution claims. This contention also is without merit. At the jury instructions conference, Vukadinovich informed the court that his malicious prosecution claim was being asserted “per se” and was not based on his actions against Officer Collins. Standing alone, malicious prosecution is not actionable under § 1983. Maho-ney v. Kesery, 976 F.2d 1054, 1060-61 (7th Cir.1992). Here, Vukadinovich’s claim that his action was for malicious prosecution per se indicated that it stood alone. It is not actionable under § 1983. Further, Vukadi-novich’s state law malicious prosecution claim also was dismissed properly since appellees are immune under Indiana law. Ind.Code § 34-4-16.5-3(5) (1983). Finally, Vukadinovich contends that the court erred in failing to give a more elaborate response to a question from the jury seeking clarification about the dates of certain photographs taken of Vukadinovich’s injuries. We disagree. Since the jury was confused by certain facts and not by legal principles, the court did not abuse its discretion in simply referring to its prior instructions in answering the jury’s question. United States v. Aubin, 961 F.2d 980, 983-84. (1st Cir.), cert. denied, 113 S.Ct. 248 (1992). Further, even if the court erred, Vukadino-vich has failed to demonstrate that the court’s response so prejudiced him as to constitute anything more than harmless error. III. To summarize: We hold that the court did not commit any reversible errors during Vukadinovich’s trial. We affirm the judgment in all respects. 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_numresp	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 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. Bettie MURPHY and Lloyd Murphy, Her Husband, and Lloyd Murphy, in His Own Right, Appellants in No. 15184, v. HELENA RUBENSTEIN COMPANY, a Corporation of the State of New York, and H. J. Titus, Inc., a Corporation of the State of New York, Jointly, Severally and/or in the Alternative, Appellants in No. 15185. Nos. 15184, 15185. United States Court of Appeals Third Circuit. Argued Nov. 30, 1965. Decided Dec. 8, 1965. Arthur E. Bailen, Camden, N. J., for appellants in No. 15,184 and for appel-lee in No. 15,185. Sidney P. McCord, Jr., Haddonfield, N. J. (McCord, Farrell, Eynon & Mun-yon, Haddonfield, N. J., on the brief), for appellee in No. 15,184 and for appellants in No. 15,185. Before HASTIE, GANEY and FREEDMAN, Circuit Judges. PER CURIAM: On motion, the district court entered an order vacating a default judgment and at the same time refusing to quash, service. At this intermediate stage of the litigation the plaintiffs have appealed from the vacating of the default judgment and the defendants have taken a cross-appeal from the refusal to quash service. We have recently held that an order vacating a default judgment is not final within the meaning of section 1291 of Title 28, United States Code, and, therefore, cannot support an immediate appeal. Crowe v. Ragnar Benson, Inc., 1962, 307 F.2d 73. Similarly, a refusal to quash service is not an appealable final order. The appeal and the cross-appeal will be dismissed for lack of jurisdiction. Question: What is the total number of respondents in the case? Answer with a number. 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". DAVIS v. WOOLF. No. 5394. Circuit Court of Appeals, Fourth Circuit. July 16, 1945. H. G. Shores, of Keyser, W. Va., for .appellant. R. A. Welch, of Keyser, W. Va., for appellee. Before PARKER, SOPER, and DOBIE, Circuit Judges. SOPER, Circuit Judge. The question is again before us as to whether the claim of William B. Woolf against the bankrupt estate for $15,000 lent ■by him to the corporation on October 15, 1942, more than five months before the petition in bankruptcy was filed, is secured '.by a valid deed of trust on the mill and equipment of the corporation, or is provable only as an ordinary debt. Upon the first appeal, 147 F.2d 629, we followed the rule that if property is transferred to a surety after he has become bound upon his guaranty in order to indemnify him from loss, it is a preferential transfer and may be set aside if the other conditions for a recoverable preference concur; . and that if the principal debtor is a corporation and the surety is a director thereof, such a transfer is invalid, if made while the corporation is insolvent, even if it has taken place more than four months before the petition in bankruptcy is filed. We held that the decision in the case depended upon whether three factors concurred at the time of the execution of the deed, that is: (1) Was the corporation insolvent? (2) Was Woolf a director of the corporation? (3) Was Woolf bound by an agreement to indemnify the surety on a bond of completion with respect to a building which the corporation was under contract to erect? We decided that if these questions could be answered in the affirmative, the deed of trust was ineffective to create a valid lien, and since they could not be answered upon the record before us, the case was remanded for further proceedings. When these were had, the District Judge held: (1) That the corporation was solvent during the entire month of October, 1942; (2) that Woolf was a director of the company at that time only in a technical sense; and (3) that there was no indemnifying agreement between Woolf and the Surety Company with respect to the only building which the corporation then had under construction. We are convinced from a careful examination of the record that the findings on the first two points must be reversed and that certain evidence upon the third point offered by the trustee and rejected by the court should have been received, since, if unexplained, it tended to show the existence of the indemnifying agreement. We proceed to give the reasons for our conclusions. The evidence of the officials of the company on the question of insolvency was conflicting. On the one hand, Frank Snider, president of the company, who with his two brothers directed the building operations in which the corporation was engaged, testified that the company was insolvent in September, 1942, when the Bonding Company sent an investigator to look into its affairs, and that this condition was known to his brothers and to Woolf. He said he was not familiar with the company’s accounts. On the other hand Woolf, who was an experienced business man, and his brother-in-law, Hetzel Pownall, who was vice-president and general office manager of the company, testified that at the time the deed was executed they made an examination of the books, balance sheets and equipment of the corporation, and considered it to be solvent. The secretary-treasurer and bookkeeper of the company testified that the company was apparently solvent at the time. All of this testimony was quite general in character and was not supported by specific figures or valuations except insofar as support was furnished by two balance sheets of September 30, 1942 and October 31, 1942, respectively, which were found in the papers of the company by the trustee and received in evidence as a correct statement of the company’s condition. They constituted the only detailed testimony on the question of solvency, and since they indicated that the excess of assets over liabilities was $20,403.95 on September 30 and $24,270.64 on October 31, they were accepted as conclusive proof of solvency on the crucial date. This finding cannot stand, because it ignores other testimony which demonstrates that the balance sheets gave only a partial and incorrect picture of the actual situation. They failed to take into account a contract obligation of the company to complete a school house; and the evidence shows that this obligation, when reduced to definite figures, was greater in amount than the apparent excess of assets over liabilities shown by the balance sheets. The following recital of facts, which has bearing also on the other issues in the case, will make this statement clear: The corporation was under contract with the State of West Virginia to erect a science building at the Glenville Normal School and ran short of the necessary funds to complete the job in September, 1942. The National Surety Company was surety on the hond of completion. On October 6, 1942, it wrote Woolf that it had received a statement from Pownall that the company needed money to complete the building and could not get it from the banks, and that consequently the Surety Company had sent its representative to investigate the situation, who found that the corporation had received up to September 19, 1942, $29,762.74 in excess of the amount that was due under the contract, and that only $11,700 of the contract funds remained unpaid, while approximately $30,-000 worth of work remained to be done. These figures, when taken in connection with those shown on the balance sheets, indicate insolvency, since the balance sheets listed the retained percentage on the assets side, but failed to list among the liabilities the unfulfilled obligations of the corporation to complete its state contract. Had this been done, the balance sheet of September 30, 1942, would have shown a deficit of $9,596.05 and that of October 31, 1942, a deficit of $5,729.36, assuming that $30,000 of work remained to be done. The letter of the Surety Company also notified Woolf that he was party to an indemnity agreement of December 24, 1938, wherein he and the corporation agreed to protect the surety from all loss which it might sustain as the result of the execution of any bonds applied for by the contractor. A subsequent letter of October 13, 1942, from the Surety Company to Woolf contained the statement that a copy of the indemnity agreement was enclosed. Woolf testified that he received these letters. It was under these circumstances that the loan of $15,000 was made by Woolf and the deed of trust was given to him on October 15, 1942. Thereafter he kept close watch upon the company’s operations, and attended all the directors’ meetings as the proxy of Pownall, who had entered the military service. He not only advanced the sum of $15,000 but also advanced additional sums from time to time amounting in the aggregate to $22,000, all of which monies, according to the undisputed testimony, were used in the completion of the building. In other words, the actual experience of the company demonstrated that in October, 1942, the burden resting upon it to complete the Glenville building, expressed in terms of dollars, amounted to $37,000, a sum $7,000 in excess of the surety company’s estimate. The deficit of the company was therefore not less than $16,596.05 on September 30 and $12,729.36 on October 31, 1942, even if the other figures contained in the balance sheets are accepted as correct. Other undisputed evidence indicates that some of these figures gave too favorable a picture of the company’s financial condition. For example, it is conceded that the retained percentage on the contract, listed as an asset on the balance sheet, was mistakenly placed at a figure $2,000 in excess of its real value. When we also consider that the petition in bankruptcy was filed on April 8, 1943 and that the corporation suffered an adjudication by default thereby admitting insolvency as early as February 13, 1943, we have strong reason to find that a similar insolvent condition existed at the time of the transfer to Woolf on October 15, 1942, because the only change in the circumstances of the company between these dates consisted of the substantial financial aid furnished by Woolf. The evidence bearing upon Woolf’s relationship with the company compels the conclusion that he was a director in fact as well as in name at the time that the deed of trust of October 15, 1942, was executed. He had been associated as a special partner with the company in an earlier building enterprise in Mineral County, which was erected in 1939. He was elected a director on January 18, 1940, and again on January 18, 1941. No election of directors took place in January, 1942, so that he and his colleagues continued in office under the West Virginia statute. W.Va. Code, Michie 1943, §§ 3028, 3087. The meetings of directors were infrequent and the minutes do not disclose that he attended directors’ meetings during this period but he saw his brother-in-law Pownall daily and discussed with him the affairs of the company. He was familiar with all of the circumstances which led up to the execution of the deed of trust and testified that he made a complete examination of the affairs of the company before entering into that transaction. He attended all the directors’ meetings thereafter as the proxy of Pownall and joined in authorizing the subsequent transactions wherein he made additional loans and received additional security. In our view his relationship as director of the company is established beyond doubt. With these two points established, it is obvious that the case turns on the inquiry whether Woolf was party to an indemnity agreement to save the Surety Company from loss on its bond of completion guaranteeing the performance by -ihe bankrupt of its Glenville contract. That Woolf was party to an indemnity agreement to save the Surety Company harmless is not denied. During the proceedings in the District Court he filed an affidavit in which he admitted that he was party to a general indemnity agreement of December 24, 1938, signed by the bankrupt corporation and himself, of which agreement a photostatic copy was presented to the court. His contention was that the agreement related only to the performance of the contract for the erection of the buildings in Mineral County, W. Va., which were completed in 1939 and did not cover the subsequent contract of the bankrupt to erect the building at the Glen-ville Normal School. The District Judge indicated that he accepted this view of the situation but refused to admit the photostatic copy of the agreement in evidence, on the ground that it was not the best evidence. We think that this ruling was in error, since the objection was directed primarily to the relevancy of the agreement and only incidentally to the fact that a photostatic copy rather than the original of the agreement was offered in evidence. Indeed Woolf verified his signature on the photostatic copy. It was under these circumstances that the finding was made in the District Court that Woolf did not enter into an agreement with the Surety Company to indemnify it against any loss it might sustain as surety on the contractor’s bond given in connection with the erection of the Glenville School. The finding was made, although, as the District Judge pointed out in his opinion, the questions of directorship and execution of the indemnity agreement by Woolf became immaterial in view of the finding that the company was solvent on October 15, 1942. The additional questions were nevertheless given consideration. With respect to the indemnity agreement it was pointed out that no attempt had been made to produce the original thereof although it had been suggested to counsel by the court that if an original agreement existed, it should be produced. We think that the attorney for the trustee should have given heed to this admonition and should have taken steps to take the testimony of the officials of the surety company by deposition, if necessary, to establish this important fact. But we do not think that the case should go off on this point, in view of the admission of Woolf that an indemnity agreement was executed, whose provisions, when examined in the copy, indicate liability on Woolf’s part with respect to the Glenville contract. While the agreement is dated December 24, 1938, and doubtless was executed with especial reference to the contract of 1939, its language is sufficiently broad to cover bonds of completion thereafter executed. Under the agreement the corporation and Woolf agreed that they would indemnify the surety against any liability which the surety might sustain or incur in consequence of having executed such bonds as had been and such as might thereafter be applied for by any of the indemnitors. It is conceded that such a bond was applied for by the bankrupt and executed by the surety company with reference to the Glenville School. It may be, as was suggested in argument, that the application to the Surety Company and other papers executed by the bankrupt corporation and Woolf will demonstrate that the indemnity agreement of December 19, 1938, has no bearing on the later transaction; but this conclusion cannot be reached upon the evidence now before us and the case will be remanded for further hearing limited to the point now under discussion, with leave to both sides to present such evidence as they may have bearing upon the point. We reach this conclusion not only by reason of the express language of t'he contract of indemnity of December, 1938, but also because other evidence in the case has some tendency to show that Woolf would have been liable thereunder had the Glenville contract not been completed. It is a relevant circumstance that Woolf made the loan of $15,000 on October 15, 1942, and the subsequent loans of $22,000 after he had been warned by the Surety Company that they held his indemnity agreement, and after they had sent to him the photostatic copy. Moreover, the president of the bankrupt corporation testified that in a conversation Woolf said that he would not have advanced so large a sum of money to assist the corporation in the erection of the Glenville building but would have allowed the bonding company to sue him, if he had known that instead of an advance of $15,000 it would require nearly $40,000 to do the work. The judgment of the District Court will be reversed and the case remanded for further proceedings in accordance with this opinion. Reversed and remanded. As we indicated in our first opinion, unfulfilled obligations under building contracts may be sufficiently certain to be provable claims in bankruptcy. See authorities there cited, 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_usc1sect	1291	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". PLANT ECONOMY, INC., Appellant, v. MIRROR INSULATION COMPANY, Inc., Appellee. No. 14101. United States Court of Appeals Third Circuit. Argued July 16, 1962. Decided Sept. 26, 1962. Philip G. Hilbert, New York City, for appellant. Albert Sperry, Trenton, N. J., for ap-pellee. Before BIGGS, Chief Judge, and HASTIE and GANEY, Circuit Judges. BIGGS, Chief Judge. The defendant, Mirror, has filed a motion to docket and dismiss an appeal by the plaintiff, Plant, from a final judgment in defendant’s favor. The motion alleges that the appeal was not taken within thirty days after the entry of the judgment as required by rule 73(a), Fed.R. Civ.Proc., 28 U.S.C., and that the order of the court below extending the period for taking the appeal was void and of no effect. Since the appeal has now been docketed , we consider only whether the appeal must be dismissed. The judgment appealed from was entered on March 30, 1962, and, being final, was appealable. 28 U.S.C. § 1291. The notice of appeal was filed in the District Court on May 28, 1962. This was long after the expiration of the 30-day appeal period fixed by 28 U.S.C. § 2107 and Rule 73(a). On May 8, 1962, however, Plant filed a motion, supported by affidavits, in the court below for an extension of the appeal period to May 29, 1962, on the ground that its failure to file a timely appeal was due to excusable neglect since it was not until May 3, 1962 that it learned of the entry of the judgment. On May 8, 1962, without prior notice to Mirror of the filing of the motion or of any hearing in respect to it, the extension was granted and an order was entered. It recited that Plant's motion had been made “for good cause and that plaintiff’s failure to [appeal] within the period originally prescribed was the result of excusable neglect”. A copy of the order was mailed to Mirror on the same day and was received by it in due course. The order of May 8, 1962 was ineffective to extend the appeal period. An extension of time for the taking of an appeal, granted ex parte after the expiration of the original appeal period, is inconsistent with provisions of Rule 6(b) and Rule 6(d). Before the expiration of the original thirty-day period, the court could have extended the appeal period with or without motion or notice. But since no order extending the appeal period was made until after the thirty-day period had expired, the court was without authority to act ex parte. This was the conclusion reached in North Umberland Mining Co. v. Standard Acc. Ins. Co., 193 F.2d 951, 952 (9 Cir. 1952) based upon reasons which appear to us to be unassailable. Cf. Swindell-Dressler Corp. v. Dumbauld et al., 308 F.2d 267 (3 Cir. 1962). It follows that the appeal filed on May 29 was too late unless something done thereafter in the court below ■cured the infirmity. On June 4 Mirror filed a motion in the court below to dismiss the appeal upon the ground that it had not been filed in time and that the ex parte order of May 8 was void and of no effect. This motion was heard, after notice to plaintiff, on June 25. During the argument the court acknowledged that it should have held a hearing before entering the order extending the period of appeal, but said that if its order was “void ab initio” as was held in North Umberland Mining Co. v. Standard Acc. Ins. Co., supra, then the filing of the notice of appeal was a nullity and was ineffective to divest the District Court of jurisdiction to proceed further in the case. Accordingly, the court stated that it would rectify any possible error in the granting of the ex parte extension order by proceeding to hear counsel for both parties argue whether plaintiff’s failure to take an appeal within the initial thirty-day appeal period was due to excusable neglect warranting an extension of the time to appeal. The court then found, as we have stated, that failure to appeal within the original thirty-day period was due to excusable neglect. It concluded the hearing by saying: “Gentlemen, submit an order that we deny defendant’s motion for attorneys’ fees, and that since defendant has shown excusable neglect, an appeal should be allowed in the Plant Economy decision.” No written order allowing an appeal out of time was made by the court below. The court spoke no words of such a kind as would suggest an intention on its part that its opinion should serve as an order. Cf. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232-233, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). On the contrary the court by the very words quoted above made it plain that an order should be submitted by counsel. No order remained on the record but the void order of May 8, 1962, entered ex parte. But even if the court below had entered a written order on June 25, 1962 purporting to allow Plant to appeal out of time it would have been without the jurisdiction, the power, to have entered a valid order of extension. The time limits prescribed by Rule 73(a) are precise and definite. It authorizes a trial court to “extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.” See note 2, supra. Final judgment was entered, as we have said on March 30, 1962. Eighty-seven days elapsed before the court below on June 25, 1962, indicated that it would extend Plant’s time for taking its appeal. The court was then without power to enter a valid order of extension. It follows that nothing which was done after the filing of the appeal on May 29 cured its then existing infirmity of untimeliness. The views which we have expressed make it unnecessary for us to consider whether the failure of the Plant to take an appeal was due to excusable neglect based upon its failure to learn of the entry of the judgment appealed from. We recognize that the Federal Rules of Civil Procedure must be construed liberally to bring about a just, speedy and inexpensive determination of every action. Any requirement of compliance with barren technical formalities is to be avoided. But it cannot be denied that certain formalities are indispensable if litigation is to be just, speedy and inexpensive. This fundamental and most important objective can be achieved only by adherence to rather than rejection of the rules. Healy v. Pennsylvania R. Co., supra, 181 F.2d at pp. 934, 937. Since notice of appeal was not filed until after the expiration of thirty days from the entry of the judgment appealed from, and no effective action was taken in the court below to extend the appeal period, we do not possess the power to entertain the appeal. Consequently, it will be dismissed for lack of jurisdiction. . The appeal was docketed on July 6, 1962, the same date on which the present motion was filed upon the payment of the required fee by Plant. . Rule 73(a), Fed.R.Civ.Proc., 28 U.S.C., states in part: “When an appeal is permitted by law from a district court to a court of appeals the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from * * * except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed. * * * ” 28 U.S.C. § 2107 is substantially similar. . While the motion makes no mention of either 28 U.S.C. § 2107 or Rule 73(a), they were undoubtedly the basis of plaintiff’s action. See footnote 2, supra. . The docket entry of May 8, 1962 reads: “Order extending time to appeal to May 29, 1962, filed (Lane) Notice mailed.” In the brief of Mirror it is stated at p.3: “The first knowledge of the Court’s action in connection with such motion, which was received by appellee, was gained upon the receipt of the'order of the Court dated May 8, 1962 granting said motion.” . Rule 6 (b) states: “When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under rules 25, 50(b), 52(b), 59(b), (d) and (e), 60(b), and 73(a) and (g), except to the extent and under the conditions stated in them.” Rule 6(d) states: “A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time.” . The District Court, at the hearing held on June 25, 1962, which is discussed later in the opinion, admitted the incorrectness of entering the extension order ex parte. Speaking of its action it said (Transcript p. 12): “I think I should have held a hearing.” Speaking of the order the District Court stated: “[I]t is ab initio defective. I have already said that. I realize that.” . It is a general rule, subject to some qualifications, that an appeal suspends the power of the court below to proceed further in the case. Hovey v. McDonald, 109 U.S. 150, 157, 3 S.Ct. 136, 27 L.Ed. 888 (1883). One exception, in both civil and criminal cases is that the jurisdiction of the lower court to proceed in a cause is not lost by the taking of an appeal from an order or judgment which is not appealable. Riddle v. Hudgins, 58 F. 490, 493 (Sth Cir.1893); Euziere v. U.S., 266 F.2d 88 (10th Cir.1959), reversed on other grounds 364 U.S. 282, 80 S.Ct. 1615, 4 L.Ed.2d 1720 (1960); Resnik v. La Paz Guest Ranch, 289 F.2d 814, 818 (9th Cir.1961); U. S. v. Orescent Amusement Co., 323 U.S. 173, 177-178, 65 S.Ct. 254, 89 L.Ed. 160 (1944). Cf. Healy v. Pennsylvania R. Co., 181 F.2d 934, 936-937 (3d Cir.1950), cert. den. 340 U.S. 935, 71 S.Ct. 490, 95 L.Ed. 674 (1951). An appeal from a non-appealable judgment or order is sometimes characterized as a “nullity”. U. S. v. Crescent Amusement Co., supra, 323 U.S. p. 177, 65 S.Ct. p. 256; Euziere v. U. S., supra, 266 F.2d p. 91. Because of our views about the proceedings on June 25, later expressed in the text of the opinion, it is unnecessary to decide whether the filing of the abortive notice of appeal on May 29 deprived the trial court of jurisdiction to proceed further. Resnik v. La Paz Guest Ranch, supra, 289 F.2d p. 818, intimates that jurisdiction is lost only when the appeal is timely. . This motion had also been heard on June 25, 1962 immediately prior to the motion of defendant to dismiss the appeal. . As stated in the body of this opinion no written order was made by the court after its oral opinion was rendered. This would not necessarily have deprived its oral opinion from having the effect of an order provided the court clearly intended its opinion to be its final act in adjudicating or disposing of the matter before it. See United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232-233, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). But the court’s request for the submission of an order allowing the appeal indicated that it did not intend that its opinion should have the status of an order. In the federal courts an opinion is not a part of the record proper. A statement in an opinion of the conclusion reached by a court, even though couched in mandatory terms, should not serve as an order or judgment of the court. It is most desirable in order to avoid the confusion so apparent in the present record that a definitive order or judgment be made and entered in the court’s docket. In re D’Arcy, 142 F.2d 313, 315 (3 Cir. 1944). Since no order was made on the opinion, the court made no effective disposition of the matter before it. Healy v. Pennsylvania R. Co., 181 F.2d 934, 936 (3 Cir.1950), cert. den. 340 U.S. 935, 71 S.Ct. 490, 95 L.Ed. 674 (1951). The entry which was made in the docket on June 25 does not affect our views. That entry reads: “6-25-62 Hearing on Motion to Dismiss Notice of Appeal * * * Ordered Motion denied”. The making of a docket entry was an erroneous ministerial act of the clerk. United States v. Rayburn, 91 F.2d 162, 164 (8th Cir.1937). Since, in fact, no order had been made denying defendant’s motion, the docket entry possesses no legal effect. 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_usc1sect	1983	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". 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: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number. Answer:
songer_state	56	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". Michael PHILLIPS and Sophia Phillips, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 11758. United States Court of Appeals Seventh Circuit. Nov. 21, 1956. Joseph M. Solon, Chicago, 111., for petitioners. Charles K. Rice, Asst. Atty. Gen., Mildred L. Seidman, Attorney, U. S. Dept, of Justice, Washington, D. C., Lee A. Jackson, Robert N. Anderson, Attys., Dept, of Justice, Washington, D. C., for respondent. Before MAJOR, FINNEGAN and SCHNACKENBERG, Circuit Judges. MAJOR, Circuit Judge. Petitioners, husband and wife, seek review of a decision of the Tax Court entered January 18,1956, 25 T.C. 767. The case involves a dispute as to the taxability as income of certain sums received by petitioner, Michael Phillips. Sophia Phillips is a party only because she and her husband filed joint tax returns for the years involved. No further consideration need be given her and hereafter Michael will be referred to as the petitioner or taxpayer. During the years in controversy, 1948 and 1949, taxpayer, a licensed and practicing attorney of the State of Illinois, received certain contingent fees which were not reported in his income tax returns for those years. Respondent held that the contingent fees thus received should have been reported for the years in which they were received and, based thereon, determined deficiencies in the taxpayer’s income tax. This determination was sustained by the Tax Court. The facts, largely stipulated, are not in dispute. As a premise for the legal issue presented to this court, a brief statement will suffice. Milton Raynor and Thomas Rosenberg, attorneys and practitioners of the State of Illinois, were employed by persons engaged in the night club and cabaret business to contest the taxability of their businesses under the Illinois Retailer’s Occupation Tax Act (commonly known as the Sales Tax). This employment was upon a contingent fee basis. Petitioner herein entered into a contingent fee arrangement with said Raynor and Rosenberg to act as co-counsel. On November 14, 1945, a proceeding was filed in the Circuit Court of Cook County, Illinois, to test the applicability of the statute. On December 1, 1948, a decree was entered in favor of the plaintiffs therein (taxpayer’s clients). A supplemental order specifying the amounts to be refunded to each plaintiff was entered December 20, 1948. Shortly thereafter and during the year 1948, negotiable warrants payable to plaintiffs in that action were issued and delivered to taxpayer as one of the attorneys for the payees. By letter dated December 30, 1948, taxpayer delivered these warrants to the Exchange National Bank of Chicago, with directions to secure the endorsement of the payees and pay to them the difference between the refund secured for each and the contingent fee agreed upon, which was to be credited to taxpayer’s newly opened checking account. This was done, and on December 31, 1948, taxpayer’s account was credited with an initial deposit of $33,047.07. On the same day, taxpayer paid $10,000 in counsel fees to his associate attorneys by a check drawn against this account. The same procedure as to the remaining warrants was followed in 1949, and as a result taxpayer’s account at the Exchange National Bank was credited in the amount of $43,575.98. In addition, taxpayer deposited in his regular bank account at the American National Bank the sum of $1,496.25. Thus, petitioner received fees during the year 1949 in the amount of $45,072.23. Of this amount taxpayer paid by check to his associate counsel a total of $15,000. Respondent allowed the taxpayer credit for the amounts which he had paid his associate counsel, that is, $10,000 thus paid in 1948, and $15,000 paid in 1949. Taxpayer was charged by respondent with the net amount of fees received by him for the respective years, that is, $23,047.-07 for 1948, and $30,072.23 for 1949. Taxpayer failed to report the fees thus received for the respective years and because of such failure respondent determined deficiencies in his tax for those years. Substantially all of the fees thus received by taxpayer were expended by him in 1949 in payment of personal obligations. As of the first of August, 1949, there remained a balance of $11.61 in his checking account at the Exchange National Bank. On January 21, 1949, the State of Illinois took an appeal to the Supreme Court of Illinois from the decision of the Circuit Court of Cook County, Illinois, rendered December 1, 1948. On November 21,1949, the Supreme Court reversed the decree of the Circuit Court, without remandment, and denied petition for rehearing January 12, 1950. Massell v. Daley, 404 Ill. 479, 89 N.E.2d 361, 13 A.L.R.2d 1356. In January 1950, the State of Illinois commenced an action in the Circuit Court of Cook County, naming as defendants substantially all of the plaintiffs who had been awarded a refund as a result of the Circuit Court decision, to recover monies allegedly wrongfully paid by the State Treasurer under the Circuit Court decree. In this action judgment was rendered in 1953, in favor of the State, by the terms of which those who had profited by the early action of the Circuit Court were required to refund to the State amounts thus received (this included the clients of taxpayer and associate counsel). This judgment was affirmed by the Supreme Court March 17, 1954, rehearing denied May 19, 1954. People of the State of Illinois v. Massell, 2 Ill.2d 603, 119 N.E.2d 259. While we think it immaterial, perhaps in fairness to the taxpayer we should also state that he testified in rather uncertain fashion that after the first decision of the Supreme Court reversing the judgment of the Circuit Court he stated to some of his clients that there had been an erroneous receipt of fees by him in 1948 and 1949, and that subsequently, in 1954, he gave collateral to one of his clients, guaranteeing repayment of said-fee. In this connection it should be noted that taxpayer has not repaid or offered to repay to his clients any of the fees involved in this controversy and received by him as previously shown. It should' also be noted that taxpayer’s clients did not, after the decision of the Supreme-Court invalidating the Circuit Court judgment, acknowledge their liability to-make refund to the State. On the other-hand, they defended in the action by the State to compel such refund, which resulted, as shown, in an unfavorable decision by the trial court, later affirmed by the Supreme Court. Taxpayer argues that the refunds made to his clients by reason of the Circuit Court judgment were erroneous and void in view of the subsequent decision of the Supreme Court reversing that judgment. It follows, so it is argued, that the fees received in 1948 and 1949 by the taxpayer, who was employed on a contingent fee basis, were likewise erroneous and that as a result he was obligated to return such fees to his clients. This argument is emphasized as to the year 1949, based on the premise that his obligation to return such fees became known at the time of the decision of the Supreme Court, in December of that year. In other words, having been employed on a contingent fee basis, it became known at the time of the Supreme Court decision that petitioner was not and never could be entitled to fees for services which he had rendered. On the other hand, respondent urges that the fees paid to taxpayer in 1948 and 1949, as determined by the Tax Court, were received under a claim of right without restriction as to their use, and thus were properly includible in his income for those years. An imposing line of Supreme Court cases sustains the soundness of respondent’s position. In North American Oil Consolidated v. Burnet, 286 U.S. 417, at page 424, 52 S.Ct. 613, at page 615, 76 L.Ed. 1197, the court stated: “If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.” In United States v. Lewis, 340 U.S. 590, 71 S.Ct. 522, 95 L.Ed. 560, the court, upon a factual situation more favorable to the taxpayer than that of the instant case, applied the claim of right doctrine. There, the taxpayer received a bonus in the amount of $22,000, subsequently determined in State Court litigation to have been improperly computed. Under compulsion of a judgment, the taxpayer in a subsequent year repaid $11,000 of the bonus thus received. The court held that the taxpayer was required to report the entire amount of the bonus for the year in which it was received, notwithstanding the fact that it was later adjudicated that one-half of the bonus had been paid to the taxpayer by mistake, which he was subsequently required to repay. In contrast, the taxpayer in the instant situation has never repaid the fees alleged to have been erroneously received. More than that, there has not been any adjudication determining his liability to make such repayment. In the Lewis case, referring to the statement in North American Oil (above quoted), the Court stated, 340 U.S. at page 591, 71 S.Ct. at page 523: “Nothing in this language permits an exception merely because a taxpayer is ‘mistaken’ as to the validity of his claim.” Further, the court stated, 340 U.S. at page 592, 71 S.Ct. at page 523: “The ‘claim of right’ interpretation of the tax laws has long been used to give finality to that period, and is now deeply rooted in the federal tax system. * * * We see no reason why the Court should depart from this well-settled interpretation merely because it results in an advantage or disadvantage to a taxpayer.” In Healy v. Commissioner, 345 U.S. 278, 73 S.Ct. 691, 97 L.Ed. 1007, the court again applied the claim of right doctrine and held that the taxpayer was required to report income in the year of receipt notwithstanding that he was in a subsequent year required to make a return of a portion of the amount thus received. In discussing the doctrine the court stated, 345 U.S. at page 282, 73 S.Ct. at page 674: “There is a claim of right when funds are received and treated by a taxpayer as belonging to him. The fact that subsequently the claim is found to be invalid by a court does not change the fact that the claim did exist.” In that case, as here, it was argued that the claim of right doctrine was not applicable because of a restriction upon the right of the taxpayer to use the funds during the taxable year. The court denied the contention, with the statement, 345 U.S. at page 284, 73 S.Ct. at page 675: “But a potential or dormant restriction, such as here involved, which depends upon the future application of rules of law to present facts, is not a ‘restriction on use’ within the meaning of North American Oil [Consol.] v. Burnet, supra.” There can be no question but that the taxpayer received the fees in 1948 and 1949 under a claim of right, and the fact that it was subsequently determined that the claim was ill founded is immaterial. There is no merit in taxpayer’s argument that the decision of the Supreme Court in December 1949 determined his liability to make a refund to his clients. In the first place, that decision did not become final until the following year, upon denial of a petition for rehearing. In any event, it is not discernible on what basis taxpayer’s liability to make refund to his clients would have become fixed, at least prior to the time when the liability of his clients to make refund to the State was determined, and this did not occur until the decision of the Supreme Court in 1954. More than that, as already noted, taxpayer has not repaid to his clients any portion of the fees received during the taxable years in controversy. Also without merit is taxpayer’s argument that the decision of the Supreme Court in 1949 placed a restriction upon his right to use the fees received. At that time the money received as fees had already been expended by the taxpayer for his own personal use. The record is devoid of any showing of a restriction upon his right to use such funds; in fact, the taxpayer testified that he was aware of no restriction on his right to use and spend the funds. Taxpayer emphasizes the fact that as an attorney he was acting in a fiduciary relation with his clients which distinguishes this case from those in which the claim of right doctrine has been applied. No case is cited supporting such a distinction and we think it is of no consequence. True, an attorney is under obligation to refund to his clients monies improperly or erroneously received but, so far as we are aware, all persons are under a like obligation. There is no point in relating further the proceedings which occurred subsequent to the taxable years in controversy relative to the litigation in which the clients of the taxpayer were interested. This is so for the reason that under the claim of right doctrine such proceedings are immaterial. In our view, the Supreme Court decisions above cited are controlling and require a decision adverse to the taxpayer. Such being the case, no purpose could be served in citing or discussing cases upon which the taxpayer relies. The decision of the Tax Court is Affirmed. 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_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, Appellee, v. John Gregory CROZIER, Appellant. Nos. 720, 873, Dockets 92-1175, 92-1215. United States Court of Appeals, Second Circuit. Argued Jan. 19, 1993. Decided March 1, 1993. George A. Yanthis, Asst. U.S. Atty., Albany, NY (Gary L. Sharpe, U.S. Atty., and Thomas Spina, Jr., Asst. U.S. Atty., on the brief), for appellee. Raymond A. Kelly, Jr., Albany, NY, for appellant. Before: TIMBERS, WALKER, and McLAUGHLIN, Circuit Judges. TIMBERS, Circuit Judge: John Gregory Crozier, an architect in Albany, appeals from a judgment entered in the Northern District of New York, Con. G. Cholakis, District Judge, convicting him of conspiracy to bribe a public official, in violation of 18 U.S.C. § 371 (1988), and of making false statements in subscribing a tax return, in violation of 26 U.S.C. § 7206(1) (1988). The primary object of the conspiracy was a $30,000 payment made to James J. Coyne, Jr., the Albany County Executive, who was instrumental in helping Crozier obtain a contract with Albany County to provide architectural services for a civic center (now known as the Knickerbocker Arena). Crozier received a pre-Sen-tencing Guidelines sentence of eighteen months imprisonment on the conspiracy count and a concurrent six month sentence on the false statements count. He was fined $25,000 and was required to pay a $50 special assessment on each count. Crozier claims that the court erred in instructing the jury as to the parameters of the statute, erred in not allowing him to see the charge before summation, erred in permitting the government to elicit an alleged co-conspirator’s invocation of the Fifth Amendment before the jury, and erred in limiting his examination of a key witness. He further claims that there was insufficient evidence to support the false tax return verdict. Appellee cross appeals, claiming that appellant should be sentenced under the Guidelines. We reject Crozier's claims on appeal and appellee’s claim on the cross appeal. We affirm the judgment of the district court finding Crozier guilty of conspiracy and filing a false tax return. I. We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. The Albany County Industrial Development Agency (IDA) oversaw the development of the civic center project from late 1984 or early 1985 until the summer of 1985. Coyne was one of the three members of the IDA. Joseph V. Zumbo, a close friend of Coyne, was its general counsel. Coyne played a prominent role in the IDA. In 1985, the IDA retained Crozier’s firm to perform preliminary studies for the construction of the civic center. In the summer of 1985, the county legislature took control of the project. A special committee was established to oversee the project and make recommendations to the legislature. Without interviewing any other architects, the committee, in 1986, recommended that the legislature select Crozier’s firm as the architects for the project. The committee members testified that Crozier had an advantage because of the work he had already done and they were satisfied with his firm’s presentation. The County and Crozier entered into a contract on April 18, 1986. Even though the legislature had taken charge of the project, Coyne remained quite influential in the development of the project. He frequently met with the project manager and was consulted about problems. He consulted with legislators about aspects of the project which would result in increasing Crozier’s fee and attended many of the meetings. In June or July of 1986, Crozier claims he decided to give $30,000 to Coyne as a loan. Since both men were involved in the civic center project at that time, Crozier contends that he wanted to avoid the appearance of impropriety that would be created by giving the money directly to Coyne. He sought help from Zumbo. Crozier and Zumbo met in a restaurant. Zumbo suggested that the deal be structured as two transactions: (1) Crozier would lend $30,-000 to Zumbo, and (2) Zumbo would lend $30,000 to Coyne. On or about July 9, 1986, Crozier’s firm issued him a $30,000 check. It initially was listed as a loan to an officer and then listed as a bonus or compensation for Crozier. Crozier then gave Zumbo a personal check for $30,000, with the notation “real estate dev.” on the check. Zumbo deposited the check in his law office’s general operating account, and gave Coyne a check from the same account for $30,000. Coyne deposited $30,000 in his personal bank account on July 9, 1986. None of Crozier’s financial statements or loan applications for the period of 1987-89 reflects a $30,000 asset, as loans receivable generally are considered. Further, no loan documents were created in 1986 for the transaction. There was no repayment schedule and no interest charges. At trial, Zumbo testified that in 1989 he created a note from Coyne to himself, but did not recall whether he had created a note from himself to Crozier. Zumbo created a loan document between himself and Crozier in 1991, but dated it July 7, 1986, without indicating that it had been created five years later. On September 25, 1991, Crozier was indicted in three counts. Count I charged Crozier with conspiracy under 18 U.S.C. § 371 corruptly to give or agree to give anything of value to Coyne “for or because of” Coyne’s conduct in connection with transactions involving the civic center project in violation of 18 U.S.C. former § 666(c) (hereinafter, § 666(c)). Count II charged Crozier with “knowingly, willfully, and corruptly” giving and agreeing to give $30,000 to Coyne in connection with business and transactions of Albany County and the IDA, including awarding the contracts in 1985 and 1986 to Crozier’s firm for the architectural services for the civic center project, and for the performance of the contract and change orders in violation of § 666(c). Count III charged Crozier with filing a false tax return in violation of 26 U.S.C. § 7206(1). In 1987, Crozier’s firm issued a check for $12,000 to Clark D. Richey, C.P.A. It was posted in the corporate books and records as a professional legal fee, but actually was used as an investment in a horse partnership. An accountant for the Crozier firm testified that he contacted the firm’s bookkeeper regarding the $12,-000 payment and was told that she did not know the purpose of the expenditure, an account confirmed by the bookkeeper. Although the accountant did not recall contacting Crozier regarding the $12,000 payment, he testified that he generally dealt with Crozier directly when the bookkeeper was unable to answer a question. After its communications with Crozier Associates, the accounting firm changed the classification of the expenditure to “accounting fees.” Ultimately, the $12,000 payment was deducted on Crozier Associates’ 1987 U.S. corporate income tax return as a professional fee relating to an organizational plan. The indictment charged Crozier with signing the return under penalty of perjury, and declaring it to be true and correct, even though he knew the money was for an investment and not for the “professional fees” listed. Throughout the trial, Crozier contended that he should be acquitted because § 666(c) prohibited only bribery — a specific, corrupt intent to influence present or future decisions. Through a motion for a judgment of acquittal prior to jury selection, Crozier argued that this critical element was missing from the indictment. There was no proof at trial of any intent to influence present or future decisions of Coyne, primarily because the contract already had been awarded when the loan was given. Crozier also sought to limit the government’s proof to a strict bribery theory through voir dire questions, objections, and proposed jury instructions. The court instructed the jury with respect to the conspiracy charged in Count I and with respect to Count II by basically following the language of the indictment, using the “for or because of” Coyne’s conduct language. With respect to Count II, the court charged that in order to convict under § 666(c), the jury must find beyond a reasonable doubt that Crozier knowingly and willfully gave or agreed to give a thing of value to Coyne for or because of Coyne’s conduct in connection with the civic center project, and that Albany County received more than $10,000 in federal financial assistance in any one year. The court further charged that § 666(c) would be violated if “the defendant gave or agreed to give the $30,000 for or because of conduct previously performed or to be performed by James J. Coyne, Jr., in connection with architectural services provided by the defendant relating to the Albany County Civic Center. Doesn’t matter if the thing of value was given before or after Coyne’s conduct as long as you find beyond a reasonable doubt that it was given for or because of that conduct.” In the midst of deliberations, the court received a note from the jury requesting clarification as to whether the government must have proven all parts of Counts I and II. The court took the opportunity to advise the jury on the various elements which make up each count. As to Count I, the court instructed on the basic elements of a conspiracy, giving the jury the two theories of the object of the conspiracy: (1) if Crozier agreed to give or did give something of value to Coyne in connection with the civic center project, or (2) if Coyne solicited, accepted, or agreed to accept anything of value from Crozier because of the conduct of Coyne in connection with the civic center project. As to Count II, the court instructed that the $30,000 must have been given pursuant to an agreement between Coyne and Crozier under which Coyne would do something for Crozier in relation to the civic center project, or that the $30,-000 was given without an agreement but with the intent to influence Coyne to do something of value for Crozier in the future in relation to the civic center project. The court gave the jury special interrogatories for Count II that were consistent with the court’s instructions on that count. No such interrogatories were given for Count I. The jury found Crozier guilty on the conspiracy charged in" Count I and for filing a false tax return charged in Count III. It acquitted him of the substantive charge in Count II. On appeal, Crozier asserts that the conspiracy conviction was based on a gratuity theory rather than bribery, which he claims is impermissible under the statute; the court made a number of errors in its charge to the jury; the jury was prejudiced by the testimony of an alleged co-conspirator; the court excluded essential testimony; and there was insufficient evidence to support the false tax return verdict. The government cross appeals, asserting that Crozier should have been sentenced under the Guidelines. II. (A) Crozier’s Claim that His Conviction was on a Gratuity and not a Bribery Theory Section 666(c) was enacted to punish corrupt payments made to state or private officials who disburse federal funds. S.Rep. No. 225, 98th Cong., 2d Sess. 369-70, reprinted in 1984 U.S.C.C.A.N. 3182, 3510-11. It was enacted to supplement 18 U.S.C. § 201 which covered both bribery and gratuities made to federal public offi-ciáis. 18 U.S.C. §§ 201(b)(1) & (c)(1)(A) (1988). Unlike § 201, however, § 666(c) does not distinguish between bribery and gratuity, creating some confusion. The language of § 666(c) is similar to the gratuity language of § 201, but the legislative history refers only to bribery and the maximum penalty under the statute is closer to the maximum penalty under § 201’s bribery provisions. United States v. Jackowe, 651 F.Supp. 1035, 1036 (S.D.N.Y.1987). On appeal, Crozier asserts that the court erred in its jury charge. He claims that the charge with respect to Count I was ambiguous and left room for the jury to convict him on a gratuity theory, as well as on a bribery theory. Crozier asserts, however, that § 666(c) is a bribery only statute, and the fact that his conviction could have been grounded on a gratuity theory makes his conviction reversible in that the court allowed the jury to convict on a legally insufficient theory. He says that, while the court submitted special interrogatories to the jury for Count II — the substantive bribery charge — which limited the jury’s verdict to a bribery theory rather than a gratuity theory, such was not done for the conspiracy charge. He contends therefore that the jury was not instructed on a bribery only theory for the conspiracy count and there is a possibility (if not a likelihood) that the jury based his conspiracy conviction on facts which lend themselves to a gratuity theory only. He contends that his argument is bolstered by the fact that, although he was convicted for conspiracy, he was acquitted on the substantive count, for which the jury received specific instructions on a bribery only theory. If § 666(c) were a bribery only statute, Crozier is correct in his claim that the jury charge was faulty. In the court’s initial charge, the jury was instructed that Crozier could be found guilty if he gave Coyne money “in exchange for Mr. Coyne’s performance or promise to perform some official act....” While this instruction was given for Count II, the substantive charge, it was made clear to the jury that the substantive charge was the object of the conspiracy. Further, the indictment, which the jury had during deliberations, did not charge bribery, but stated that the object of the conspiracy at issue was “[t]o corruptly give and agree to give anything of value to James J. Coyne, Jr. because of [the] conduct of James J. Coyne Jr. in connection with the business, transaction, and series of transactions of Albany County, and its IDA, involving anything of value of $5,000 or more [,] in violation of 18 U.S.C. former § 666(c)....” Based on the plain meaning of the indictment, therefore, there was ample leeway for a jury to convict on a gratuity theory. Even though in the midst of deliberations the court answered the jury’s question by limiting Count II to a bribery only theory, this is no cure for the earlier ambiguities. It is quite possible that, by the time this limitation was given, the jury already had reached its verdict on Count I, finding appellant guilty under the ambiguous and broader charge. Count I called for a general verdict, no interrogatories having been given. As the reviewing court, therefore, we have no way of determining what was the jury's basis for its verdict. We reject, however, Crozier’s argument (and the interpretation given by the district court) that § 666(c) is a bribery only statute. Although Judge Sweet’s analysis of the statute in Jackowe, supra, 651 F.Supp. at 1035-36, construed § 666(e) as a bribery only statute, we believe that the statute, like § 201 (which it was enacted to supplement), should be construed to include gratuities as well. This assertion is supported by the broad language of § 666(c) which provides: “(c) Whoever offers, gives or agrees to give an agent of an organization or of a State or local government agency, described in subsection (a), anything of value for or because of the recipient’s conduct in any transaction or matter or any series of transactions or matters involving $5,000 or more concerning the affairs of such organization or State or local government agency, shall be imprisoned not more than ten years or fined not more than $100,000 or an amount equal to twice that offered, given or agreed to be given, whichever is greater, or both so imprisoned and fined.” (emphasis added). The “for or because of” language of this statute includes both past acts supporting a gratuity theory and future acts necessary for a bribery theory. Moreover, § 201(c)(1)(A), the section which covers gratuities given to federal officials, provides, “[wjhoever ... gives, offers, or promises anything of value to any public official ... for or because of any official act performed ...” shall be subject to fines and imprisonment. 18 U.S.C. § 201(c) (emphasis added). It is the “for or because of” language in § 201(c)(1)(A) which distinguishes it as a gratuity section from the bribery prohibitions found in § 201(b)(1), which applies to payments or agreements to make payments with the intent to “influence” or “induce” official action. S.Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in 1962 U.S.C.C.A.N. 3852, 3856-57 (discussing former § 201). It logically follows, therefore, that where Congress used the same language in two statutes, the second of which was enacted to supplement the first, the same meaning should be applied to both. This interpretation makes this case a clear one, as the facts lean more toward a gratuity theory. Moreover, we do not have to read the minds of the jurors and assume that they took the mid-deliberation jury charge for Count II and applied it to Count I. Instead, we believe that it was possible, and proper, for the jury to have found the object of the conspiracy to be payment for past influence. Unlike Judge Sweet, we do not believe that one of the two meanings of § 201, prohibiting both bribery and gratuities given to federal officials, needs to be lost in a statute designed to extend the offense to state and local officials. The Jackowe court’s rationale for limiting the statute to only one of the theories is that the statute contains no explicit intent and therefore it must imply either intent for bribery or intent for a gratuity. We disagree. If the charge is brought on a bribery theory, then the government must prove the intent to reward an official for future conduct; if the charge is brought on a gratuity theory, the intent must be to reward the official for past conduct. Crozier relies on the fact that an amendment added in 1986 to § 666(c), making the statute applicable only to payments made corruptly, with the intent to influence or reward an official, made § 666 applicable to gratuities. This amendment, however, is identical to an amendment made to 18 U.S.C. § 215, a bank bribery statute. The amendments were made to limit the scope of these statutes, and not to broaden them to include new theories. H.Rep. No. 99-335, 99th Cong., 2d Sess. 5 (1986), reprinted in 1986 U.S.C.C.A.N. 1782, 1786-87; H.Rep. 99-797, 99th Cong., 2d Sess. 30 (1986), reprinted in 1986 U.S.C.C.A.N. 6138, 6153 n. 9. Judge Sweet also emphasized that § 666 is titled “Theft or Bribery Concerning Programs Receiving Federal Funds”, and that the legislative history of the statute “speaks entirely in terms of ‘bribery,’ and never uses the words ‘gratuity’ or ‘gift.’ ” Jackowe, supra, 651 F.Supp. at 1036; see S.Rep. No. 225, 98th Cong., 2d Sess. 369-70 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3510-11 (emphasis added). The Senate Report, however, addresses the purpose of this section as one which will augment the class of persons who are liable under § 201. The report states that it was unclear under § 201 whether state or local officials were considered “public officials” per the statute. The report discusses § 201 in general terms, without limiting it to a specific section (such as the section which provides for the “bribery theory”). The report then goes on to state that the intent of enacting § 666 was to cover situations like United States v. Mosley, 659 F.2d 812 (7 Cir.1981), a case in which a state official was convicted of violating a gratuity provision of former 18 U.S.C. § 201(g), now id. § 201(c)(1)(B). Judge Sweet’s reliance on the loose use of the term “bribery” in the legislative history appears to be unfounded. Judge Sweet also noted that the ten year maximum sentence available under § 666(c) is far closer to the fifteen year maximum term available under the bribery provision of § 201, see 18 U.S.C. § 201(b), than to the two year maximum available under the gratuity provision of § 201, id. § 201(c). Jackowe, supra, 651 F.Supp. at 1036 (citing former § 201). Judge Sweet was concerned that there might be equal protection or disproportionality problems if § 666(c) were construed to permit greater punishments to persons who give gratuities to state and local officials than to persons who give gratuities to federal officials. Whatever the merits of Judge Sweet’s constitutional concerns, they are not implicated in this case. Crozier received an eighteen month sentence on the conspiracy count, well within the two year maximum applicable to violations of § 201(c). (B) Section 666(c) is not Void for Vagueness Crozier asserts that § 666(c) is void for vagueness and was applied unconstitutionally against him because it does not include an explicit mens rea requirement, and fails clearly to describe the conduct it prohibits. He is correct in his claim that a statute must describe with some particularity the conduct it proscribes or requires. Kolender v. Lawson, 461 U.S. 352, 358 (1983). A statute is not unconstitutionally vague if it sufficiently alerts ordinary people as to what is prohibited, and is not applied in an arbitrary or discriminatory way. Id. at 357. We disagree with Crozier’s assertion. We believe that the statute does contain the mens rea of intent, and therefore is not void for vagueness. Further, § 666(c) was not unconstitutional as applied to Crozier. The court clearly instructed the jury of the mens rea required by Crozier for a violation of § 666(c). In the charge with respect to Count I, the court specifically stated that the conspiracy must have been willfully formed and Crozier must have willfully joined it. The court then defined willful. The court also gave adequate instructions about the meaning of the “for or because of” language in the statute. Since we hold that § 666(c) could be violated on a gratuity theory, the fact that the court’s instruction did not adequately distinguish between gratuity and bribery is not a problem, as Crozier contends on appeal. We hold that there was a mens rea requirement included in the statute as applied to Crozier, and the statute was not unconstitutionally vague. (C) Crozier Did Not Receive Proposed Jury Instructions Before Summation, Nor Were His Requests For Interrogatories Granted Crozier asserts that the court committed a “fundamental error” by not providing him with a copy of the jury instructions before his summation and by failing to submit to the jury special interrogatories requested by Crozier concerning the scope of § 666(c). Fed.R.Crim.P. 30 requires the court to rule on requests for jury instructions before summation in order to allow the parties the opportunity to refer to the instructions in their summations. “If the Rule is violated, reversal is required where the defendant can show that he was ‘substantially misled in formulating his arguments’ or otherwise prejudiced.” United States v. Eisen, 974 F.2d 246, 256 (2 Cir.1992) (quoting United States v. Smith, 629 F.2d 650, 653 (10 Cir.), cert. denied, 449 U.S. 994 (1980)). In the instant case, at a pre-charge conference, Crozier learned of the two legal theories about which the court would instruct the jury. Also, the court never agreed to submit the interrogatories that Crozier requested, but merely stated that they would be considered. Crozier was not misled as to what the jury charge would be. While it might be better practice to allow the parties to obtain the charge before the summation, in this case reversal is not required, since Crozier was well aware of what the ultimate charge would be and was able to refer to it in his summation. (D) Joseph Zumbo’s Invocation of Fifth Amendment in Presence of the Jury At trial it was known to the court and counsel that, when Joseph Zumbo was called as a witness, he would invoke his Fifth Amendment privilege against self-incrimination. Crozier requested that such invocation of the privilege should be done outside the presence of the jury to alleviate the impact on the jury. The court allowed the jury to be present. Crozier now asserts that the court committed reversible error by allowing the jury to use inferences arising from a witness’ invocation of the privilege. In Namet v. United States, 373 U.S. 179 (1963), the Supreme Court described two situations in which a witness’ invocation of his Fifth Amendment privilege before a jury in response to a prosecutor’s questions may give rise to reversible error: “1. ‘pros-ecutorial misconduct, when the government makes a conscious and flagrant attempt to build its case out of inferences arising from the use of the testimonial privilege’; and 2. when ‘in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a forum not subject to cross-examination.’ ” Rado v. Connecticut, 607 F.2d 572, 581 (2 Cir.1979) (quoting Namet, supra, 373 U.S. at 186-87), cert. denied, 447 U.S. 920 (1980). In applying the Nam-et rule, our eases look to a number of factors, including “[1] the prosecutor’s intent in calling the witness, [2] the number of questions asked, [3] their importance to the state’s case, [4] whether the prosecutor draws any inference in his closing argument from the witness’ refusal to answer ... and [5] whether the trial judge gives a curative instruction.” Id. at 581. In this case, first, there is no evidence that the government had an improper motive in calling Zumbo. Rather, the government extended immunity to the witness in 'order that he might be able to testify fully before the jury. Second, Zumbo asserted his privilege only three times before the jury. Third, the questions Zumbo refused to answer, whether he had aided Coyne in obtaining County employment and whether he could identify government exhibits, were peripheral to the government’s case against Crozier. Fourth, at no time during the trial did the government attempt to draw any inference from Zumbo’s assertion of his privilege. Finally, the court gave an appropriate cautionary instruction. Under these circumstances, we find no reversible error in the district court’s allowing Zumbo to assert his privilege in the jury’s presence. (E) Zumbo’s Grand Jury Testimony and Conversation with Crozier Crozier argues that the court erred in limiting his cross-examination of alleged co-conspirator Zumbo, precluding him from eliciting details of prior conversations between Zumbo and Crozier under the rule of completeness and in order to rebut a government theory of recent fabrication. In his examination of Zumbo, Crozier sought to bolster a defense theory that he intended the payment to Coyne to be a loan rather than an outright gift. However, as we have held in connection with § 201, any payment that the defendant subjectively believes has value, including a loan, constitutes a thing “of value” within the meaning of § 666(c). United States v. Williams, 705 F.2d 603, 622-23 (2 Cir.), cert. denied, 464 U.S. 1007 (1983); see also United States v. Gorman, 807 F.2d 1299, 1305 (6 Cir.1986) (finding loan to be thing “of value” under former 18 U.S.C. § 201(g), now id. § 201(c)(1)(B)), cert, de nied, 484 U.S. 815 (1987). Thus, the issue of whether the payment was a gift or a loan is irrelevant to the question of Crozier’s guilt or innocence in this case, and his evidentiary arguments consequently fail on the ground of relevance. (F) Evidence to Support the Verdict of Filing a False Tax Return Crozier claims that there was insufficient evidence to support the guilty verdict on Count III. He bases this claim on the standard used in embezzlement cases which allows the conviction to be upheld only if the evidence inexorably supports an inference of guilt and is not consistent with a theory of innocence. United States v. Lavergne, 805 F.2d 517, 522 (5 Cir.1986). This is not an embezzlement case, however, and we must look at the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80 (1942). Based on the facts of this case, which include the books and the testimony of the bookkeeper and accountant, a rational trier of fact could have made this finding beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We hold that the verdict must stand. (G) Cross Appeal Claiming the Court Erred in not Sentencing Under the Guidelines The government asserts that this is a “straddle case,” one that involves a conspiracy which began prior to the effective date of the Guidelines and continued after that date—November 1, 1987. The government therefore claims that Crozier should have been sentenced under the Guidelines. In this case, Crozier was convicted of a conspiracy to violate § 666(c). The conspiracy ended with the $30,000 payment to Coyne. That was what the indictment defined as the object of the conspiracy. The court correctly held that the acts which occurred after November 1, 1987 were merely acts to cover up the conspiracy and were not done in furtherance of the conspiracy. Acts of concealment, without more, do not “extend the life of the conspiracy after its main objective has been obtained.” Eisen, supra, 974 F.2d at 269 n. 8; Grunewald v. United States, 353 U.S. 391, 401 (1957). We hold that this is not a “straddle case.” Crozier should not have been sentenced under the Guidelines. III. To summarize: Section 666(c) prohibits the giving of both bribes and gratuities to state or local officials. Crozier was not wrongly convicted if the jury based its verdict on a gratuity theory. Further, the statute was applied constitutionally to Crozier. The court did not commit reversible error with regard to Zumbo’s testimony. There was sufficient evidence to support a guilty verdict on the false tax return charge. As for the cross appeal, this is not a “straddle case”; the Guidelines are not applicable. Affirmed. 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_casetyp2_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. There are two main issues in this case. The first issue is economic activity and regulation - misc economic regulation and benefits - other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government. Your task is to determine the second issue in the case. 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". CREDIT CARD SERVICE CORPORATION, and John P. Ferry, Petitioners, v. FEDERAL TRADE COMMISSION, Respondent. No. 73-1357. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 26, 1974. Decided March 29, 1974. Stephen C. Rogers, Washington, D. C., for petitioners. John H. Schafer, III, Washington, D.~ C., also entered an appearance for petitioners. Louis C. Keiler, Jr., Atty., F. T. C., with whom Harold D. Rhynedance, Jr., Asst. Gen. Counsel, F. T. C. was on the brief for respondent. Richard P. Taylor, Washington, D. C., with whom William E. Miller, Michael D. Campbell and Michael J. Malley, Washington, D. C., were on the brief for Universal Air Travel Plan American Airlines, Pan American World Airways, Inc. and Piedmond Airlines Inc., as ami-ci curiae urging reversal. Thomas J. O’Connell, Washington, D. C., Gen. Counsel, Board of Governors of the Federal Reserve System, Carl D. Lawson and Arnold P. Lav, Attys., Dept, of Justice filed a brief as amicus curiae. Before BAZELON, Chief Judge, MacKINNON, Circuit Judge and CHRISTENSEN, United States Senior District Judge for the District of Utah. Sitting by designation pursuant to 28 U.S.C. § 294(d). BAZELON, Chief Judge: The Federal Trade Commission Order under attack here requires petitioner to disclose in its advertising the statutory limitation on cardholders’ liability for unauthorized use of their credit cards. Petitioner’s central contention requires us to reconcile the 1968 Truth in Lending Act with its 1970 amendments. In addition, petitioner raises challenges concerning the breadth of the Commission’s Order and the adequacy of the Commission’s reasoning. Because we find petitioner’s contentions without merit, we affirm. I For $9 a year, petitioner Credit Card Service Corporation notified credit card companies that a subscriber’s cards had been lost or stolen. It also assisted subscribers in resolving billing errors and in obtaining new cards. Petitioner’s advertising emphasized that an individual is liable for the full amount charged to a lost or stolen card until the card’s issuer is notified. On August 24, 1971, the Commission issued a complaint alleging that such advertising had appeared after the effective date of the 1970 amendments to the Truth in Lending Act, which limit potential liability for a lost or stolen credit card to $50 per card. After a hearing, an Administrative Law Judge found that petitioner had engaged in “unfair methods of competition” and “unfair or deceptive acts or practices” in violation of Section 5 of the Federal Trade Commission Act. He ordered petitioner to cease and desist from representing that cardholders will have to pay for all goods and services obtained by unauthorized use of their cards. He also required that the following notice be contained in future advertising of petitioner’s service: IMPORTANT NOTICE Effective January 24, 1971, a Federal law provides that a cardholder has no liability for unauthorized use of his credit card unless all of the following four conditions are met. If the card issuing company (1) has notified you of your new limited liability, (2) has provided you with a pre-stamped envelope by which to notify them of a loss, (3) the card contains an approved method of identification, and (4) the use occurred before the card issuer is notified, then your liability is limited to $50 per card. The Commission affirmed the decision of the Administrative Law Judge. II Petitioner contends that the Truth in Lending Act as amended distinguishes between business credit cards and consumer (non-business) credit cards — only with the latter is cardholder liability for unauthorized use limited to $50. Petitioner maintains, therefore, that the Commission’s Order will foster “incomplete and . . . inaccurate disclosures,” because it disallows representations that cardholder liability is unlimited when a business card is lost or stolen. In order to evaluate this contention we must consider the statutory background. In 1968 Congress passed the Truth in Lending Act in order “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him. . ” The statute regulated the advertising of credit and required that the cost of credit be disclosed. Because it was a consumer protection statute, § 1603(1) exempted from the Act “credit transactions involving extensions of credit for business or commercial purposes . . . ” In 1970, Congress enacted Title V of Public Law 91-508 in order to regulate the credit card industry. This legislation prohibited the unsolicited distribution of credit cards, made the fraudulent use of such cards a federal crime, and, in § 1643, limited cardholder liability to $50 for the “unauthorized use of a credit card.” Although other options were considered, the 1970 legislation was passed as an amendment to the 1968 Truth in Lending Act. Petitioner maintains that because the credit card legislation is an amendment to the 1968 Act, it is subject to the § 1603(1) “business exception” in that Act. Therefore, petitioner concludes, when a credit card is issued or used primarily for business or commercial purposes, the $50 liability limit of § 1643 does not apply. Simply on the face of the statutory language, this argument is unpersuasive. The statutory limit on liability comes into play only when there is an “unauthorized use” of a credit card. Section 1603(1) exempts from the statute “credit transactions . . . for business . . . purposes.” In the case of unauthorized use, the only event that is arguably a “credit transaction” is the unauthorized use itself. Does this mean that unauthorized uses for business purposes are “credit transactions . for business . . . purposes” and therefore exempt from the Act? Surely Congress did not intend that when a card is wrongfully used for business purposes the cardholder is fully liable, but when it is wrongfully used for consumer purposes, the limit on liability is $50. Under that approach, if a thief used a stolen credit card to rent a getaway car, we would have to decide if the rental was for a “business purpose” in order to determine the extent of the cardholder’s liability. Indeed, as this example indicates, many unauthorized uses of credit cards are not ordinary “credit transactions” at all, but rather instances of fraud. In sum, given the absence of specific statutory language or legislative history, we cannot impute to Congress the unlikely intention that an “unauthorized use” could be a “credit transaction” for purposes of the § 1603(1) exemption. Petitioner apparently agrees, since it does not argue that the nature of the unauthorized use governs the issue of liability limitation. Petitioner contends instead that § 1603(1) exempts business credit cards from the $50 limit, regardless of whether the cards are wrongfully used for business or consumer purposes. Petitioner never explains why § 1603(1), which exempts certain “credit transactions” should apply to a particular class of credit cards. Of course, when an individual uses his card for business, that is a “credit transaction for business . . . purposes.” But in such a case, the liability limitation does not come into play because there has been no unauthorized use. If, nonetheless, we assume that using a card for business purposes exempts an individual from the liability limitation, how long does that exemption last? Until the next time the card is used for a non-business, purpose? Under this approach, liability would depend on how a card was last used before it was lost or stolen. Petitioner, of course, seeks to avoid this result. Its position seems to be that when a card is issued or used primarily for business, the card itself becomes “a credit transaction . . . for business . • . . purposes.” Thus the card is exempted from the statute by § 1603(1) even on those occasions when it is not used for business. We are unwilling to assume that a credit card can be transformed into a credit transaction in this fashion. Yet even if it could, petitioner’s approach would be fraught with difficulty. For if § 1603(1) exempts business cards from the $50 liability limit it also exempts them from the other provisions of the 1970 credit card legislation- — •§ 1603(1) provides exemption from the whole Act, not just part of it. This has disturbing consequences. As we have noted, the 1970 legislation makes the fraudulent use of credit cards a federal crime. Thus, under petitioner’s approach, the fraudulent use of business credit cards would not be a federal crime, while the fraudulent use of consumer credit cards would be. This unlikely result should not be attributed to Congress in the absence of specific statutory language or legislative history, neither of which are present here. Moreover, petitioner’s approach would create practical difficulties. A credit eard is often used for both business and personal transactions. Considerable litigation and uncertainty would result if courts had to determine if a card was used “primarily” for business. This determination would be necessary in order to decide whether the $50 liability limit applied and, what is worse, to decide whether a thief committed a federal offense when he fraudulently used a credit card. In sum, petitioner’s attempt to apply the “business exception” to the $50 liability limitation requires stretching the statutory language, is unsupported by legislative history, and has troublesome implications for other portions of the statute. We hold therefore that Congress never intended that the limitation on liability for “unauthorized use of a credit card” contained in § 1643 be affected by the fact that certain “credit transactions” are exempted from the statute by § 1603(1) All credit cards, whether used for business or consumer purposes, are covered by the $50 liability limit. Our holding is in keeping with the overall purpose of the Congressional enactments at issue here. While the 1968 Truth in Lending Act was designed to protect consumers, the 1970 legislation dealt with the credit card industry in general. The latter legislation may have been passed as an amendment to the former in order to apply the regulatory framework already in place for the Truth in Lending Act to the credit card field as well. Ill We turn now to petitioner’s remaining contentions. The Commission’s Order requires that an affirmative disclosure regarding liability for unauthorized use of credit cards be included in all advertising for petitioner’s “credit card registration service.” Petitioner maintains that because the' disclosure is irrelevant to some of its services, such as helping cardholders resolve billing disputes, the Order is overbroad- — it applies even when advertising relates solely to matters having nothing to do with liability for unauthorized use. We do not find the Commission’s Order overbroad, because we do not think it reaches as far as petitioner fears. As we have noted, the Order applies only to petitioner’s “credit card registration service.” The Commission’s Opinion described that service as one providing: as its principal service, notification on behalf of the subscriber to credit card companies of the fact that a subscriber’s credit cards have been lost or stolen. It also offers assistance to the subscriber in resolving billing errors of credit card companies and in obtaining new cards when the subscriber’s cards have been lost or stolen, or the subscriber’s address has changed. Thus the Commission saw petitioner’s “credit card registration service” as a bundle of subservices, including, in particular, notification of issuers for the purpose of limiting liability. If an advertisement for petitioner is solely concerned with services having no relation, direct or indirect, to such notification, the Order is not applicable and the affirmative disclosure need not be made. Such non-notification services are not “credit card registration services” within the meaning of the Commission’s Order. The Commission, in its brief to this Court, appears to concede this point. To lead the Order as applying to advertisements having nothing to do with cardholder liability would be to assume that the Commission required an irrelevant disclosure, an assumption we are unwilling to make. Petitioner’s final contention is that the Commission failed to support its affirmative disclosure requirement with an adequate statement of reasons. While the Commission’s opinion itself provides little justification for the disclosure requirement, the Commission adopted as its own the Administrative Law Judge’s initial decision. That decision provides an adequate basis for the finding that the required statement of the statutory limit on liability was necessary to prevent deception. The Commission’s Order is affirmed and enforced in its entirety. So ordered. . “Petitioner” is used throughout this opinion to refer collectively to petitioner Credit Card Service Corporation and petitioner John P. Ferry, its President. . Appendix 3-15. . Initial Decision, April 4, 1972, Supplemental Appendix 12, 22. When this case was tried before the Federal Trade Commission, the presiding officer held the title of Hearing Examiner. This title was changed to Administrative Law Judge on August 19, 1972. . Id. at 22-23. . Id. at 24. This notice was required for written material offering the sale of petitioner’s service to the public. A briefer notice was required for radio and television commercials. Id. . Final Order and Opinion of the Commission, Docket No. 8861, January 19, 1973, Supplemental Appendix 1-11. The Commission modified the Administrative Law Judge’s decision in one respect not relevant to this appeal — an order by the Law Judge requiring restitution to certain consumers was found not to be an appropriate remedy. Id. at 7-9. . Id. at 9. . 15 U.S.C. § 1601 et seq. . 15 U.S.C. § 1601. . 15 U.S.C. §§ 1661-1664. . 15 U.S.C. §§ 1636-1639. . 15 U.S.C. § 1603: This subchapter [The Truth in Lending Act] does not apply to the following: (1) Credit transactions involving extensions of credit for business or commercial purposes . . 84 Stat. 1114, 1126-1127; 15 U.S.C. §§ 1602, 1642-1644. . 15 U.S.C. § 1642: No credit card shall be issued except in response to a request or application therefor. This prohibition does not apply to the issuance of a credit card in renewal of, or in substitution for, an accepted credit card. . 15 U.S.C. § 1644: Whoever, in a transaction affecting interstate or foreign commerce, uses any counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card to obtain goods or services, or both, having a retail value aggregating $5,000 or more, shall be fined not more than $10,000 or imprisoned not more than five years, or both. . 15 U.S.C. § 1643: (a) A cardholder shall be liable for the unauthorized use of a credit card only if the card is an accepted credit card, the liability is not in excess of $50, the card issuer gives adequate notice to the cardholder of the potential liability, the card issuer has provided the cardholder with a self-addressed, prestamped notification to be mailed by the cardholder in the event of the loss or theft of the credit card, and the unauthorized use occurs before the cardholder has notified the card issuer that an unauthorized use of the credit card has occurred or may occur as the result of loss, theft, or otherwise. Notwithstanding the foregoing, no cardholder shall be liable for the unauthorized use of any credit card which was issued on or after the effective date of this section, and, after the expiration of twelve months following such effective date, no cardholder shall be liable for the unauthorized use of any credit card regardless of the date of its issuance, unless (1) the conditions of liability specified in the preceding sentence are met, and (2) the card issuer has provided a method whereby the user of such card can be identified as the person authorized to use it. For the purposes of this section, a cardholder notifies a card issuer by taking such steps as may be reasonably required in the ordinary course of business to provide the card issuer with the pertinent information whether or not any particular officer, employee, or agent of the card issuer does in fact receive such information. . Early legislative proposals would have placed credit card provisions under the Federal Deposit Insurance Act (see H.R. 12646, 90th Cong., 1st Sess.) and under Title 39 of the United States Code, which deals with the Postal Service (see H.R. 16542, 91st Cong., 2d Sess.) . See note 16, supra. . See note 12, supra. . Thus petitioner states the question as whether “business credit cards fall within the exemption provision [of § 1603(1)].” Reply Brief for Petitioner at 9. . Nor can the transformation be achieved by arguing that when a card is issued for business, that is a “credit transaction, involving extensions of credit for business. . . . ” Credit is extended when a card is used, not when it is issued. Moreover, even if mere issuance of a card could bring the § 1603(1) exemption into play, then cards issued for business would be exempt from all of the 1970 credit card legislation, with the unlikely and unworkable results discussed below. . See note 12, supra. . See note 15, supra. . In its brief petitioner states the question as whether the exemption applies to cards “issued or used for business or commercial purposes.” Brief for Petitioner at 6. We have added the word “primarily” to this formulation, since we do not understand petitioner to be contending' that a card used otherwise is a “business credit card.” See note 20, supra. If, however, petitioner is making such a contention its case is even weaker. . Similar problems would arise in determining whether it was legal to issue a credit card in the absence of a request or application, since such issuance is banned by 15 U. S.C. § 1642. See note 14, supra. . Petitioner concedes that the question is “not specifically addressed” in the legislative history of Public Law 91-508. Reply Brief for Petitioner at 5. As we note below, the general purposes of the 1968 and 1970 legislation imply that petitioner’s effort to apply § 1603(1) to § 1643 should be rejected. . The Board of Governors of the Federal Reserve System, in a clarifying amendment to Regulation Z issued pursuant to authority granted in the Truth in Lending Act (15 U. S.C. § 1604), has reached the same conclusion — “all cards, whether for business or consumer purposes, are covered ... by the $50 liability limit.” Brief for Board of Governors of the Federal Reserve System as Amicus Curiae; see 12 C.F.R. § 226.-13(a)(4) and (6). . Our conclusion is strengthened by the fact that § 1643 states that “a cardholder” shall not be liable for more than $50. See note 16, supra. The definitional sections of the Act provide that a “cardholder” could be a “corporation.” See 15 U.S.C. § 1602(m), (d), (c). (A “cardholder” is a “person”; a “person” can be an “organization”; an “organization” can be a “corporation”). Thus the liability limit would appear to apply even to corporate cardholders, which is contrary to the contention that there is a “business exception.” . See text accompanying note 9, supra. . See, e. g., the reference to “any . credit card” in 15 U.S.C. § 1644 reproduced at note 15, supra. . The Administrative Law Judge found that “it is quite obvious that the credit card provisions were inserted by Congress as an amendment to the Truth in Lending Act merely as a convenient place to insert such provisions for efficient administration by the Federal Reserve Board and the Federal Trade Commission.” Initial Decision, supra, Supplemental Appendix at 26. . Final Order, supra, Supplemental Appendix at 2. . Opinion of the Commission, supra, Supplemental Appendix at 5. See also Initial Decision, Supplemental Appendix at 21, Conclusion No. 1. . Brief for Respondent at 27, note 16 (“Petitioners refer to various ‘services’ which they offer or may offer in the future (Br. 18-19), and argue that the required disclosure is irrelevant to these ‘services.’ The Commission’s order, however, applies only to petitioners’ ‘credit card registration service’ (Supp.App. 2).”). . Final Order, supra, Supplemental Appendix at 1. . See Initial Decision, supra, Supplemental Appendix at 12-27, esp. 19. Despite petitioner’s objection, we do not find the affirmative disclosure, which tracks the statutory language, to be overly detailed or confusing. Question: What is the second general issue in the case, other than economic activity and regulation - misc economic regulation and benefits - other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government? 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_district	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Francis Edward KLIMAS, Appellant, v. James MABRY, Commissioner, Arkansas Department of Corrections, Appellee. No. 78-1663. United States Court of Appeals, Eighth Circuit. Submitted Feb. 12, 1979. Decided May 30, 1979. Rehearing and Rehearing En Banc Denied Aug. 13, 1979. See 603 F.2d 158. Richard F. Quiggle, Little Rock, Ark., for appellant. Neal Kirkpatrick, Asst. Atty. Gen., Little Rock, Ark., for appellee; Bill Clinton, Atty. Gen., and James E. Smedley, Asst. Atty. Gen., Little Rock, Ark., on brief. Before HEANEY and McMILLIAN, Circuit Judges, and SCHATZ, District Judge. ALBERT G. SCHATZ, United States District Judge, for the District of Nebraska, sitting by designation. HEANEY, Circuit Judge. Francis Edward Klimas, an Arkansas state prisoner, appeals from the order of the District Court dismissing his petition for a writ of habeas corpus. On appeal, Klimas contends that the writ should have been granted because his cross-examination of a key prosecution witness at his state trial was impermissibly restricted, and because records of seven Missouri convictions, which were silent as to Klimas’s representation by counsel, were considered by the jury in the enhancement of his sentence under the Arkansas Habitual Criminal Act, Ark. Stat.Ann. § 43-2328. We reverse and remand. Klimas was convicted of burglary and grand larceny, in violation of Ark.Stat.Ann. §§ 41-1003 and 41-3907 (repealed 1976), in Jefferson County Circuit Court on April 23, 1975. After the verdicts of guilty were returned, the second part of the information, charging Klimas with being a habitual criminal under Ark.Stat.Ann. § 43-2328, was read to the jury. The prosecution then offered into evidence certified copies of records from the Department of Correction, Missouri State Penitentiary, which indicated that Klimas had been previously convicted of seven felonies in Missouri. The defense objected to the introduction of this evidence on the ground that the records were silent as to whether Klimas had been represented by counsel. This objection was overruled. The prosecution also introduced certified copies of records from the Arkansas State Penitentiary, which indicated that Klimas had pled guilty to three burglary-grand larceny transactions, occurring on February 12, 21 and 26 of 1972, for which he received three concurrent, five-year sentences. No objection to the introduction of this evidence was made. Arguments on the habitual criminal charge were made to the jury by both the prosecution and the defense. The jury was then instructed and sent to deliberate with four verdict forms. The first form provided that if the jury found Klimas guilty of having been convicted of no prior felony offense, his punishment should be fixed at not less than one nor more than twenty-one years for grand larceny, and not less than two nor more than twenty-one years for burglary. The second form provided that if the jury found him guilty of having been convicted of one prior felony offense, his punishment should be fixed at not less than two nor more than twenty-one years for grand larceny, and not less than three nor more than twenty-one years for burglary. The third form provided that if he was found guilty of having been convicted of two prior felony offenses, his punishment for grand larceny should be fixed at not less than four nor more than twenty-one years for grand larceny, and not less than five nor more than twenty-one years for burglary. The fourth form provided that if he was found guilty of having been convicted of three prior felony offenses, his punishment should be fixed at not less than twenty-one nor more than thirty-one and one-half years for grand larceny, and the same for the crime of burglary. The jury found that Klimas had been convicted of three prior felonies and fixed his sentence at thirty-one and one-half years for grand larceny, and thirty-one and one-half years for burglary. The trial judge ordered that Klimas serve these sentences consecutively. Klimas appealed to the Arkansas Supreme Court, raising, among other grounds, the two grounds for reversal urged here. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976), cert. denied, 429 U.S. 846, 97 5. Ct. 128, 50 L.Ed.2d 117 (1976). The Arkansas Supreme Court held that since the records of Klimas’s Missouri convictions were silent concerning his representation by counsel, they were inadmissible in the sentencing enhancement proceeding under Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The Court reversed the judgment and remanded the case for a new trial unless the Arkansas Attorney General, within seventeen calendar days, accepted a reduction of Klimas’s sentence to three years, the minimum sentence which he could have received for the burglary and grand larceny charges. 534 S.W.2d at 207. On rehearing, the Court modified its original order and imposed a sentence of forty-two years, twenty-one years for each offense. The Court reasoned that since the six prior Arkansas convictions (three burglary-larceny transactions) were unchallenged by Klimas in the trial court, the minimum sentence which Klimas could have received would have been twenty-one years, making a total of forty-two years for the two offenses. The Court concluded that any possible prejudice to Klimas would be removed by reduction of his sentence to forty-two years. Id. Klimas’s other grounds for the reversal of his conviction were rejected. The State subsequently agreed to this reduction, sentencing Klimas, in effect, to forty-two years imprisonment for the commission of four petty burglaries, three of which occurred within a fourteen-day period and for which he had previously served one five-year sentence. Klimas then brought this habeas corpus action in federal District Court, raising the same issues which were raised in his state appeal and which he raises now. A hearing was held in the District Court on May 10, 1978. At that hearing, the District Court expressed concern that Klimas had received such a severe sentence for this series of petty crimes. The court believed that it was without jurisdiction, however, both because Klimas’s petition failed to sufficiently allege a violation of a constitutional right and because the United States Supreme Court denied certiorari in his appeal from the decision of the Arkansas Supreme Court. The District Court dismissed Kli-mas’s petition for lack of jurisdiction, and he now appeals. To the extent that the District Court believed that it was without jurisdiction to consider Klimas’s petition because of the United States Supreme Court’s denial of certiorari, it was in error. If, in exhausting state remedies, a state prisoner unsuccessfully seeks Supreme Court review, no weight is to be given to this denial when considering the prisoner’s later petition for habeas corpus. See 28 U.S.C. § 2244(c); Brown v. Allen, 344 U.S. 443, 488-497, 73 S.Ct. 397, 97 L.Ed. 469 (1953); 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 114264 at 631 (1978). We, therefore, turn to the more difficult question presented by this petition: whether Klimas’s pro se petition, liberally construed, sufficiently states the deprivation of a constitutional right which would justify the granting of federal habeas corpus relief. See 28 U.S.C. § 2254; Louis Serna v. Donald Wyrick, 594 F.2d 869 (8th Cir., 1979); DeBerry v. Wolff, 513 F.2d 1336, 1338 (8th Cir. 1975). We agree with the District Court that any error which the state trial court committed in restricting the cross-examination of Arlie Weeks, Klimas’s accomplice and the prosecution’s principal witness against him, did not rise to the level of the deprivation of a constitutional right. Kli-mas’s counsel, in an apparent attempt to show that Weeks expected assistance from the prosecuting attorney in obtaining parole from his current incarceration in exchange for his testimony, asked Weeks whether he was aware that the recommendation of the prosecuting attorney is required before parole is granted in Arkansas. The prosecutor objected to the question; but before the court ruled on the objection, Weeks answered in the negative. The court then sustained the objection. Failure to allow effective cross-examination aimed at eliciting the bias of a prosecution witness can rise to the level of a constitutional violation. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Although the objection here was probably erroneously sustained, since Weeks did answer the question prior to the court’s ruling and since no further attempts were made by Klimas’s counsel to elicit Weeks’ possible bias, we cannot say that this error by the state trial court constituted a violation of Klimas’s constitutional rights which would justify the granting of habeas corpus relief. We find, however, that, under the particular facts of this case, the failure of the Arkansas Supreme Court to follow the sentencing procedure required by the Arkansas Habitual Criminal Act, Ark.Stat.Ann. § 41-1005 or § 43-2330.1, in the resentencing of Klimas after the rehearing of his case resulted in a deprivation of due process which justifies the granting of habeas corpus relief. Generally, the failure of a state court to comply with the provisions of state law in its criminal trials is purely a matter of local concern and is not reviewable by federal courts under the due process clause of the federal Constitution. See Buchalter v. New York, 319 U.S. 427, 429-430, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943); Cox v. Hutto, 589 F.2d 394 at 395 (8th Cir., 1979). The failure of a state to afford a particular defendant the benefit of established procedures under state law may, however, result in a denial of due process when the error made by the state court renders the state proceedings so fundamentally unfair or so fundamentally deficient that they are inconsistent with the rudimentary demands of fair procedure. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Buchalter v. New York, supra, 319 U.S. at 429-430, 63 S.Ct. 1129; DeBerry v. Wolff, supra at 1338; Shirley v. State of N. C., 528 F.2d 819, 822 (4th Cir. 1975). Under the Arkansas Habitual Criminal Act, an individual who is charged with being a habitual criminal is tried for that offense after a verdict of guilty has been returned for the primary felony charge on which he has just been tried. Ark.Stat. Ann. §§ 41-1005, 43-2330.1. Evidence pertaining to the defendant’s previous felony convictions is submitted to the jury and the defendant has the right to controvert such evidence or to submit other evidence in his support. Id. The jury must then retire; and only upon its finding that the defendant has been convicted of prior felonies may a particular enhanced sentence be imposed. Id. Throughout this procedure, the State bears the burden of proving the prior convictions of the defendant, McConahay v. State, 257 Ark. 328, 516 S.W.2d 887, 889 (1974), and the weighing of the evidence and the ultimate factual finding that the defendant is a habitual criminal are for the jury alone. Id. Where a state has provided, by statute, that a habitual criminal charge is to be tried to a jury, we do not believe that the state can abrogate that right in a particular case without violating the notions of fundamental fairness inherent in the due process clause. Where a right to trial by jury has been established under state law, the state cannot deny a particular accused that right without violating even the minimal standards of the due process clause. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Berrier v. Egeler, 583 F.2d 515, 522 (6th Cir. 1978); Wolfs v. Britton, 509 F.2d 304 (8th Cir. 1975); Shirley v. State of N. C., supra; Braley v. Gladden, 403 F.2d 858, 860-861 (9th Cir. 1968). While a habitual criminal proceeding is commonly thought of as a sentence-enhancement proceeding, rather than as a trial for a substantive offense, we believe that the highly penal nature of the Arkansas Habitual Criminal Act requires that the statutory requirements for conviction under that Act be strictly construed. See Cox v. Hutto, supra; Parker v. State, 258 Ark. 880, 529 S.W.2d 860, 863 (1975); McConahay v. State, supra, 516 S.W.2d at 889; Higgens v. State, 235 Ark. 153, 357 S.W.2d 499, 501 (1962). After the Arkansas Supreme Court found that the evidence of Klimas’s seven Missouri convictions were erroneously submitted to the jury, the Court did not remand his case for retrial on the habitual criminal charge. Instead, the court reimposed a sentence under the Habitual Criminal Act on the theory that the evidence of his prior Arkansas convictions, which was also submitted to the jury, could have supported the jury’s finding that he had three prior convictions and, thus, was subject to the harshest penalty available under the habitual criminal law which was in effect at the time of Klimas’s trial. It is impossible to tell from the jury’s verdict, however, which three prior offenses were used by the jury to support its conviction on the habitual criminal charge. There is no way we can assume that the jury found Klimas to be guilty of having been convicted of the prior Arkansas offenses since any three of the Missouri convictions alone would have supported the findings of the jury and the sentence which is imposed. The State, citing Rose v. Hodges, 423 U.S. 19, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975), argues that since the Arkansas Supreme Court modified Klimas’s sentence without affording him a redetermination by jury of the habitual criminal charge, we must assume that such an action was authorized by state law. We do not believe that Rose stands for so broad a proposition. In Rose, whether or not the sentences imposed upon respondents were subject to commutation by the Governor of Tennessee was a disputed question of state law, resolved in favor of commutation by the Tennessee courts. We do not believe that Rose stands for the proposition that where rights under state law are clear, the denial of those rights to a particular accused by the state courts is insulated from federal habeas corpus review. As stated by the Ninth Circuit in Braley v. Gladden, supra : Emphasizing that tfie jury trial in this case arose solely from * * * the Oregon constitution, the appellee insists that the interpretation by Oregon courts as to that which is required by Oregon’s constitution is firmly controlling. * * * Unquestionably, the state courts should have the primary responsibility for determining the application of the state constitutions; however, this principle does not diminish our responsibility to insure that state constitutional interpretations are consistent with the federal Constitution. Id. at 860. See also Ellingburg v. Lockhart, 397 F.Supp. 771, 776 (E.D.Ark.1975). The question which remains is whether the state court’s failure to afford Klimas a redetermination of the habitual criminal charge by jury was, in any event, harmless error since Klimas did not challenge the existence of the Arkansas convictions at the state trial or on appeal. The Arkansas Supreme Court held that since, in view of the unchallenged Arkansas convictions, the minimum sentence which Klimas could have received under § 43-2328(3) would have been twenty-one years on each charge, the reduction of his sentence from sixty-three years to forty-two years would remove any possible prejudice to him. Retrial of a criminal defendant on a habitual criminal charge may be a' futile gesture where evidence of convictions, which was properly submitted to the jury, is unchallenged by the defendant. See, e. g., Roach v. State, 255 Ark. 773, 503 S.W.2d 467, 471 (1973). In this case, however, Klimas’s right to a retrial of the habitual offender charge is of importance since the provisions of the Arkansas Habitual Criminal Act were changed between the time of his state court' trial and the time of the modification of his sentence by the Arkansas Supreme Court. Under Ark.Stat. Ann. § 43-2328(3), in effect at the time of his trial, Klimas’s six Arkansas convictions (three burglary-larceny transactions) would, as the Arkansas Supreme Court indicated, require a sentence of at least twenty-one years on each of his current charges. Under the new provisions of the Habitual Criminal Act, Ark.Stat.Ann. § 41-1001 (effective January 1,1976), each of the Arkansas burglary-larceny transactions, of which Klimas had previously been convicted, would be considered only as a single felony conviction, giving him a total of three prior felony convictions. With this record, under the new law, he would appear to be subject to a sentence of not less than five, nor more than thirty, years on each of his current charges. Since neither the briefs filed by the parties nor our questions at oral argument resolved whether the old or new law would govern a retrial of the habitual criminal charge and the penalty to be assessed thereunder, we cannot say, as a matter of law, that the failure to afford Klimas a jury redetermination of this charge was in no way prejudicial to him. The order dismissing Klimas’s petition is vacated, and the case remanded to the District Court. Upon remand, the District Court shall hold the petition in abeyance in order to afford the State of Arkansas the opportunity to resentence Klimas by jury in accordance with Arkansas law. If the State fails to initiate a resentencing procedure in Arkansas state court within a reasonable time, the District Court shall grant the writ. . Klimas’s petition was brought under 28 U.S.C. § 2254. . Evidence introduced at Klimas’s trial indicated that Klimas and an accomplice, Arlie Weeks, burglarized the Dixie Wood Preserving Company plant near Pine Bluff, Arkansas, and stole a check made out to the Potlatch Corporation, ten walkie-talkie radios and coins from two soft-drink dispensing machines. Weeks testified that the men obtained approximately $58.00 from the machines, which they split between them. . Ark.Stat.Ann. § 43-2328 provides: Second or subsequent convictions — Sentence. — Any person convicted of an offense, which is punishable by imprisonment in the penitentiary, who shall subsequently be convicted of another such offense, shall be punished as follows: (1) If the second offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one (1) year more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for this offense, unless the maximum sentence is less than the minimum sentence plus one (1) year, in which case the longer term shall govern. (2) If the third offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than three (3) years more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for the offense, unless the maximum sentence is less than the minimum sentence plus three (3) years, in which case the longer term shall govern. (3) If the fourth or subsequent offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for the fourth or subsequent offense for a determinate term not less than the maximum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than one and one half (IV2) times the maximum sentence provided by law for a first conviction; provided, that any person convicted of a fourth or subsequent offense shall be sentenced to imprisonment for not less than five (5) years. . These convictions, dating back to 1951, were as follows: grand larceny, sentence — two years, time served — one year; burglary and stealing, sentence — two consecutive two-year terms, time served — two and one-half years; three counts of stealing, sentence — three four-year concurrent terms, time served — more than two years; two counts of robbery, sentence— two concurrent eight-year terms, time served— four and one-half years. . The February 12, 1972, crime involved theft of two television sets, some clothing and a shotgun from a house after entering through an unlocked garage door. The February 21, 1972, crime involved the theft of cigarettes, an undisclosed amount of money and personal property from an open truck. The February 26, 1972, crime involved the theft of approximately $150.00 from a tavern’s vending machines. . The District Court stated: THE COURT: I wish I could find some reason to give this petition consideration. It seems to me like its almost a tentative action taken by the state court on the charge of this nature — forty-two years under Arkansas law. But this Court has no right to disturb the decision of the state court. ****** THE COURT: Well, I simply don’t know if this Court can do anything about it on the charges you bring. The record on which you rely is that the state court sentenced you under the provisions of law. The Supreme Court of Arkansas heard — was in the process of remanding it for you to have a reduction to three years. What was the charge that you were being tried for here? [MR. KLIMAS]: Burglary and larceny, your Honor. THE COURT: Were all cases that you’ve been involved burglary and larceny? [MR. KLIMAS]: Yes, sir. THE COURT: And you just contend that the Court was in error in presenting it to the jury wherein you were convicted. Unless there’s some showing of [a] constitutional right being violated, this Court just doesn’t have any jurisdiction over the matter. * * Then you say that the Court was in error contrary to federal law in not reversing the original conviction, with orders to grant a new trial. Well, what you say here is the Supreme Court of Arkansas was wrong, when on a rehearing it modified its previous decision. And that certainly is not a constitutional question here. I have a great deal of feeling about this because of the sentence. I know the state court probably was trying to carry out the state law and I would suspect that the Supreme Court had in mind that that was a terrible sentence to impose upon .you, and it was looking for some reason to do something about it. * * * I wish I could suggest some action for you to take to try to do something about this rather severe sentence under Arkansas law. * * ****** THE COURT: Well, I sure would make a pitch before the Parole Board, is about all I can suggest to you. I am sorry I can’t do anything for you under the circumstances. An order will be entered accordingly dismissing the petition for lack of jurisdiction. 1 hope you will find another reason that you can get some relief anyway. [MR. KLIMAS]: Thank you, your Honor. Transcript of Proceedings before the Honorable Oren Harris, United States Senior District Judge, May 10, 1978, at 6-9. . The State conceded below that Klimas has exhausted his state remedies, and no claim to the contrary is made in the briefs before us. In any event, the federal rule that a state prisoner’s state-court remedies must be exhausted before federal habeas corpus relief will lie is based on principles of comity, rather than the absence of federal power. Cage v. Auger, 514 F.2d 1231, 1232 (8th Cir. 1975); Smith v. Wolff, 506 F.2d 556 (8th Cir. 1974). Where it is clear that the state courts have had an opportunity to correct the constitutional error, there has been a sufficient vindication of the state’s interests and the federal courts should proceed to entertain the § 2254 proceeding. Cage v. Auger, supra at 1232-1233. We are satisfied that the substance of Klimas’s claims, concerning the restriction of the cross-examination of his accomplice and the imposition of his forty-two year sentence by the Arkansas Supreme Court, have been fairly considered by the Arkansas courts and that no purpose would be served by their presentation once again to the state courts. See Wolfs v. Britton, 509 F.2d 304, 308 (8th Cir. 1975). . At the time of Klimas’s trial on April 23, 1975, trial of habitual criminal charges was governed by Ark.Stat.Ann. § 43-2330.1. An extensive revision of the Arkansas Criminal Code was passed by the Arkansas legislature in 1975 and became effective on January 1, 1976. Under the new Criminal Code, the procedure for imposing an extended sentence on a person found to be a habitual offender is set forth in Ark.Stat.Ann. § 41-1005. This section is taken, almost verbatim, from the previous section. Although the new Criminal Code did not explicitly repeal § 43-2330.1, the “Compiler’s Notes” following § 43-2330.1 state that “[t]his section, or portions thereof, may have been impliedly repealed by the Criminal Code of 1976.” See Notes by the Arkansas Statute Revision Commission, 4A Arkansas Statutes 1947 Annotated, at p. 316. . The definition of a habitual offender and the terms of imprisonment which may be imposed upon habitual offenders are found in Ark.Stat. Ann. § 41-1001 (effective January 1, 1976). The prior provision, which was in effect at the time of Klimas’s trial, is found in Ark.Stat.Ann. § 43-2328. . This case is, therefore, distinguished from those cases where all of the prior convictions submitted to the jury were necessary to support the jury’s findings. See, e. g., Wilburn v. State, 253 Ark. 608, 487 S.W.2d 600 (1972) (evidence of two prior felony convictions submitted to the jury; defendant sentenced by the jury as a “third offender”). . The fact that an accused does not submit evidence contradicting that submitted by the prosecution does not, of course, eliminate the accused’s right to a jury trial. Where a statutory right to trial by jury exists, that right must be honored, “regardless of the heinousness of the crime charged [or] the apparent guilt of the offender * * Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). See also Braley v. Gladden, 403 F.2d 858, 860-861 (9th Cir. 1968). . In Cox v. Hutto, 589 F.2d 394 (8th Cir., 1979), we held that the failure of the state trial judge to inquire into Cox’s knowledge of and consent to a stipulation of his prior convictions, filed by his counsel in a habitual criminal proceeding, deprived him of his constitutional rights. We remanded the case to the District Court for a determination of whether Cox sustained any prejudice from the defective stipulation of prior convictions. Such prejudice would be presumed unless the state could establish that it possessed evidence at the time of trial establishing the three prior convictions necessary to support Cox’s sentence. Cox’s right to a redetermination by jury of his habitual criminal conviction was not raised in that case and, thus, we did not address that issue. . Ark.Stat.Ann. § 41-1001 states: Sentence to imprisonment for felony — Extended term for habitual offender. — (1) A defendant who is convicted of a felony and who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies, may be sentenced to an extended term of imprisonment as follows: (a) not less than ten (10) years nor more than fifty (50) years, or life, if the conviction is of a class A felony; (b) not less than five (5) years nor more than thirty (30) years, if the conviction is of a class B felony; (c) not less than three (3) years nor more than fifteen (15) years, if the conviction is of a class C felony; (d) not exceeding seven (7) years, if the conviction is of a class D felony; (e) upon conviction of an unclassified felony punishable by less than life imprisonment, not less than three (3) years more than the minimum sentence for the unclassified offense nor more than five (5) years more than the maximum sentence for the unclassified offense; (f) upon conviction of an unclassified felony punishable by life imprisonment, not less than ten (10) years nor more than fifty (50) years, or life. # * # # # # (3) For the purpose of determining whether a defendant has previously been convicted or found guilty of two [2] or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt. A conviction or finding of guilt of an offense that was a felony under the law in effect prior to the effective date [January 1, 1976] of this Code shall be considered a previous felony conviction or finding of guilt. Under the new Arkansas Criminal Code, burglary is a class B felony, and larceny is a class B or C felony. See Ark.Stat.Ann. §§ 41-2002, 41-2203. Consideration of a burglary and the felony that was the object of the burglary as a single felony conviction for the purposes of the Habitual Criminal Act was instituted to prevent the precise situation which we find here: Although prior to the Code’s enactment most circuit judges treated convictions for burglary and grand larceny as a single prior conviction for purposes of habitual offender sentencing, a few apparently considered such a disposition to constitute two convictions. To achieve some parity of treatment in calculating the number of prior convictions, subsection (3) consolidates a burglary and the offense that was its object into a single felony conviction for habitual offender purposes. Arkansas Statute Revision Commission, “Commentary," 4 Arkansas Statutes 1947 Annotated, at p. 123. . Section 41-102 of the Arkansas Criminal Code of 1975 provides: Application of provisions. — (1) The provisions of this Code * * * shall govern the prosecution for any offense defined by this Code and committed after the effective date [January 1, 1976] hereof. (2) Unless otherwise expressly provided, the provisions of this Code shall govern the prosecution for any offense defined by a statute not part of this Code and committed after the effective date hereof. (3) The provisions of this Code do not apply to the prosecution for any offense committed prior to the effective date of this Code. Such an offense shall be construed and punished in accordance with the law existing at the time of the commission of the offense. (4) A defendant in a criminal prosecution for an offense committed prior to the effective date of this Code may elect to have the construction and application of any defense to such prosecution governed by the provisions of this Code. * * * (5) When all or part of a statute defining a criminal offense is amended or repealed, the statute or part thereof so amended or repealed shall remain in force for the purpose of authorizing the prosecution, conviction and punishment of a person committing an offense under the statute or part thereof pri- or to the effective date of the amending or repealing act. It is unclear, under this section, whether a charge of habitual criminality is an “offense” and, if so, whether its “commission” in a case such as this would be at the time of the commission of the latest underlying felony (here, prior to the effective date of the Code) or at the time that an individual’s status as a habitual criminal is determined (here, at the time of the retrial of the habitual criminal charge). It is also unclear whether the fact that burglary and the larceny which was its object are considered to be a single offense under the new provisions of the Habitual Criminal Act could be argued to the jury in a retrial of Klimas under the old law, as a mitigation of his record and the degree of habitual criminality which the jury might find. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_appel1_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 appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". ANTIETAM HOTEL CORPORATION v. COMMISSIONER OF INTERNAL REVENUE. No. 4836. Circuit Court of Appeals, Fourth Circuit. Nov. 10, 1941. John F. Greaney, of Washington, D. C. (Frank J. Albus, of Washington, D. C., on the brief), for petitioner. Warren F. Wattles, of Washington, D. C., Atty., Department of Justice (Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch, Gerald L. Wallace, and Edward First, Sp. Assts. to Atty. Gen., on the brief), for respondent. Before DOBIE and NORTHCOTT, Circuit Judges, and WAY, District Judge. DOBIE, Circuit Judge. This is an appeal by the Antietam Hotel Corporation (hereinafter called petitioner) from , a decision of the Board of Tax Appeals (hereinafter called the Board). The facts in this case, about which there seems to be little or no dispute, are thus set out in the opinion of the Board: “The petitioner herein is a corporation organized under the laws of Maryland with its offices and principal place of business at the Hotel Alexander, Hagerstown, Maryland. “On October 1, 1927 the petitioner’s predecessor, the Alexander Hotel Corp., issued first mortgage 6-%% ten year gold bonds secured by a deed of trust covering the property of that corporation. The petitioner, subsequent to October 1, 1927, but prior to March S, 1934, acquired the property of the Alexander Hotel Corp., subject to the mortgage securing the bonds. “As of July 17, 1933, a deposit agreement was entered into between the Antietam Hotel Corporation and the holders of the first mortgage 6-%% ten year gold bonds of the Alexander Hotel Corporation, and the Equitable Trust Co. named as the depository. That deposit agreement sets forth that defaults occurred in the sinking fund payment due on September 20, 1931, March 20, 1932, September 20, 1932 and March 20, 1933, and that the company has not earned and was unable to pay the interest on the bonds payable April 1, 1933. On March 1, 1934 the Circuit Court of Baltimore City authorized the successor trustee to comply with the requests made upon it in connection with the deposit agreement and to refrain from pursuing any remedies provided for under the terms of the original indenture of October 1, 1927, on account of the existing defaults. “On March 5, 1934 a supplementary indenture was entered into by and between the Antietam Hotel Corporation and the Baltimore Trust Co., the successor to the original trustee. Under the terms of this supplemental indenture it was agreed that the maturity date of the bonds outstanding in the amount of $324,000 should be extended to the first day of October 1942. It was further agreed that the interest rate on the bonds should be reduced from 6-%% per annum to 4% per annum beginning with the installment of interest payable on the first day of April 1933. “Section 3 of the amended sinking fund instrument provides as follows: “That Article IV, Section 1, of said Indenture of October 1, 1927 shall be amended by substituting for the language of said Section 1 of Article IV of said indenture as the same now appears the following: “The Antietam Hotel Corporation covenants that as a sinking fund for the payment and retirement of bonds from time to time outstanding hereunder, it will pay to The Baltimore Trust Company as Successor Trustee, commencing on March 20, 1934, and annually on each March 20th thereafter until March 20, 1942, 60% of its net current earnings for the preceding calendar year remaining after the payment of all operating expenses, including insurance, repairs, maintenance, all current taxes (as distinguished from any taxes in default), interest on the First Mortgage Bonds at the rate of 4% per annum, and also after an allowance not in excess of $6,000 (if necessary) per annum for ordinary replacements; provided, however, that from the first net current earnings the Corporation shall retain and maintain as permanent working capital the sum of $10,000, which said sum shall be always restored before determining the net current earnings under this Section. The Antietam Hotel Corporation shall not be permitted to surrender to the Trustee in lieu of payment of the sinking fund as a compliance by it with its obligations hereunder any bonds or coupons secured under the aforesaid Indenture of October 1, 1927 as modified and extended hereby. “Section 4, ‘operation of Sinking Fund’ provides that the sinking fund shall be applied the same as in the original indenture, except that, inasmuch as the sinking fund is payable, as above provided, annually instead of semi-annually, the application shall be made by the successor trustee between the 1st and 15th days of April in each year, beginning with April 1934, in which there are funds in the sinking fund applicable to the retirement of bonds of that issue. “Under Section 6 of the supplemental indenture, 'Assumption of Bonds,’ the Antietam Hotel Corporation expressly assumed and covenanted to pay the $524,500 par value of first mortgage 6-/2% ten year gold bonds of the Alexander Hotel Corporation together with all accumulated interest and all interest to accumulate thereon as modified and extended by this supplemental agreement and by 'the deposit agreement of July 17, 1933. “For the calendar year 1936 60% of the net earnings of the petitioner computed in accordance with the provisions of Section 1 of Article. 4 of the supplemental indenture was $4,642.09. This amount was duly paid over to the trustee on March 20, 1937. Petitioner, in its income tax return filed by it for the year 1936 claimed credit thereon in the computation of surtax and undistributed profits in the amount of $4,-642.09. For the calendar year 1937 60% of the net earnings, computed on a like basis, was $13,527.32 which was paid over to the trustee on March 18, 1938. Petitioner claimed credit therefor in its 1937 income tax return. - “The corporation made no entry on its books between January and March of 1937 or 1938 relative to the sinking fund payments. The balance sheet of the petitioner for the year ended December 31, 1936 carried a notation thereon as follows: “ ‘Sinking Fund payment due March 20, 1937, $4,642.09.’ and for the year ended December 31, 1937: “ ‘Sinking Fund payment due March 20, 1938, $13,527.32.’ “The percentage of net earnings of petitioner as defined in Section 3 of the Supplemental Indenture, supra, was held in the general bank account of the corporation until March of the years following. “On March 19,- 1937 petitioner wrote to the Union Trust Co. of Baltimore forwarding a check in the amount of $4,642.09 and enclosing a copy of the preliminary schedule disclosing how that amount was reached. On March 16, 1938 petitioner sent a check for $13,527.32 with another schedule. “Since the organization of the petitioner,' James Mullen of Richmond, Virginia, has been associated with it either as assistant secretary or acting as secretary and its counsel; and during the years 1936 and 1937 he attended the Board meetings and advised the executive committee. He advised them that the money must be set aside as of December 31st of each year and must be held separate and not used for any purpose other than the payment to the trustee. He advised them that it constituted a trust fund which they could not use and that they themselves would become personally liable if they permitted it to be used.” § 26(c) of the Revenue Act of 1936, 49 Stat. 1648, 26 U.S.C.A. Int.Rev.Acts, page 836, is controlling here. The apposite part of the Statute reads: “§ 26. Credits of Corporations “In the case of a corporation the following credits shall be allowed to the extent provided in the various sections imposing tax— * * * * * * “(c) Contracts Restricting Payment of Dividends * * * * * * “(2) Disposition of profits of taxable year. An amount equal to the portion of the earnings and profits of the taxable year which is required (by a provision of a written contract executed by the corporation prior to May 1, 1936, which provision expressly deals with the disposition of earnings and profits of the taxable year) to be paid within the taxable year in discharge of a debt, or to be irrevocably set aside within the taxable year for the discharge of a debt; to the extent that such amount has been so paid or set aside. For the purposes of this paragraph, a requirement to pay or set aside an amount equal to a percentage of earnings and profits shall be considered a requirement to pay or set aside such percentage of earnings and profits. As used in this paragraph, the word ‘debt’ does not include a debt incurred after April 30, 1936.” It will thus be seen, in order that this credit may be claimed, the Statute requires: (1) that there be a written contract executed prior to May 1, 1936; (2) that this contract contain a provision expressly dealing with the disposition of the earnings and profits of the taxable year; (3) that this contract require a portion of the earnings and profits of the taxable year (a) to be paid within the taxable year in discharge of a debt, or (b) to be irrevocably set aside within the taxable year for the discharge of a debt; and, finally, (4) when all of the above conditions have been met, then the credit may be given to the extent that such amount (a) has been paid, or (b) has been irrevocably set aside. It seems to be conceded that both the first. and second requirements as set out above have been fully met. We do not think, however, that the third requirement has been met and, since this is a condition precedent to the claiming of the credit in question, we believe that the decision of the Board denying the credit, must be affirmed. Petitioner contends very strenuously that the applicable law of Maryland treats this indenture as an express trust, and that, accordingly, the funds covered by the indenture cannot be diverted from the ultimate use set out in the indenture without the violation of a duty under the trust. Consequently, petitioner claims that there was in this case an irrevocable setting aside of the funds by operation of law. It is clear from the record, however, that these funds were never actually segregated from the taxpayer’s other moneys during the taxable years in question. Indeed, the evidence discloses that during the taxable years in question, the funds actually remained in petitioner’s general bank account, and it is quite clear that actual payments to the Trustee were not made during the taxable years but were, in each instance, paid by check during March of the year after the taxable year. Thus, there was no definitive act within the taxable year which divested the corporation’s control over the funds. In this connection, U. S. Treasury Regulation 94, Art. 26(c) (2) provides: “Reg. 94, Art. 26-2 (c) Disposition of Profits of Taxable Years. — Under the provisions of section 26 (c) (2) a corporation is allowed a credit in an amount equal to that portion of the earnings and profits of the taxable year which by the terms of a written contract executed by the corporation prior to May 1, 1936, and expressly dealing with the disposition of the earnings and profits of the taxable year, it is required within the taxable year to pay in, or irrevocably to set aside for, the discharge of a debt incurred on or before April 30, 1936. The credit is limited to that amount which is actually so paid or irrevocably set aside during the taxable year pursuant to the requirements of such a contract. “Only a contractual provision which expressly deals with the disposition of the earnings and profits of the taxable year shall be recognized as a basis for the credit provided in section 26 (c) (2). A corporation having outstanding bonds is not entitled to a credit under a provision merely requiring it, for example, (1) to retire annually a certain percentage or amount of such bonds, (2) to maintain a sinking fund sufficient to retire all or a certain percentage of such bonds at maturity, (3) to pay into a sinking fund for the retirement of such bonds a specified amount per thousand feet of timber cut or per ton of coal mined, or (4) to pay into a sinking fund for the retirement of such bonds an amount equal to a certain percentage of gross sales or gross income. Such provisions do not expressly deal with the disposition of earnings and profits of the taxable year. A contractual provision, however, shall not be considered as not expressly dealing with the disposition of earnings and profits of the taxable year merely because it deals with such earnings and profits in terms of ‘net income,’ ‘net earnings,’ or ‘net profits.’ ” Thus, it will be noted that the Treasury Regulation restricts the credit to amounts actually set aside within the taxable year. Although such an interpretation is not binding on this Court, it is highly persuasive at least. See Griswold, A Summary of the Regulations Problem, 1941, 54 Harv. L.Rev. 398; Brown, Regulations, Reenactment and the Revenue Acts, 1941, 54 Harv. L.Rev. 377; Feller, Addendum to the Regulations Problem, 1941, 54 Harv.L.Rev. 1311; Griswold, Postscriptum, 1941, 54 Harv.L.Rev. 1323. We have indicated above (requirement 3) that as an indispensable condition precedent to the allowance of the credit, the contract itself must in terms require that a portion of the earnings and profits of the taxable year be either paid within the taxable year or else be irrevocably set aside within the taxable year. The indenture in the instant case does not so require; for the indenture expressly stipulates that the petitioner “will pay to the Baltimore Trust Company as Successor Trustee, commencing on March 20, 1934, and annually on each March 20th thereafter, until March 20, 1942, 60% of its net current earnings for the preceding calendar year.” (Italics ours.) It will thus be seen that the contract in question does not require any payment or setting aside of earnings during the taxable year; for it clearly stipulates for payment on March 20th of the succeeding year of net current earnings for the preceding calendar year. Thus the contract contains no provision whatever for any payment or setting aside of earnings during the taxable year, but only for a payment of 60% of the earnings at a date more than two and one-half months after the end of the taxable year. The instant case, is, for all practical purposes, “on all fours” with the case of Helvering v. Moloney Electrical Co., 120 F.2d 617, decided by the Circuit Court of Appeals for the Eighth Circuit. In his opinion in this case, Circuit Judge Wood-rough said (120 F.2d at page 621) : “The statute speaks of ‘an amount * * * which is required * * * to be paid within the taxable year in discharge of a debt, or to be irrevocably set aside within the taxable year for the discharge of a debt’. Under the terms of the taxpayer’s contract, however, it is clear that the payment or setting aside of 20 percent of the 1936 excess earnings was not required until 1937, the year following the taxable year. The taxpayer below admitted that payment was not required until June 1, 1937, but urged that the contract ‘did require the company to irrevocably set aside within the taxable year 20% of the net earnings in excess of $320,000’. It is clear, however, that no irrevocable setting aside was required to be made in 1936 or earlier than April of the succeeding year. The contract requires that when the net earnings are determined from the audit (which is ‘to be made at the close of each calendar year’) ‘which, in no event, shall be later than the first day of April, said amount shall forthwith ■ be set aside in a separate fund’. It follows therefore that one of the terms of the statute has not been met.” We can see no real distinction between the instant case and the Moloney case. In each case, the payment required by the contract was to be made in the succeeding calendar year, several months after the end of the taxable year. True it is that in the Moloney case the payment was not to be made until after an audit, and there was no such provision in the indenture contract involved in the instant case. We do not think, however, that this distinction between the two contracts is in any way vital or controlling. The Government seriously contended, in the instant case, that there had been no irrevocable setting aside of the earnings during the taxable year. Petitioner, on the other hand, with equal earnestness, insisted that there had been such an -irrevocable setting aside of earnings during the taxable year by operation of law, and that this was such an irrevocable setting aside of earnings during the taxable year as would satisfy the Statute and entitle the petitioner to the credits in question. We think there is very serious doubt as to the correctness of the contention of petitioner, but we do not think it necessary to pass definitively upon this point. For, as has been indicated, since the specific terms of the contract do not satisfy an essential condition precedent of the Statute, this alone justifies us in here affirming the decision of the Board on the authority of the Moloney case. It is familiar law that there are no inherent or constitutional rights to deductions under a taxing law; such deductions are purely a matter of governmental grace. Stanton v. Baltic Mining Co., 240 U.S. 103, 36 S.Ct. 278, 60 L.Ed. 546. Consequently, it has been said many times that provisions in a Federal Taxing Statute granting special exemptions are to be strictly construed, and that the taxpayer must carry the burden of showing a compliance with the precise terms of the exemption. White v. United States, 305 U.S. 281, 292, 59 S.Ct. 179, 83 L.Ed. 172; Deputy v. DuPont, 308 U.S. 488, 493, 60 S.Ct. 363, 84 L.Ed. 416; Helvering v. Northwest Steel Rolling Mills, 311 U.S. 46, 49, 61 S.Ct. 109, 85 L.Ed. 29. In this connection, it may be stated that the cases in petitioner’s brief wherein “permanently set aside” was construed for charitable purposes are not directly in point. It is well settled that charities are spoiled children of the law. In re Tiffany’s Estate, Surr.Ct.1935, 157 Misc. 873, 285 N.Y.S. 971; cf. Old Colony Trust Co. v. Helvering, Com’r of Internal Revenue, 301 U.S. 379, 57 S.Ct. 813, 81 L.Ed. 1169. We are not impressed by petitioner’s contention that the statutory conditions precedent to the granting of the credits in question are harsh. Cf. Lafayette Hotel Co. v. Commissioner, 43 B.T.A. 426 (strict construction of § 26(c) (2); Nevada-Massachusetts Co. v. Commissioner, 43 B.T.A. 1127 (same). Such arguments are for Congress and not for the Courts. We must accordingly affirm the decision of .the Board of Tax Appeals. Affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_casetyp1_1-3-1	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 "criminal - federal offense". William Luther ELKINS, Petitioner-Appellee, v. Asa KELLEY, Director, State Board of Corrections, et al., Respondents-Appellants. No. 26750. United States Court of Appeals Fifth Circuit. April 7, 1969. Arthur K. Bolton, Atty. Gen. of Georgia, Marion O. Gordon, Asst. Atty. Gen. of Georgia, Atlanta, Ga., John W. Hin-chey, William R. Childers, Jr., Courtney Wilder Stanton, Asst. Atty. Gen., Atlanta, Ga., for appellants. Richard W. Watkins, Jr., Jackson, Ga., for appellee. Before RIVES, BELL and DYER, Circuit Judges. RIVES, Circuit Judge: Warden Smith appeals from a judgment granting Elkins a writ of habeas corpus on grounds that, under principles enunciated in Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, his constitutional rights against self-incrimination have been violated during custodial interrogation. We vacate the judgment and remand the case with directions to dismiss without prejudice for failure to exhaust available and adequate state remedies. Elkins was arrested and questioned about the location of the murder weapon prior to the Supreme Court’s decision in Miranda. He was tried, however, approximately six weeks after the Miranda decision. Elkins was represented at trial by retained counsel, Wesley Asinof, Esq., a respected and experienced criminal defense attorney. The defense asserted was justifiable homicide. At trial, one of the arresting officers testified that, as he arrested Elkins, he advised him that he did not have to make any statement and that he was constitutionally entitled to have a lawyer if he wished. Then the police officer testified that he asked Elkins where the murder weapon was and Elkins stated that he left it at his brother’s service station. Elkins’ counsel did not object to admission of the testimony respecting the gun, nor to introduction of the weapon (the finding of which was clearly a fruit of Elkins’ statement to the arresting officer). In fact, Elkins attempted to bolster his justifiable homicide defense by rhetorically responding on cross-examination that he would not have made a voluntary turnover were he trying to avoid involvement in the homicide. On the other hand, defense counsel did object to admission of hearsay statements by Elkins’ nephew to another police officer in the presence of Elkins. On appeal, Elkins, represented then by court-appointed counsel, enumerated as error the overruling of the defense objection at page 83 of the transcript, note 5 supra, and alleged a violation of the hearsay rule and of the due process guarantees of the Fifth and Fourteenth Amendments to the United States Constitution. Cited obliquely as authority for this enumeration was Miranda v. Arizona, supra. See Elkins v. State, 1966, 222 Ga. 746, 152 S.E.2d 377, 378-379. In affirming the conviction, the Supreme Court of Georgia disposed of the objection issue with the observation that the hearsay “did not relate any incriminating admission of the defendant, and the testimony was not subject to the objection made.” Elkins v. State, supra at 379. Thus, thei Supreme Court of Georgia never passed upon the Miranda admissibility question, but disposed of no more than an inarticulate hearsay objection. From the foregoing examination of the posture of this case as it appears before this Court, it becomes readily apparent that at least three questions must be decided before Elkins’ federal habeas petition can be decided on its merits. First, Elkins may never have squarely raised the Miranda issue before any state tribunal whether on appeal or by collateral attack; second, the Miranda issue may have been intentionally waived as a trial tactic based upon its inconsistency with the justifiable homicide defense ; third, the question is presented as to whether Miranda, which was designed to regulate police warning practices, should necessitate reversal when the interrogation without adequate warnings antedated the Supreme Court decision. The hearing in the federal district court was limited to legal argument on the respondent’s, motion for summary judgment. There has been no eviden-tiary hearing on whether the Miranda issue was intentionally waived as a trial tactic because of its apparent inconsistency with the justifiable homicide defense. Instead, however, of reversing and remanding for such an evidentiary hearing and for decision of the questions of law, we vacate and remand with directions to dismiss without prejudice for failure to exhaust available and adequate state remedies. Georgia has an adequate and available post-conviction procedure. Elkins should first exhaust his state remedies before seeking relief in a federal forum. The judgment is therefore vacated and the case is remanded with directions to dismiss the petition without prejudice. Vacated and remanded with directions. . Miranda was decided on June 13, 1966; Elkins was tried on August 1, 1966 (R. 49). . Testimony of Officer D. L. Fuller, Transcript, p. 79; Record, p. 121. . The weapon was introduced without objection as State’s Exhibit No. 9 (Transcript 87; Record 128). . Transcript, p. 239; Record, p. 252. . Officer William D. Gregory noted that “I asked him [the nephew] if he, the prisoner [Elkins] had left a gun with him at the service station.” Before the next question could be answered, Mr. Asinof objected, stating: “Now, that’s a hearsay conversation.” The prosecution established that Elkins was present during the hearsay conversation and the trial court allowed the questioning to continue, whereupon Mr. Asinof made the following ambiguous comment: “If Tour Honor please, I want to make this observation. We are objecting on the ground that the testimony so far that the defendant stated that he did not wish to make any statement and that he wanted to consult with his attorney, and this would not be admissible against the defendant in any way; hearsay.” (Transcript 83, Record 124). The trial court overruled the objection. The nephew never answered the original inquiry whether Elkins had turned the gun over to him, although he did turn a weapon over to the police according to the officer’s testimony. (Transcript 83-84; Record 125.) . See Georgia Habeas Corpus Act of 1967, Ga.Laws 1967, p. 835; Ga.Code Ann. § 50-127. . Peters v. Rutledge, 5 Cir. 1968, 397 F.2d 731. See Fox v. Dutton, 5 Cir. 1968, 406 F.2d 123; Picklesimer v. Smith, 5 Cir. 1968, 405 F.2d 186; Rearden v. Smith, 5 Cir. 1968, 403 F.2d 773; Henderson v. Dutton, 5 Cir. 1968, 397 F.2d 375. See also Spencer v. Wainwright, 5 Cir. 1968, 403 F.2d 778, indicating in footnotes thereto similar requirements of exhaustion of state remedies in Florida, Texas, Louisiana and Mississippi. 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_appel1_3_3	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 "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant. Anthony SUMMERS v. UNITED STATES DEPARTMENT OF JUSTICE, Appellant. James CAMPBELL v. UNITED STATES DEPARTMENT OF JUSTICE, Appellant. Nos. 92-5008, 92-5102. United States Court of Appeals, District of Columbia Circuit. Argued May 17, 1993. Decided July 30, 1993. Michael J. Ryan, Asst. U.S. Atty., Washington, DC, argued the cause, for appellant. With him on the briefs were Jay B. Stephens, U.S. Atty. at the time the briefs were filed, John D. Bates, R. Craig Lawrence and Michael T. Ambrosino, Asst. U.S. Attys., Washington, DC. James H. Lesar, Washington, DC, argued the cause, for appellees Anthony Summers and James Campbell. Before WALD, HENDERSON and RANDOLPH, Circuit Judges. Opinion for the Court filed by Circuit Judge WALD. WALD, Circuit Judge: In this consolidated appeal, the Department of Justice (“DOJ”) contests two district court rulings that a federal statute, 28 U.S.C. § 1746, requires it to accept, in conjunction with Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests, unnotar-ized, unsworn privacy waivers signed under penalty of perjury. We affirm the district court in one appeal and dismiss the other for lack of jurisdiction. I. In September 1990, Anthony Summers submitted a FOIA request to the Federal Bureau of Investigation (“FBI”) for documents pertaining to John F. Shaw, Sr. Accompanying Summers’ request was a privacy waiver, signed by an individual who identified himself as Shaw, authorizing the release of all such documents. The waiver included all data normally required for such a document, but was not notarized. Instead, it was signed beneath a specific notice that the signer was subjecting himself to penalties for perjury. In response to Summers’ filing, the FBI requested additional information. Most notably, the agency — relying on 28 C.F.R. § 16.41(d)(1), which provides that “a requester must provide with his request an example of his signature, which shall be notarized”— asked Summers to provide Shaw’s notarized signature on the privacy waiver. Summers refused, however, on the ground that such a demand violated 28 U.S.C. § 1746, which allows “any matter” that must be established by a “sworn declaration” to be shown “with like force and effect” by an unsworn declaration subscribed to as true under penalty of perjury. Because Summers balked at providing the requested notarization, the FBI denied his FOIA request. After pursuing administrative remedies, Summers filed suit in district court seeking a declaratory judgment that the DOJ rule requiring notarized signatures violated § 1746. In that forum, the DOJ argued that its regulation was not at odds with § 1746 because that statute allows the use of unsworn, unno-tarized declarations only where a federal law or rule requires a party to swear to the contents of the statement, not where, as here, the regulation at issue merely requires verification by a notary of the identity of the signer of the statement. Since the regulation did not contravene § 1746, the DOJ argued, it should be upheld as a reasonable means of implementing the Privacy Act, 5 U.S.C. § 552a, requirement that agencies guard against unauthorized disclosure of personal information to third parties. The district court was unconvinced. Finding that § 1746 did apply because its “plain and unambiguous language” “does not admit of [the] distinction” between a statement’s content and the identity of its author, the court granted Summers’ summary judgment motion. Summers v. United States Department of Justice, 776 F.Supp. 575, 577 (D.D.C.1991). This appeal followed. II. Section 1746 provides: Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form: (1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).” (2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).” (Emphasis added.) In this court, as in the district court, the DOJ claims that the plain language of this provision supports its argument that Congress intended this statute to apply only where the content of a document is at issue, not where, as under the DOJ regulation, only the identity of a document’s author must be verified. We disagree. Although we have found scant case law relevant to this problem, but cf. Duncan v. Foti, 828 F.2d 297, 297-98 (5th Cir.1987) (per curiam) (unavailability of notary in prison did not bar inmate from filing FOIA requests because § 1746 provided an alternative to notarization for such requests), the plain language of § 1746 indicates that it applies with full force when identity is in question. Congress has said unambiguously that whenever “any matter” must be “supported, evidenced, established, or proved” by a sworn declaration, an un-sworn declaration attested to under penalty of perjury must henceforth be equally acceptable — unless one of the three exceptions mentioned parenthetically in the statutory text is implicated. In common parlance, an individual’s identity — whether manifested by a direct statement {e.g., “I, Jane Doe, declare .... ”), a signature, or both — is certainly a “matter” that an individual may be called on to “support[], evidence[], establish[], or prove[]” in a declaration. Cf. Webster’s THIRD New International Dictionary 1394 (1976) (defining a “matter” first as “a subject (as a fact, an event or course of events, or a circumstance, situation, or question) of interest or relevance”). Indeed, identity is often among the most important “matters” disclosed in any statement — few, if any, statements are valuable without knowing who made them. (Perhaps for that reason, most declarations begin by fixing the identity of the declarant. See, e.g., Declaration of Linda L. Kloss (submitted by the DOJ with this appeal) (“I, Linda L. Kloss, declare as follows:....”)). Since an individual’s identity would seem to be a “matter” that FOIA requesters or third parties waiving privacy are asked to establish, the plain language of § 1746 instructs that a person may use an unsworn statement to establish that identity. Any residual doubt on this question is dispelled when § 1746 is considered in conjunction with 18 U.S.C. § 1621, the general federal perjury statute. The latter provision, as amended to conform to § 1746, states that whenever a person, in a § 1746 declaration, “willfully subscribes as true any material matter which he does not believe to be true,” 18 U.S.C. § 1621(2) (emphasis added), he is guilty of perjury. As the government conceded at oral argument, a person would quite obviously violate this provision if he knowingly signed someone else’s name to a § 1746 declaration. That would only be true, of course, if the signature and, more generally, the identity of the declarant are “material matter[s]” within the meaning of § 1621. Thus, unless the word “matter” is to be given different meanings in these two closely related provisions — an improbable result since § 1621 was amended to include this language at the time Congress enacted § 1746, see 90 Stat. 2534, 2534-35 (1976) — a declarant’s identity as manifested by his signature must also be a “matter” within the meaning of § 1746. Finally, we think that our interpretation of § 1746 is sensible because it prevents the creation of a gaping loophole in that provision’s effect. If, as the government suggests, § 1746 does not cover the authentication of signatures, an agency could routinely require notarization “merely” as a way of identifying the person making the statement. That course of action would render § 1746 essentially a dead letter and end-run Congress’ clear intent of sparing individuals the cost and hassle of notarizing routine submissions. See H.R.Rep. No. 1616, 94th Cong., 2d Sess. 1 (1976), U.S.Code Cong. & Admin.News 1976, p. 5644 (“The requirement that the person who signs an affidavit must appear before a notary and be sworn can be inconvenient.”); 122 Cong.Rec. 34447, 34448 (1976) (statement of Senator Tunney) (“The result of this bill is to do away with one of the remaining anachronisms of our law — the requirement that relatively routine documents bear the seal of a notary public.”). In sum, we agree with the district court that § 1746 applies to verification of the identity of the signers of FOIA privacy waivers. We therefore affirm the decision of the district court in Summers. For the reasons discussed previously, see supra note 1, we dismiss the appeal in Campbell. So ordered. . The DOJ asserts that we have jurisdiction under 28 U.S.C. § 1291 to hear both appeals. We are doubtful, however, that there has been a final, appealable order in Campbell v. United States Department of Justice, No. 92-5102. The order the DOJ attempts to appeal only granted Campbell's motion to compel the government to accept unnotarized privacy waivers; by its own terms, it did not dispose of other issues remaining in the case. See Campbell v. United States Department of Justice, No. 89-3016 (D.D.C. Jan. 21, 1992), slip opinion at 5 (notarization issue "arises out of the larger [Freedom of Information Act] request which is under the jurisdiction of this Court”). Section 1291 grants no authority to review interlocutory orders. See, e.g., Kappel-mann v. Delta Air Lines, Inc., 539 F.2d 165, 167-68 (D.C.Cir.1976) (under § 1291, district court decisions are appealable only if they are final and end the litigation on the merits), cert. denied, 429 U.S. 1061, 97 S.Ct. 784, 50 L.Ed.2d 776 (1977); cf. Fed.R.Civ.P. 54(b) (allowing appeal from an entry of final judgment on some but not all joined claims only upon express certification of district court). Accordingly, we dismiss the Campbell appeal. As a practical matter, this course of action can be expected to have little effect on the parties to that case because our decision in Summers — which, all sides agree, presents an identical legal question — -will be binding precedent in Campbell. . Because the DOJ regulation at issue, 28 C.F.R. § 16.41(d)(1), only requires a ''notarized" signature it might be argued that it does not require the "sworn declaration, verification, certificate, statement, oath or affidavit” necessary to trigger § 1746 (emphasis added to both quotations). Cf. Black’s Law Dictionary 1060 (6th ed. 1990) (defining a notary public as both "[o]ne who is authorized ... to administer oaths” and one who may "attest to the authenticity of signatures”). But the DOJ's sample "Certification of Identity” form makes clear that the agency contemplates that the person signing the form should attest to her identity under oath. Specifically, the form requires that an individual certify that she is the person named on the privacy waiver and sign her name under oath before a notary. Additionally, although the language of § 16.41, see supra page 571, might suggest that it applies only when a "requester” seeks information about herself, both parties assume that it is applicable here, i.e., where the request includes a third party's authorization for the release of material to a requester. See DOJ Brief at 7 n. 4 (arguing that the fact that the FOIA request seeks records from a third party "does not alter the relevant analysis here”). . In this regard, we find no significance in the fact that the approved formats for unsworn declarations included at the end of § 1746 require a declarant to state only that the "foregoing”— which would not include the signature' — is true and correct. Congress required only that statements be "substantially” in that format. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant? A. Department of Agriculture B. Department of Commerce C. Department of Defense (includes War Department and Navy Department) D. Department of Education E. Department of Energy F. Department of Health, Education and Welfare G. Department of Health & Human Services H. Department of Housing and Urban Development I. Department of Interior J. Department of Justice (does not include FBI or parole boards; does include US Attorneys) K. Department of Labor (except OSHA) L. Post Office Department M. Department of State N. Department of Transportation, National Transportation Safety Board O. Department of the Treasury (except IRS) P. Department of Veterans Affairs Answer:
songer_appel1_3_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 appellant. 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. HIGH TECH GAYS; Timothy Dooling, and all others similarly situated; Joel Crawford; and Robert Weston, Plaintiffs-Appellees, v. DEFENSE INDUSTRIAL SECURITY CLEARANCE OFFICE; Director, Defense Industrial Security Clearance Office; Defense Investigative Service; Director of Defense Investigative Service; Secretary of Defense, Defendants-Appellants. No. 87-2987. United States Court of Appeals, Ninth Circuit. July 23, 1990. Before BRUNETTI and LEAVY, Circuit Judges. ORDER The panel has voted to deny the petition for rehearing and to reject the suggestion for a rehearing en banc. The full court has been advised of the suggestion for en banc rehearing, and a majority of the judges of the court has voted against it. Fed.R.App.P. 35(b). The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected. Question: This question concerns the first listed appellant. 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_usc1sect	3146	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 18. 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, Appellee, v. James Edward EDSON, Defendant-Appellant. No. 73-1323. United States Court of Appeals, First Circuit. Argued Oct. 16, 1973. Decided Oct. 23, 1973. Joseph F. Flynn, Rockland, Mass., for defendant-appellant. Henry H. Hammond, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee. Before ALDRICH and CAMPBELL, Circuit Judges. ALDRICH, Senior Circuit Judge. Defendant appeals from an order of the district court setting bail pending trial. The facts are somewhat unusual. On March 1, 1972 defendant was convicted upon a plea of guilty of possessing heroin with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Following indictment, defendant had been incarcerated because of his inability to supply bail set by the court in the amount of $25,000 with surety. On his plea he was sentenced to eight years imprisonment with the additional parole term provided by 21 U.S.C. § 841(b)(1)(A), with credit for time served. On September 24, 1973 the judgment of conviction was vacated because the sentencing judge had failed to comply with F.R.Crim.P. II. ******Defendant was then brought before a magistrate for a determination of bail. At this time defendant had served twenty-five months, and, taking into account good time credits, would have been eligible for parole in seven months. We are informed that because of his good prison record he had been granted three “furloughs” and would have been allowed to attend classes at a local university which had accepted him for the current semester. The magistrate recommended that bail be set again at $25,000 with surety. This recommendation was “adopted and approved” the same day by the district court without evidentiary or other hearing. There is no contradiction of defendant’s claim that he is unable to comply. Defendant is twenty-four years old and unemployed and has no demonstrated resources, nor have his parents. The undisputed effect of this order is that defendant not only remains incarcerated, but, ironically, unlike the situation when he stood convicted, he is no longer entitled to furloughs or to attend school. Passing the diminished strength that we are disposed to accord to district court findings that merely adopt, without even opportunity for a hearing, the report of a magistrate, the defendant has a considerable burden on appeal. However, in view of the substantial errors contained in the magistrate’s memorandum, we proposed under the special circumstances of this case to exercise the authority vested in us by virtue of the Bail Reform Act, 18 U.S.C. § 3147(b), and order our own bail conditions. The magistrate’s finding commences, after reciting the procedural history, with a statement that he proposed to disregard the fact that two jail officers had supplied letters expressing their opinion that defendant was sufficiently rehabilitated to resume the responsibilities of living in a free society. He considered the previous sentence to have been awarded not for rehabilitation, but for “punishment . . . not yet complete.” Defendant argues from this last that the magistrate was disregarding the presumption of innocence which was fully restored by the setting aside of his conviction. We agree, except that so far as bail is concerned the presumption is not that, but, as to an untried defendant, a “presumption in favor of releasability.” United States v. Leathers, 1969, 134 U.S.App.D.C. 38, 412 F.2d 169, 171. We add that, rather than being “of no consequence,” the opinions of the jail officials had a direct bearing upon defendant’s “character and mental condition,” as to which the magistrate was specifically directed to inquire. 18 U.S.C. § 3146(b). Next, the magistrate drew the conclusion that following another trial the defendant would receive “no less a sentence.” He omitted, however, any consideration of the fact that against such a sentence defendant would receive substantial credit for time already served, making the situation quite different from what it was when bail was originally set. The magistrate then pointed to the fact that the defendant had received two sentences in the state court for similar offenses, but which had been suspended, with probation, very possibly on the ground that defendant was already serving a federal sentence. He opined that to release defendant under these circumstances would be “a slap in the face of the state court.” We have no reason to suppose that the state court would be affronted or would expect the magistrate to do other than his duty. In any event, this court holds no possible obligation to the state court at the expense of defendant’s federal rights. It should be unthinkable that a magistrate would disregard the clear command of Congress because of its indirect effect upon the feelings of judges of another court. The seriousness of the crime of distributing narcotics may have distracted the magistrate’s attention from the priorities established by Congress by the Bail Reform Act. Until a defendant has been convicted, the nature of the offense, as well as the evidence of guilt, is to be considered only in terms of the likelihood of his making himself unavailable for trial. Determination of what is needed “reasonably [to] assure” defendant’s appearance, not considerations of state comity, controls the setting of bail under the Bail Reform Act. This defendant, as a practical matter, may well face less than one year in jail. If he were to default, even on personal recognizance, he faces an additional federal sentence. What might seem even more pressing, while conviction of the original offense would not be a violation of his state probation, defaulting even federal bail presumably would be such. Hence defendant would face, in addition, a reactivation of his state sentences. As against this, no affirmative reason has been offered why defendant is likely to flee the state where all his past and present connections appear to be. Under these circumstances we cannot feel that the government, quite apart from the commendation defendant has earned during his present incarceration, has met the burden now imposed on it by the Bail Reform Act of showing that defendant would violate any bail order that we presently impose. The order setting bail at $25,000 with surety is vacated. The case is remanded forthwith to the district court with instructions to set bail at $5,000 without surety, and to release the defendant in the custody of his mother, who has indicated a willingness to assume such. . Uncomfortable as it may be for the U. S. Attorney, particularly in the case of a judge who persists over the years in not observing this rule, we place some burden upon him, at least to call the court’s attention at the time to the oversight (not the judge from whom the present appeal is taken.) . Under F.R..A.P. 9(a) the district court should have stated its “reasons.” We do not remand in this instance to ascertain whether it agreed in the magistrate’s reasoning because of our decision to consider the matter de novo. 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 18? Answer with a number. 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. LUHRING et al. v. UNIVERSAL PICTURES CO., Inc. No. 10014. Circuit Court of Appeals, Ninth Circuit. Jan. 17, 1945. Rehearing Denied March 12, 1945. Ellis I. Hirschfeld and Samuel W. Blum, hoth of Los Angeles, Cal., for appellants. Loeb & Loeb, of Los Angeles, Cal. (Milton H. Schwartz and Herman F. Selvin, both of Los Angeles, of counsel), for appellee. Before MATHEWS, STEPHENS, and HEALY, Circuit Judges. MATHEWS, Circuit Judge.- In a German court called the Land-gericht, Mayfilm Aktiengesellschaft, a German corporation, hereafter called Mayfilm, brought an action against Universal Pictures Corporation, a New York corporation, seeking thereby to recover of the New York corporation 50,000 reichsmarks, claimed to be due and owing to Mayfilm, with interest from July 1, 1926. On March 4, 1930, the Landgericht rendered judgment to the effect that Mayfilm take nothing by its action. From that judgment Mayfilm appealed to a German court called the Kammergericht. In that court, on July 27, 1932, Mayfilm obtained judgment against the New York corporation for the amount claimed — 50,000 reichsmarks, with interest from July 1, 1926. That judgment, hereafter called the Mayfilm judgment, was affirmed by a German court called the Reichsgericht on February 3, 1933. Thereafter, prior to January 19, 1937, appellee, Universal Pictures Company, Inc., a Delaware corporation, acquired all property and assets of the New York corporation and assumed all just and valid obligations of the New York corporation, and the New York corporation was dissolved. On January 19, 1937, appellants, John Luhring and Margaret Morris, citizens of California, claiming to be the owners of the Mayfilm judgment, brought an action thereon against appellee in the Superior Court of Los Angeles County, California, seeking thereby to recover of appellee $35,256.99, with\interest from January 1, 1937. On appellee’s petition, the action was removed from the Superior Court to the District Court of the United States for the Southern District of California. Ap-pellee answered, jury trial was waived, the case was tried by the court, findings of fact and conclusions of law were stated, and judgment was entered in appellee’s favor. From that judgment this appeal is prosecuted. The question is whether appellants were the owners of the Mayfilm judgment. The. complaint alleged and the answer denied that the Mayfilm judgment was assigned to appellants by Union Bank & Trust Company of Los Angeles, a California corporation, hereafter called Union Bank. No other title to the Mayfilm judgment was asserted by appellants. The evidence showed that on January 16, 1937, Union Bank executed what purported to be an assignment of the Mayfilm judgment to appellants, but there was no evidence that Union Bank ever owned the Mayfilm judgment. The complaint alleged and the answer denied that the Mayfilm judgment was assigned to Union Bank by Fritz Mandl. There was no evidence of any such assignment. The evidence showed that on April 22, 1936, Mandl executed what purported to be an assignment to Union Bank, but that was not, .and did not purport to be, an assignment of the Mayfilm judgment. It purported to be an assignment of a claim. There was no evidence that Mandl ever owned the Mayfilm judgment. The complaint alleged and the answer denied that the Mayfilm judgment was assigned to Mandl by Bank fur Auswartigen Handel Aktiengesellschaft, a German corporation, hereafter called the German bank. There was no evidence of any such assignment. Mandl testified that a claim of the German bank against the New York corporation was assigned to him by the German bank, but he did not testify that the Mayfilm judgment was assigned to him by the German bank or anyone else. There was no evidence that the German bank ever owned the Mayfilm judgment. The complaint alleged and the answer denied that the Mayfilm judgment was assigned to the German bank ,by Joe May. There was no evidence of any such assignment. The evidence showed that on February 12, 1936, the German bank wrote a letter to the New York corporation, stating that May had given the German bank an assignment of the Mayfilm judgment, but there was no evidence that the statement was true. A purported copy of the purported assignment was set out in the letter, but the original — if an original existed. — was not put in evidence. There was no evidence that it ever existed, nor was there any evidence that May ever owned the Mayfilm judgment. The complaint alleged and the answer denied that on February 25, 1935, in an action by the German bank against May-film, the Landgericht rendered a judgment “providing” that the alleged assignment of the Mayfilm judgment by May to the German bank was legally valid. There was no evidence that the Landgericht rendered any such judgment. The evidence showed that on May 30, 1934, the German bank brought an action against Mayfilm in the Landgericht, .alleging that the claim asserted by Mayfilm in its action against the New York corporation — the claim on which the Mayfilm judgment was based— was the property of May and not of May-film, and that May had assigned the claim to the German bank. On February 25, 1935, in the German bank’s action against Mayfilm, the Landgericht rendered a declaratory judgment to the effect that the claim was the property of May and not of Mayfilm, and that the alleged assignment of the claim by May to the German bank was legally valid. The declaratory judgment did not declare that the Mayfilm judgment was the property of May, or that May had assigned the May-film judgment to the German bank — validly or otherwise. No assignment of the May-film judgment was mentioned or referred to in the declaratory judgment. There was no evidence that the Mayfilm judgment was ever assigned or transferred by Mayfilm, or that title to the Mayfilm judgment ever passed from Mayfilm. The District Court accordingly found that the Mayfilm judgment was at all times the property of Mayfilm, and that neither May nor the German bank nor Mandl nor Union Bank nor appellants ever acquired or owned the Mayfilm judgment. These findings are amply supported by evidence. The District Court concluded, and we agree, that appellants were not entitled to recover in this action. Affirmed. The New York corporation, also named as a defendant, was dissolved before this action was brought. Appellee, therefore, is here treated ah the sole defendant. Claimed to be the value, on January 1,1937,' of the principal sum (50,000 reichs-marks), plus accrued interest (38,142.48 reiehsmarks), awarded to Mayfilm by the Mayfilm judgment. The complaint and answer referred to in this opinion are appellants’ amended complaint and appellee’s amended answer thereto. This purported assignment was received in evidence as appellants’ Exhibit 8. A translation of this purported assignment was received in evidence as appellants’ Exhibit 6. It mentioned two claims — a claim of Mayfilm against the New York corporation and a claim of Bank fur Auswartigen Handel Aktiengesellschaft against May-film — and stated: “With these premises, I, the undersigned Fritz Mandl, hereby assign this claim to [Union Bank].” Which of the two claims was “this claim” we do not know. This assignment was not put in evidence. Mandl testified that it was a written assignment executed “between 1932 and 1934,” but that he did not know where it was. A translation of this letter was received in evidence as appellants’ Exhibit 5. A translation of the pleadings and judgment in the German bank’s action against Mayfilm was received in evidence as appellants’ Exhibit 4. Neither the New York corporation nor appellee was a party to that action. 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_r_bus	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 "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. 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 respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_state	52	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". Mary BERRY and Normil Berry v. Peter CURRERI, Appellant. No. 86-3592. United States Court of Appeals, Third Circuit. Argued Dec. 9, 1987. Decided Jan. 26, 1988. Diane Trace Warlick (argued), Law Offices of R. Eric Moore, Christiansted, St. Croix, Virgin Islands, for appellant, Peter Curreri. Henry V. Carr, III (argued), Murnan and Carr, St. Thomas, Virgin Islands, for appel-lees, Mary Berry and Normil Berry. Before GIBBONS, Chief Judge, and STAPLETON and MANSMANN, Circuit Judges. OPINION OF THE COURT GIBBONS, Chief Judge: Peter Curreri, a physician practicing as a gynecologist in the Virgin Islands, appeals from a judgment in favor of Mary Berry and Normil Berry in their medical malpractice case against him, and from the denial of his post-trial motions for judgment notwithstanding the verdict, for a new trial, and for a remittitur. We conclude that a new trial should have been granted, and thus we will reverse. I. Mary Berry consulted Dr. Curreri in 1980 with respect to a gynecological problem, and was advised by him that she should undergo a total abdominal hysterectomy. That surgery was performed by Dr. Curr-eri at Knud Hansen Memorial Hospital, St. Thomas, Virgin Islands, on September 2, 1980. Within three or four days after the surgery, Mary Berry developed severe abdominal pain. Around September 11, a quantity of fecal matter burst through her vagina. She also developed an elevated temperature. Dr. Curreri diagnosed her condition as a recto-vaginal fistula. She was released from the hospital on September 15, 1980. Thereafter she was admitted to Pavis Hospital in Santurce, Puerto Rico, where her condition was accurately diagnosed as a small bowel fistula. The fistula was surgically located and repaired. Pursuant to the Virgin Islands Health Care Providers Malpractice Act, 27 V.I.C. § 166i, Mary Berry and her husband timely filed with the Medical Malpractice Action Review Committee in the Office of the Commissioner of Health (the Committee) a proposed complaint in which she sought full damages and in which Mr. Berry sought damages for loss of consortium. The allegations of negligence against Dr. Curreri in the proposed complaint are as follows: 24. The defendant was negligent in failing to possess and employ the skills, training and knowledge which he proffered to possess or in negligently failing to exercise such skills, training and knowledge on behalf of the plaintiff Mary Berry. 25. The defendant was negligent in his diagnosis of the plaintiff Mary Berry’s condition and should have known or had reason to know, that the discharge from the plaintiffs vagina was from a small bowel rather than a recto-vaginal fistula. 26. The defendant was negligent in that he failed and neglected to provide proper treatment and care of the plaintiff Mary Berry’s medical condition. 27. The defendant was negligent in that he released plaintiff Mary Berry from the hospital in direct contravention of the medical indications she evidenced at the time. 28. The defendant’s failure and neglect to use due, reasonable or proper skill and care in performing his services on behalf of plaintiff Mary Berry was so gross as to evidence a willful and wanton disregard for the plaintiff Mary Berry’s health, welfare and safety. Nowhere in the proposed complaint is any reference made to any negligence on Dr. Curreri’s part in diagnosing the need for an abdominal hysterectomy, or in performing that surgery. The quoted allegations refer solely to the diagnosis and treatment of the post-operative complications from that surgery. Pursuant to 27 V.I.C. § 166i, the Committee selected Dr. Maximo Ruiz, a St. Croix gynecologist, to render the expert medical opinion on the complaint. He reviewed the proposed complaint and medical records obtained from Knud Hansen Memorial Hospital and Pavia Hospital, and after reciting Mary Berry’s course of treatment, opined: I have to conclude: 1. that this patient had an excellent medical care, and there is no evidence that this case has been neglected during her stay in K.H.M.H. judging by the daily well documented progress notes, order of medication, consultation requested and answered on time, the follow-up of the attending physician and surgical consultant, the summary discharge explained in detail, the course of the patient in hospital, including daily contact of Dr. Curreri with the patient attending surgeon in Puerto Rico regarding the patient’s condition, even though the patient choose [sic] to go to another surgeon, but unfortunately a very unhappy post surgical complication occurred, but a very good end result. 2. Let me emphasize that there are some potential hazards in this kind of surgical procedure due to well recognized complications, the most commonly encountered risks are infection and bleeding; more serious risks are possibility of near-by organs injury such as bladder, urether, and bowel. 3. The treatment of small or large bowel vaginal fistula is surgical with some variations in the repair depending on the size of what segment of the bowel is involved, condition and lengths of time in which fistula has been developed, so it is important to establish a radiologic diagnosis if possible. The management priority when the patient is debilitated with malnutrition states, the patient should be first medical to correct these abnormalities, otherwise it will be a poor surgical risk. 4. Some entero recto-vaginal fistula may follow pelvic abscess, particularly if the bowel adheres to the vaginal cuff and forms part of the inflamatory process of the wall of the abscess. The quoted part of Dr. Ruiz’s report to the committee makes no mention of the diagnosis or need for the abdominal hysterectomy or of the manner in which the surgery was performed. Under the Health Care Providers Malpractice Act, the conclusion of the Committee’s expert is not binding on the plaintiff. The Berrys therefore filed in the District Court of the Virgin Islands a complaint identical to the proposed complaint filed with the Committee. Dr. Curreri answered, and the case was eventually listed for made a motion in limine to preclude the Berrys from introducing evidence that the hysterectomy was unnecessary or performed improperly. In making that motion Dr. Curreri relied on 27 V.I.C. § 166i(b), which in relevant part provides: No action against a health care provider may be commenced in court before the claimant’s proposed complaint has been filed with the Committee and the Committee has received the expert opinion as required by this section.... The district court denied the motion in limine, and evidence eventually was admitted on the diagnosis of need for a hysterectomy and on the manner of performance of the surgery. In ruling on the motion in limine the district court did not read the proposed complaint as alleging improper diagnosis. Instead, the court concluded that the expert, Dr. Ruiz, must have so read it, since he addressed the propriety of the diagnosis in his report. Although the court’s ruling from the bench was not specific, apparently the court’s reference was to the recital of Mary Berry’s course of treatment: After reviewing the entire document submitted to me: This 32 year P4 was admitted in K.H.M.H. on September 1, 1980 for elective surgery because of fibroid uterus and adenomyosis, associated symptoms of dysmenorrhea, dyspareunia and low backache. Patient underwent TAH and prophylactic appendectomy on September 2, 1980. The surgical and pathologic report confirmed the admitting diagnosis. The Berrys contend that this recital is an expression of an expert opinion that the diagnosis and surgery were proper, and that the district court was therefore justified in concluding that these claims had been submitted to the Committee. We disagree. Section 166i(b) provides, conjunctively, that a complaint must be filed with the Committee and that the Committee must obtain an expert opinion. The purpose of the Committee “[is] to arrange for expert review of all malpractice claims before actions based upon such claims are commenced in court.” 27 V.I.C. § 166i(a). It is plain, therefore, that the complaint must set forth a specific claim or claims of malpractice, and that an expert opinion must be obtained on each claim. Here the complaint did not allege malpractice in diagnosing the need for a hysterectomy, or in the performance of that surgery. Thus there was no occasion for Dr. Ruiz to address such a claim. Moreover, the language in which he described the diagnosis and surgery clearly is no more than that, describing, accurately, the contents of medical records, without endorsing their contents. As noted above, evidence was submitted respecting Dr. Curreri’s diagnosis and treatment. Moreover, the court explicitly submitted to the jury claims of misdiagnosis and of negligent surgery. If, therefore, section 166i(b) limits the subject matter jurisdiction of the district court to consider medical malpractice claims, a new trial must be awarded. The Berrys do not dispute that the statute means what it says, and the cases construing it have treated the Committee filing requirement as jurisdictional. Saludes v. Ramos, 19 V.I. 544, 547 (D.V.I.1983), vacated and remanded on other grounds, 744 F.2d 992 (3d Cir.1984); Quinones v. Charles Harwood Memorial Hospital, 573 F.Supp. 1101, 1103 (D.V.I.1983). A strict reading of the language “[n]o action against a health care provider may be commenced in a court before the claimant’s proposed complaint has been filed with the Committee” is, moreover, entirely consistent with the overall legislative intention animating the Malpractice Act. A principal feature of that act is that the Government of the Virgin Islands procures a group insurance policy for all Virgin Islands health care providers, the premiums of which are paid, in part, by public funds. 27 V.I.C. § 166e. The act limits the amount of an attorney’s contingent fee. 27 V.I.C. § 166f. It also limits the amount of recovery. 27 V.I.C. § 166b. The Committee review process is designed to eliminate claims lacking merit and encourage prompt settlement of meritorious claims. In this context, reading section 166i(b) as anything less than a limitation on the subject matter jurisdiction of the district court would be inconsistent with the overall statutory objectives. II. Dr. Curreri challenges the district court’s rulings in several other respects, all of which bear upon the amount of the judgment. The jury verdict awarded Mary Berry $300,000 and Normil Berry $25,000. A judgment was entered “[t]hat plaintiffs Mary Berry and Normil Berry recover from defendant Peter Curreri the sum of $300,000 and $25,000, respectively, together with costs, including reasonable attorneys fees.” Dr. Curreri’s challenges are predicated on 27 V.I.C. § 166b which in relevant part provides: The total amount recoverable for any injury of a patient may not exceed two hundred and fifty thousand dollars ($250,000) plus actual expenses up to the time of trial not paid or payable or reimbursed from any other source for reasonable and necessary medical care, custodial care and/or rehabilitation services for each anticipated year of need; and lost earnings. Dr. Curreri contends: (1) that the $300,000 judgment in favor of Mrs. Berry exceeds the statutory maximum; (2) that in applying the statutory maximum the amount awarded to Mr. Bferry for loss of consortium must be included; and (3) the statutory maximum includes any award of attorneys fees. In support of the third contention Dr. Curreri points to the fact that the Health Care Providers Malpractice Act deals specifically with attorneys fees, by imposing limits on the percentage of the recovery an attorney may charge as a contingency fee. 27 V.I.C. § 166f. The Berrys respond: (1) that the $300,-000 award to Mrs. Berry is based on a general verdict which may include a permissible award, above $250,000 for lost wages; (2) that 27 V.I.C. § 166b does not modify 5 V.I.C. § 541(b) which vests discretion in the district court to award fees to the prevailing party; and (3) that the $250,-000 limitation of recovery in 27 V.I.C. § 166b is in any event unconstitutional. Since we have held in Part I that a new trial is required, Dr. Curreri’s challenges to the amount of the judgment are, for purposes of the instant appeal, moot. Moreover, although the judgment provides for a fee award to the prevailing party, the amount of siich an award has not been quantified. Nevertheless, because we are remanding for a new trial, and some of the issues raised by Dr. Curreri may arise in the course of that trial, it is appropriate to give guidance on them. The Berrys are certainly correct that lost earnings may be recovered in addition to any damages to which the $250,-000 limit in section 166b applies. Since, however, the $250,000 limit is an essential feature of the legislative scheme for stabilizing the cost of malpractice insurance, care must be taken to be sure that a general verdict does not include an amount of damage prohibited by that section. Thus in any medical malpractice case in which the plaintiff seeks to recover lost earnings and other damages, the court should not submit the case to the jury in a manner which results in a general verdict. Special verdict interrogatories should separate the claim for lost earnings from the claim for other damages. As to Mr. Berry’s claim for loss of consortium, the plain language of section 166b suggests that it is included in the $250,000 limit on recovery. Mr. Berry’s claim is wholely derivative. It stands or falls on the malpractice claim of Mrs. Berry. The Berrys have not called to our attention any authority or legislative history suggesting otherwise. The attorneys fee question has been addressed by this court in a closely analogous context. In Baptiste v. Government of the Virgin Islands, 529 F.2d 100, 102-03 (3d Cir.1976), the court pronounced dicta to the effect that the $25,000 limit in the Virgin Islands Tort Claims Act, 33 V.I.C. § 3911(c), applied to a judgment for costs, including attorneys fees awarded to the prevailing party. The Berrys point out that the language in section 166b differs from that in the Tort Claims Act, and thus that the legislature may have intended a different result. On the other hand, a construction of the statute which permitted the shifting of fees to a losing health care provider in excess of the maximum recovery specified in section 166b would appear to be inconsistent with the legislature’s overall objective of stabilizing the cost of malpractice insurance; a cost which is borne in significant amount by the Government of the Virgin Islands. The entire cost of the Tort Claims Act is borne by that Government, which made a legislative decision to limit its exposure in any judgment to $25,000. The Government’s interest in the Health Providers Malpractice Act is not identical, but it is sufficiently similar that the Baptiste interpretation should apply to it as well as the Tort Claims Act. That interpretation of section 166b is suggested, as well, by the inclusion in the Health Care Providers Malpractice Act of limitations on contingent fees as percentages “of the plaintiffs’ recovery.” 27 V.I.C. § 166f. The Berrys’ constitutional objection to section 166b is that by placing a maximum on the amount of damages which a jury may award in a personal injury action the Virgin Islands Legislature violated the civil jury trial provision of the Seventh Amendment. In support of the Seventh Amendment argument, the Berrys point to Boyd v. Bulala, 647 F.Supp. 781, 788-89 (D.W.Va.1986), which holds that a Virginia statute imposing a damage limitation on jury verdicts in medical malpractice eases in a trial in a federal court violates the Seventh Amendment. The Boyd court relied on Byrd v. Blue Ridge Rural Electric Corp., 356 U.S. 525, 537, 78 S.Ct. 893, 900, 901, 2 L.Ed.2d 953 (1958), and Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935), both of which refer to the factfinding role of juries in federal courts. This contention was never made to, and thus not addressed by, the district court. It is advanced here as a ground for affirming the judgment despite its inconsistency with section 166b. Since we are setting aside the judgment on other grounds there is no reason for addressing a legal contention which was not made in the trial court and which cannot affect the outcome of the appeal. Our decision not to consider the Seventh Amendment contention should not be construed as any endorsement, even tacitly, of the view of the Boyd court on that issue. III. Dr. Curreri has also objected to the district court’s instruction in several respects. Since we have granted a new trial which will be limited to the malpractice claims presented to the Committee, the instructions on retrial will be different. There is no reason, therefore, to address these objections on this appeal. IV. The submission to the jury of claims of malpractice never presented to the Committee violated 27 V.I.C. § 166i(b), and this error requires a new trial. The judgment appealed from will therefore be reversed and the case remanded to the trial court for proceedings consistent with this opinion. 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_stpolicy	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 interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" 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". CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, et al., Plaintiffs/Appellees, v. The STATE OF WASHINGTON et al., Defendants/Appellants, The Don’t Bankrupt Washington Committee, Intervenor/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. The STATE OF WASHINGTON et al., Defendants/Appellants, The Don’t Bankrupt Washington Committee, Intervenor/Appellant. No. CA 82-3404. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 10, 1982. Decided Jan. 11, 1983. Appeal Dismissed April 18, 1983. See 103 S.Ct. 1762. Jeffrey D. Goltz, Asst. Atty. Gen., Olympia, Wash., for defendants-appellants. William R. Squires, III, Davies, Wright, Todd, Riese & Jones, Seattle, Wash., argued, Franklin P. Auwarter, Mayer, Brown, Platt, Chicago, 111., Richard K. Willard, Washington, D.C., for plaintiffs-appellees. Before WRIGHT, ANDERSON and CANBY, Circuit Judges. CANBY, Circuit Judge: This case involves a challenge to the constitutionality of the Washington State Energy Financing Voter Approval Act, 1981 Wash.Laws (2d Ex.Sess.) ch. 6 (“Initiative 394”), as applied to three nuclear power plants currently under construction. The initial challenge was brought by three banks serving as trustees for holders of bonds previously issued to finance the construction of these projects. The Don’t Bankrupt Washington Committee (“Committee”), the original proponent of Initiative 394, was permitted to intervene. The United States then filed suit challenging the Initiative on behalf of the Bonneville Power Administration (“BPA”). The Committee was also permitted to intervene in that action and the two cases were consolidated. Plaintiffs argued that initiative 394 violated various provisions of the federal and state constitutions. The district court held that the Initiative unconstitutionally impaired existing contractual obligations to finance and complete three nuclear power plants under construction. U.S. Const. Art. I, § 10. It did not reach the additional contentions presented. We affirm. BACKGROUND BPA is a federal agency charged with marketing the power produced from federal hydroelectric projects in the Columbia River Basin to 147 customers in the Pacific Northwest. In the 1960’s, BPA was faced with rapidly increasing demand for power and concluded that it would be unable to meet the future needs of its customers from existing facilities. As a result, BPA embarked upon a program under which certain of its customers were to build and operate the additional power plants needed to meet the anticipated demand. One segment of the program provided for BPA’s “preference customers” (public utilities and cooperatives) to construct power projects that would be integrated into BPA’s system without BPA’s owning or operating the projects. The Washington Public Power Supply System (“WPPSS”) is the builder of three nuclear power plants to be operated by it as part of- the BPA program. WPPSS is a municipal corporation of the State of Washington known as a “joint operating agency.” It is comprised of 19 public utility districts and 4 municipalities, all of which are also political subdivisions of the State. During the early 1970’s WPPSS entered various agreements to enable it to build and operate the plants. Those agreements and the provisions of state law in existence at the time they were executed contain the obligations of contract allegedly impaired by Initiative 394. The agreements fall into three categories. The first category consists of project agreements between BPA and WPPSS governing the construction and operation of each of the three plants. The project agreements allow BPA to oversee certain aspects of construction including budgets and termination. BPA is authorized to disapprove “significant action” taken by WPPSS if BPA concludes that the action is inconsistent with “Prudent Utility Practice.” If WPPSS and BPA are unable to agree on the proposed action, the matter is referred to an independent “project consultant.” The project consultant is authorized to resolve the dispute in accordance with the Prudent Utility Practice standard. There is little doubt that a decision not to finance the projects through to completion would be a “significant action” subject to disapproval if it did not meet the Prudent Utility Practice standard. In addition, the project agreements specifically obligate WPPSS to “use its best efforts to issue and sell bonds to finance the costs” of construction of each plant. The second category of agreement entered by WPPSS consists of “Net Billing Agreements” between WPPSS, BPA and other “participants,” who are BPA customers. Like the project agreements, the Net Billing Agreements require WPPSS to construct and operate the plants in accordance with Prudent Utility Practice. They also make each participant liable for a share of the construction and financing costs of the project equal to that participant’s share of anticipated power output. Under the agreements, the participants assign their share of anticipated output to BPA in return for credit for an equal amount of power on their wholesale bill from BPA. BPA in turn assumes each participant’s obligation to pay its share of the construction and financing costs of the project. The result of the Net Billing Agreements, then, is that BPA receives essentially all the power to be produced by the three plants, and undertakes to pay the construction and financing costs of the projécts whether or not any power ultimately is produced by the plants. Those costs BPA would presumably pass on to its ratepayers throughout the Northwest. This obligation of BPA to pay the costs of constructing the plants regardless of output makes the protections of the project agreements extremely important to BPA. The project agreements enable BPA to prevent a termination of construction by WPPSS unless that termination is consistent with Prudent Utility Practice. The third category of agreement entered by WPPSS consists of promises to bond purchasers, made in the form of bond resolutions and the state statutes giving them effect. WPPSS issued revenue bonds, payable solely from the income derived by WPPSS from its ownership and operation of the power plants. The bond resolutions assured bondholders that WPPSS was “duly authorized under all applicable laws to create and issue the bonds and to adopt [the resolutions].” The authorizing section of the resolutions permitted the issuance of future bonds “in such amounts and from time to time as may be required to pay the costs of construction.” The resolutions contain covenants by WPPSS that it would “take all lawful measures required to issue and sell” the additional bonds required to complete the project. WPPSS also agreed to “use its best efforts to issue and sell Bonds to finance the costs of the project and the completion thereof.” It covenanted that it would “proceed with all reasonable diligence to and will construct to completion the project and complete such construction at the earliest practical time.” WPPSS’ promises to use best efforts to sell bonds and to proceed with diligence to completion are important to the bondholders, of course, because the bonds are payable from revenues produced by operation of the plants. It is true that the bondholders are also protected by BPA’s obligation under the Net Billing Agreements to pay the costs of construction including its financing, but that fact does not render the promises of completion unimportant to the bondholders. Sale of power is still an important source of repayment of the bonds. The bond resolutions themselves recognized that operation of each project is “essential to the payment and security of the Bonds.” INITIATIVE 394 Initiative 394 was enacted at the Washington general election of November 3, 1981, in response to cost overruns and construction delays at five nuclear power plants then under simultaneous construction by WPPSS. Initiative 394 applies only to future projects and those projects still under construction as of July 1, 1982, that have exceeded their first official agency budget estimates by more than 200%. All three WPPSS power plants at issue here fall into the latter category. The heart of the Initiative is contained in section 4. That section provides that no public agency may issue or sell bonds to finance construction or acquisition of any major public energy project “unless it has first obtained authority for the expenditure of the funds to be raised by the sale of such bonds for that project at an election” conducted in accordance with the Initiative. Other provisions of the Initiative require the public agency to hire an independent consultant to prepare a draft cost-effectiveness study, followed by a period of public comment and issuance of a final draft study. The election then is held and voters within the districts encompassed by the agency and its members are entitled to vote. Bonds may not be issued in excess of the amounts of funds authorized by the voters and, of course, if the proposal is voted down no bonds may issue at all. The Initiative alters WPPSS’s functioning in two ways. Prior to the Initiative’s enactment there was no explicit requirement that WPPSS obtain cost-effectiveness studies for its projects. Arguably, however, such studies were encompassed in the “Prudent Utility Practice” standard which governed both WPPSS’s operation and BPA’s limited oversight of WPPSS. A more important change arises from the fact that the only pre-initiative statute governing WPPSS’ bond issuing authority was Wash. Rev.Code § 43.52.3411. That statute authorized WPPSS to issue bonds payable from the revenues of the utility projects whenever its board deemed it advisable. Initiative 394 accordingly imposes a substantial new hurdle to the sale of bonds essential to WPPSS’ completion of the three plants. .Plaintiffs argue that by conditioning WPPSS’s ability to issue bonds on the outcome of a popular referendum, Initiative 394 impermissibly impairs WPPSS’s obligations under the project agreements, the Net .Billing Agreements, and the bond resolutions. CONTRACTS CLAUSE Article I, Section 10, Clause 1 of the United States Constitution provides: “No State shall ... pass any ... Law impairing the Obligation of Contracts.... ” To determine whether Initiative 394 violates the contract clause, we must address two major issues. First, we must determine whether the Initiative substantially impairs WPPSS’s contractual obligations to BPA or the bondholders. Second, we must determine whether the Initiative, if it substantially impairs those obligations, is nevertheless justified as a reasonable and necessary exercise of the State’s sovereign power. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978); United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977). IMPAIRMENT Defendants argue that Initiative 394 did not substantially impair any of WPPSS’s contractual obligations. Conceding that the Initiative does alter WPPSS’s ability to issue bonds, they contend that the possibility of such an alteration was contemplated at the time the agreements were made. If in fact the contracts in question did allow for such an alteration, then the Initiative does not substantially impair them. See Northwestern Nat’l Life Ins. Co. v. Tahoe Regional Planning Agency, 632 F.2d 104, 106 (9th Cir.1980). We do not agree, however, that the contracts can reasonably be read as contemplating the kind of alteration of WPPSS’s bonding authority effected by Initiative 394. Defendants point to the provision of the bond resolutions in which WPPSS covenanted to “take all lawful measures required to issue and sell” the additional bonds (emphasis added). They also rely on the provision of the project agreements that promises that WPPSS will use its best efforts to sell bonds to finance completion provided “that in each case such Projects Bonds may then be legally issued and sold” (emphasis added). We realize that the defendants’ arguments, particularly with regard to the latter provision, are not without force. We nevertheless believe that both provisions may be read most reasonably as promises of compliance with regular and broadly applicable bonding requirements of the state for the issuance of bonds. It is less reasonable to interpret them as leave for the state to impose a more narrowly targeted requirement of success in a popular referendum as a condition for further bonding authority by WPPSS. We confess that our conclusion is influenced by what we perceive as the central aspect of the agreements before us. The contracting parties agreed at the outset that additional power resources were needed. The object of the agreements was to provide those resources. WPPSS recognized the importance of completion to BPA and the bondholders, and BPA agreed in effect to repay the bonds regardless of whether the plants were completed. The bondholders therefore had a promise of payment even without the plants, but completion of the plants unquestionably will make more energy available to finance repayment. WPPSS agreed to finish the piants with all reasonable diligence, which it clearly cannot do without issuing more bonds. In a very practical sense, the promise of completion was the only consideration BPA received for agreeing to pay the construction and financing costs. Its entitlement to the energy produced — BPA’s sole benefit from the entire set of agreements— is rendered valueless if the plants are not completed. WPPSS’s ability to issue additional bonds was accordingly the centerpiece of the entire arrangement. We have difficulty reading the provisions of the contracts in a way that permits destruction of their primary purpose. A promise in a contract that gives one party the power “to deny or change the effect of the promise, is an absurdity.” United States Trust Co. v. New Jersey, 431 U.S. at 25 n. 23, 97 S.Ct. at 1519 n. 23 (quoting Murray v. Charleston, 96 U.S. 432, 445, 24 L.Ed. 760 (1877)). Defendants also contend that there is no impairment because of Wash.Rev.Code § 43.52.3411 (“Section 3411”), the statute that authorizes agencies such as WPPSS to issue bonds. That statute provides that, with one exception not relevant here, “all the provisions of law as now or hereafter in effect relating to revenue bonds or warrants of public utility districts shall apply to revenue bonds or warrants issued by the joint operating agency including, without limitation, provisions relating to: ... the time and place of payment of such bonds or warrants and the interest rate or rates thereon; the covenants that may be contained therein and the effect thereof....” Defendants focus on the words “now or hereafter” and contend that Section 3411 constitutes a reservation of state authority to make the changes imposed by Initiative 394. In our view, this contention overreads the statute. The meaning and application of a state statute that is challenged as violating the contracts clause is a question of federal law. Coombes v. Getz, 285 U.S. 434, 441, 52 S.Ct. 435, 436, 76 L.Ed. 866 (1932); see American Toll Bridge Co. v. Railroad Comm’n, 307 U.S. 486, 490, 59 S.Ct. 948, 951, 83 L.Ed. 1414 (1939); Rapid Transit Corp. v. New York, 303 U.S. 573, 593, 58 S.Ct. 721, 731, 82 L.Ed. 1024 (1938). That rule necessarily extends to Section 3411 insofar as that statute dictates the application of Initiative 394 to the contracts in issue here. The provisions of Section 3411 relied upon by defendants to establish a reservation of state power to modify contracts are ambiguous. The State has on occasion enacted statutes which explicitly exempted or subjected bond issues to the effects of subsequently enacted laws. Compare Wash.Rev.Code § 53.34.120 (state covenants not to limit or alter vested rights of certain specified bondholders) with Wash.Const. art. XII, § 1 (all laws relating to corporations may be altered at any time). Defendants argue that any ambiguity in the provisions at issue here should be resolved in favor of the State. We cannot agree. Although contracts which affect the public interest are interpreted so as to favor the State, when the State borrows money .the State is not acting entirely in its sovereign capacity. Thus, insofar as the purely financial aspects of the agreement are concerned, reservations are not to be lightly inferred. United States Trust v. New Jersey, 431 U.S. at 25 n. 23, 97 S.Ct. at 1519 n. 23; see Restatement (Second) of Contracts § 207 comment a. We conclude that the effect of Section 3411 simply is to render applicable to future bond issues the requirements of state law then in existence so long as imposition of those requirements does not modify pre-existing contracts. We do not read it as a reservation of power applicable to the contracts at issue here. While the State unquestionably may reserve power to change some aspects of existing contracts, see Atlanta v. Metropolitan Atlanta Rapid Transit Authority, 636 F.2d 1084 (5th Cir.1981), the State has not specifically done so here. Moreover, to interpret Section 3411 as a broad reservation of power is not permissible when the statute is viewed in light of the contract clause. For example, Section 3411 could not sensibly be construed to permit the State to change by law the interest rates or redemption schedules applicable to previously issued bonds. See United States Trust Co. v. New Jersey, supra, 431 U.S. at 27-28, 97 S.Ct. at 1520-21. Section 3411 therefore cannot be applied as broadly and retrospectively as its literal language may suggest. It is a closer question whether it can be applied to allow the State to restrict a future bond issue in a manner contrary to the provisions of preexisting contracts. We conclude that it cannot be so applied, at least in the direction dictated by Initiative 394. Section 3411 may doubtless apply many of the technical requirements of the State’s bond laws to bonds issued by WPPSS in the future. Initiative 394 may itself be applied, so far as the contract clause is concerned, to future bond issues for projects not subject to the contractual constraints binding the projects in issue here. But Section 3411 does not, in our view, reserve to the State the power to apply Initiative 394 to the additional bond issues of WPPSS that were promised in the contracts before us, and that remain central to the accomplishment of their purpose. Defendants argue that Initiative 394 did not simply affect financial obligations. They contend that it altered the structure of governance of one of the State’s political subdivisions, an act inherently within the sovereign’s power. The Initiative did alter the type of control the electorate could exercise over WPPSS. But the voters always had ultimate control, direct or indirect, over WPPSS by the power to elect its board. The Initiative simply altered the manner in which WPPSS can raise money. The new method does involve voter approval, but it is still the method of financing that is being altered. Defendants also argue that a municipal corporation, such as WPPSS, remains subject to state regulation and cannot be allowed to contract itself out from state control. That argument misperceives the nature of the restriction on state action imposed by the contract clause. As a creature of the state a municipal corporation derives its power from the legislature. Once having granted certain powers to a municipal corporation, which in turn enters into binding contracts with third parties who have relied on the existence of those powers, the legislature (or here, the electorate) is not free to alter the corporation’s ability to perform. Louisiana ex rel. Hubert v. New Orleans, 215 U.S. 170, 175-78, 30 S.Ct. 40, 42-43, 54 L.Ed. 144 (1909); Wolff v. New Orleans, 103 U.S. 358, 365-68, 26 L.Ed. 395 (1880); see United States Trust, 431 U.S. at 24 n. 22, 97 S.Ct. at 1519 n. 22. WPPSS remains subject to state regulation, but if the State significantly alters WPPSS’s ability to perform previously negotiated agreements, it impairs obligations of contract. Since we have concluded that neither the contracts themselves nor Wash. Rev.Code 43.52.3411 permit the state to modify the contractual obligations along the lines dictated by Initiative 394, we must next address the question whether Initiative 394 constitutes a substantial impairment of those obligations. It largely follows from what has already been said that the impairment is substantial. The issuance of additional bonds by WPPSS is essential to the performance of its contracts; it is particularly crucial to the obligation running from WPPSS to BPA. Pri- or to Initiative 394, the issuance of additional bonds was within the discretion of the board of directors of WPPSS. BPA had the right to ensure that the discretion was exercised in accordance with Prudent Utility Practice. An abandonment of the project was consequently likely to occur only if events caused such abandonment to be in BPA’s interests as a distributor of power. Initiative 394 adds a new and unpredictable element. Bonds necessary for completion of the projects can only be issued after approval of the proposed expenditure of the proceeds by the electorate at a popular referendum. No standard can be imposed on the electorate in exercising its decision, nor can it be subjected to any review. It can reject the proposal for any reason or no reason. The addition of the referendum requirement is, we conclude, a severe impairment that defeats the expectations of the parties under their contracts. See Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978). Nor do we view Initiative 394 as an insubstantial impairment prior to the time that the voters actually turn down a proposed bond issue. Defendants argue that the district court made inadequate findings to support its conclusion that the very existence of Initiative 394 injured plaintiffs by lowering the market value of WPPSS bonds and thereby increasing the costs of construction. They also contend that there was no real loss to the bondholders because they still have BPA’s promise of payment. We need not fix with certainty, however, any loss in value of bonds caused by the existence of Initiative 394. It is sufficient that the additional requirements imposed by Initiative 394 impair the ability of WPPSS to carry out its covenants in the manner originally promised. United States Trust Co. v. New Jersey, supra, is conclusive on that point. In that case, the Supreme Court held that the fact that the bondholders’ security provision impaired by the state was of little value was irrelevant to the constitutional determination. Absent the payment of just compensation, the repeal of a particular security provision impaired an obligation of contract even though the bondholders might have retained other contractual security. 431 U.S. at 18-19, 97 S.Ct. at 1515-16. As in United States Trust, the covenants at issue here were not superfluous. Plaintiffs were promised financing of the plants to completion, subject only to contractually specified conditions. That promise was clearly an inducement to contract. Cf. El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965) (unlimited redemption period could be changed by statute to five year redemption period when original provision was not an inducement to contract). Plaintiffs were not compensated for modification of that central provision. Initiative 394 impairs the obligation by imposing the election requirement, and that requirement is a present injury not dependent on the outcome of such an election. JUSTIFICATION Having concluded that Initiative 394 does impair WPPSS’s contractual obligations, we must determine whether the degree of that impairment is both reasonable and necessary to achieve a valid state interest. United States Trust, supra 431 U.S. at 29, 97 S.Ct. at 1521. Our determination whether the State’s action is justified is affected by the fact that WPPSS is itself a political subdivision of the State, made up of other political subdivisions. We cannot view the contracts between WPPSS and the plaintiffs as those between private parties. Because the State is a contracting party, we give less deference to its claims of justification for impairment. Id. at 25-26, 97 S.Ct. at 1519-20. We emphasize that the State has not attempted to justify Initiative 394 as an exercise of the State’s sovereign prerogative to protect the health and safety of its citizens. Considerations of health and safety did not give rise to the Initiative, and are not offered in justification of it. Instead, defendants propose five public purposes served by Initiative 394. Essentially the five reduce to three related goals: ensuring WPPSS’s public accountability; ensuring public accountability in all decisions affecting the energy and economic future of the State; and protecting the State’s finances by placing controls on WPPSS’s spending. Achievement of public accountability is certainly a legitimate public purpose. It is not clear, however, that Initiative 394 is either reasonable or necessary to achieve it. The Initiative was not necessary to give the public control over either WPPSS or energy and economic decision-making generally. Through the election process, the voters have always had direct or indirect control of both. At least one alternative method of achieving public accountability has actually been adopted. See, e.g., 1982 Wash.Laws (1st Ex.Sess.) ch. 43 (requiring joint operating agencies to form executive boards with outside membership). Others remain available. Cost effectiveness studies can be required without being tied to an election requirement for the issuance of bonds previously promised. The existence of such alternative means of achieving accountability cast doubt on the validity of Initiative 394’s application to the obligations in issue here. See United States Trust Co., 431 U.S. at 29-31 & n. 28, 97 S.Ct. at 1521-22 & n. 28. Cf. El Paso v. Simmons, 379 U.S. 497, 516-17, 85 S.Ct. 577, 587-88,13 L.Ed.2d 446 (1965) (retroactive application “quite clearly necessary” to achieve state’s purpose.). Limitation of public spending is also certainly a legitimate state goal, but its weight is diminished in contract clause analysis when the state limits its own previous financial commitments. As the Supreme Court declared in United States Trust: [C]omplete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State’s self-interest is at stake. A governmental entity can always find a use for extra money, especially when taxes do not have to be raised. If a State could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, the Contracts Clause would provide no protection at all. 431 U.S. at 26, 97 S.Ct. at 1519 (footnote omitted). These words are no less applicable when the purpose of an impairment is merely saving money, as here, rather than spending it for a broad public purpose (mass transportation) as in United States Trust. Reduced to bare essentials, the State’s financial argument in support of Initiative 394 is that completion of the projects as contracted by WPPSS had become too expensive. Even in the light of the severe cost overruns and lengthy construction delays associated with the WPPSS projects, Initiative 394 does not appear to be a reasonable measure if applied to the contracts before us. The Initiative seems somewhat narrowly targeted to modify those very contracts, rather than being part of a broad public program with incidental impairing effects. In Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978), the Supreme Court invalidated a statute that altered the pension plan liabilities of employers who either terminated a pension plan or closed a Minnesota office. The statute, intended to protect discharged workers, essentially required the employer to assure all employees of at least ten years standing a full pension regardless of the vesting provisions of any existing plan. Stressing the fact that the severe disruption of contractual obligations was unexpected and served only a relatively narrow public interest, the Court held that not even the presumption, favoring legislative judgments as to necessity and reasonableness could save the act. The Spannaus Court contrasted the facts of Home Building & Loan Ass’n. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934), in which a temporary provision extending mortgage redemption periods was upheld. That emergency measure, enacted in response to the economic conditions of the 1930’s, protected a basic societal interest rather than a favored group. Moreover, it imposed reasonable conditions, many of which were designed to protect the creditors whose rights were affected. Defendants argue that unlike Spannaus this case involves an area historically regulated by the State and that state regulation altering contractual obligations was therefore foreseeable. It is true that the State has historically regulated power production and the operation of its political subdivisions. The State’s regulation is not necessarily more foreseeable, however, than state regulation of a port authority and mass transportation involved in United States Trust, supra, where the State’s impairment of bond obligations was nevertheless struck down. Defendants argue that the cost overruns and delays which prompted passage of the Initiative were of such a magnitude as to compare with the economic conditions present in Blaisdell. We cannot agree. The concerns addressed by the Initiative were not unknown in the early 1970’s. In Blaisdell the State, acting in its sovereign capacity adopted a balanced and temporary' measure designed to protect broad societal interests which were threatened by the unforeseeable collapse of the world economy. In contrast, Initiative 394 sacrifices the interest of parties to contracts with the State’s subdivision in order to protect the State’s own finances. We cannot conclude that this imposed sacrifice was reasonable in light of changed circumstances. Compare United States Trust, 431 U.S. at 31-32, 97 S.Ct. at 1522-23 with El Paso v. Simmons, 379 U.S. at 515, 85 S.Ct. at 587. We therefore hold that the contract clause of the United States Constitution prohibits the application of Initiative 394 to the three WPPSS projects at issue in this appeal. Our disposition makes it unnecessary to address other grounds urged by plaintiffs in support of the district court’s decision. The judgment of the district court is AFFIRMED. . Morgan Guaranty Trust Company of New York is bond fund trustee for bondholders of Project 1. Continental Illinois National Bank and Trust Company of Chicago is trustee for bondholders of Project 2. Seattle-First National Bank is trustee for bondholders of Project 3. . WPPSS was created in 1957 pursuant to Wash.Rev.Code § 43.52.360 which provides, in part: Any two or more cities or public utility districts or combinations thereof may form an operating agency (herein sometimes called joint operating agency) for the purpose of acquiring, constructing, operating and owning plants, systems and other facilities and extensions thereof, for the generation and/or transmission of electric energy and power. Each such agency shall be a municipal corporation of the state of Washington with the right to sue and be sued in its own name. . There is also an ownership agreement for project Number 3. . “Prudent Utility Practice” is defined in the project agreements as: any of the practices, methods and acts, which, in the exercise of reasonable judgment in light of the facts (including but not limited to practices, methods and acts engaged in or approved by a significant portion of the electrical utility industry prior thereto) known at the time the decision was made, would have been expected to ¿ccomplish the desired result at the lowest reasonable cost consistent with reliability, safety and expedition. Defendants argue that Prudent Utility Practice is a non-standard. The standard is quite flexible. The project agreements further state that “Prudent Utility Practice is not intended to be limited to the optimum practice, method or act, to the exclusion of all others, but rather to be a spectrum of possible practices, methods or acts.” We need not attempt to define its contours. It is sufficient to note that it is the standard to which the parties agreed. . BPA will receive only 70% of the power from one of the plants (Number 3) at issue here because the remaining 30% is owned by nonparticipants. . The bond resolutions stated that the bonds were revenue bonds to be paid solely from “income, revenues, receipts and profits derived by the Supply System through the ownership and operation by it of the project.” . Two additional plants were begun after the three noted earlier. BPA was not involved in those projects and work on them has been halted for the time being. . The original total estimated cost for all five WPPSS projects was approximately $4 billion. As of May 1981 the estimated total cost for the five projects was $24 billion. The original estimate for the three plants at issue here was $1.9 billion. As of May 1981 the estimated total cost for those three plants was $12 billion. . The major provisions of Initiative 394 are the following: New Section. Sec. 2. The purpose of this chapter is to provide a mechanism for citizen review and approval of proposed financing for major public energy projects. The development of dependable and economic energy sources is of paramount importance to the citizens of the state, who have an interest in insuring that major public energy projects make the best use of limited financial resources. Because the construction of major public energy projects will significantly increase utility rates for all citizens, the people of the state hereby establish a process of voter approval for such projects. New. Section. Sec. 3. The definitions set forth in this section apply throughout this chapter unless the context clearly requires otherwise. * * * * * * (2) “Major public energy project” means a plant or installation capable, or intended to be capable, of generating electricity in an amount greater than two hundred fifty megawatts. Where two or more such plants are located within the same geographic site, each plant shall be considered a major public energy project. An addition to an existing facility is not deemed to be a major energy project unless the addition itself is capable, or intended to be capable, of generating electricity in an amount greater than two hundred fifty megawatts. A project which is under construction on July 1, 1982, shall not be considered a major public energy project unless the official agency budget or estimate for total construction costs for the project as of July 1, 1982, is more than two hundred percent of the first official estimate of total Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_civproc1	56	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. Winthrop F. DAVIS, Appellant, v. CHEVY CHASE FINANCIAL LIMITED and B. Francis Saul. No. 80-1297. United States Court of Appeals, District of Columbia Circuit. Argued April 10, 1981. Decided Oct. 15, 1981. Robert H. Hishon, Atlanta, Ga., for appellant. Leslie A. Nicholson, Jr., Washington, D.C., with whom Robert B. Robbins, Washington, D.C., was on the brief, for appellees. Before McGOWAN, Senior Circuit Judge, and TAMM and WALD, Circuit Judges. Opinion for the court filed by Circuit Judge TAMM. TAMM, Circuit Judge: In this case appellant Winthrop F. Davis challenges the district court’s grant of summary judgment on both counts of a complaint filed against his former corporate employer and one of its officers. At stake in the litigation is the right of ownership of 4.960 shares of stock in appellee Chevy Chase Financial Limited (CCFL or Company) purchased by Davis during his tenure as an employee. An arbitrator construing the written agreement governing the stock transaction ruled that Davis was contractually obliged to tender the shares to CCFL upon termination of his employment. Following the adverse ruling, Davis filed this suit seeking vacatur of the arbitration award and equitable relief under provisions of the federal arbitration and securities laws. The district court granted summary judgment for appellees on both counts of Davis’ complaint and upheld the arbitration award, prompting this appeal. Although mindful of the deference properly accorded arbitration decisions, we find that the arbitrator exceeded his authority and therefore vacate much of his ruling. We also conclude that the entry of summary judgment against appellant was erroneous and accordingly reverse and remand for appropriate proceedings. I. BACKGROUND In August of 1973 appellant Davis began his employment with CCFL, a Bermuda corporation with its principal office in this country. At the commencement of his employment, Davis and CCFL executed a Stock Purchase Agreement (“Agreement”) under which Davis became the owner of 4.960 shares of stock in the Company. The Agreement contained provisions restricting Davis’ right to alienate his minority interest in CCFL and obligating the Company to purchase the shares if Davis wished to dispose of them. The regime governing the subsequent transfer of the shares distinguished between dispositions taking place during the first five years of Davis’ employment and those taking place after five years of his service to CCFL had elapsed. On January 12, 1979, slightly more than five years after joining the Company, Davis left its employ. Purporting to rely on the terms of the Agreement, CCFL demanded that Davis tender his shares back to the Company. When Davis refused, CCFL invoked the Agreement’s arbitration clause and submitted the dispute to an arbitrator. Although Davis denied that the matter was one subject to arbitration and accordingly protested the submission, he participated fully in the ensuing proceeding. Upon briefing and oral argument, the arbitrator rejected the contention that Davis was under no contractual obligation to resell the shares to CCFL and ordered their conveyance for $31,793.60, or $6.41 per share. Following the arbitrator’s decision, Davis commenced this litigation by filing a two-count complaint in the United States District Court for the District of Columbia. In Count I Davis sought vacatur or modification of the arbitration award under the relevant provisions of the United States Arbitration Act, 9 U.S.C. §§ 10(d), 11(b) (1976). He alleged that the arbitrator had jurisdiction to determine only the value of shares that Davis voluntarily wished to alienate, and thereby exceeded his authority in ruling that Davis was obliged to offer the shares to CCFL. In his alternative Count II, Davis charged that appellees CCFL and B. Francis Saul, II, one of its officers, violated the antifraud provisions of the federal securities laws, 15 U.S.C. § 78j (1976), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5 (1981), in connection with the initial sale of the CCFL stock. The gravamen of this count is that the appellees, in demanding that Davis transfer the CCFL shares, attempted to enforce the Agreement in. a manner contrary to oral representations made contemporaneously with its execution. Davis alleged that CCFL officials had stated when he signed the Agreement that if he remained in the employ of the Company for five years, he could retain ownership of the shares indefinitely, regardless of his subsequent employment status. Davis sought declaratory and injunctive relief that would permit him to remain the owner of the stock. Prior to trial appellees filed for summary judgment on both counts, and Davis offered a cross-motion for summary judgment on the first count. In a brief memorandum order the district court granted appellees’ motion on both claims. Davis v. Chevy Chase Financial Ltd., No. 79-3244 (D.D.C. Feb. 15, 1980), Memorandum Order (M.O.); Joint Appendix (J.A.) at 127-29. The trial judge concluded that the arbitrator was empowered under the Agreement to determine whether Davis was contractually obliged to tender the shares to CCFL. M.O. at 2; J.A. at 128. As an independent, alternative ground for summary judgment on Count I, the district court examined the Agreement and found that it unambiguously bound Davis to offer the CCFL shares to the Company at the time his employment was terminated. Davis’ termination was, the court found, an “Event of Sale” under the Agreement that imposed an unconditional obligation to tender the shares to CCFL, and not a mere right of first refusal in the Company as Davis had claimed. Id. As for Count II, the district judge conclude ed that, as “no evidence before the Court [indicates] that the Securities Act or SEC Rules were violated,” summary judgment in favor of appellees was appropriate. Id. This appeal ensued. II. DISCUSSION Davis raises three issues in this appeal. First, he renews his objection to the arbitration award, arguing that the arbitrator exceeded his authority in ruling on Davis’ obligations under the Agreement. Second, he challenges the district court’s independent construction of the Agreement. Finally, he contends that summary judgment on the federal securities claims was inappropriate, as there existed a genuine issue of material fact regarding the alleged oral misrepresentations. A. The Arbitrator’s Authority. Federal courts are empowered under section 10 of the United States Arbitration Act to vacate arbitration awards if any of several specified conditions are met. The only condition relevant in the current context is contained in section 10(d) of the Act, which provides in pertinent part that an award may be vacated where the arbitrator “exceeded [his] powers.” Appellant contends that the Agreement unambiguously limited the authority of the arbitrator to the determination of a single issue, the fair market value of any CCFL shares of which Davis wished to dispose. Davis argues that, as he had no desire at any time to alienate any of the CCFL shares and was not under any obligation to sell them, no dispute subject to arbitration under the Agreement-existed. In appellant’s view, therefore, the entire award must be treated as a nullity. Before turning to the details of these contentions, we note at the outset the limited review function properly performed by a federal court in scrutinizing an arbitration award. There is a strong federal policy that favors the submission of civil disputes to arbitration as an alternative to the “complications of litigation.” Wilko v. Swan, 346 U.S. 427, 431, 74 S.Ct. 182, 184, 98 L.Ed. 168 (1953); Scherk v. Alberto-Culver Co., 417 U.S. 506, 511, 94 S.Ct. 2449, 2453, 41 L.Ed.2d 270 (1974). Where parties' have selected arbitration as a means of dispute resolution, they presumably have done so in recognition of the speed and inexpensiveness of the arbitral process; federal courts ill serve these aims and that of the facilitation of commercial intercourse by engaging in any more rigorous review than is necessary to ensure compliance with statutory standards. It is particularly necessary to accord the “narrowest of readings” to the excess-of-authority provision of section 10(d). Andros Compania Maritima v. Marc Rich & Co., 579 F.2d 691, 703 (2d Cir. 1978). That provision does not, it must be stressed, confer on courts a general equitable power to substitute a judicial resolution of a dispute for an arbitral one; rather, where the interpretation of a contract is at issue, “[i]t is the arbitrator’s construction which was bargained for,” and not that of the courts. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960). Arbitration is, however, a matter of contract, and the contours of the arbitrator’s authority in a given case are determined by reference to the arbitral agreement. Parties to such an agreement cannot be required to submit to arbitration any matter that they did not agree would be subject to that manner of dispute resolution. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). A party who consents to the inclusion in a contract of a limited arbitration clause does not thereby waive his right to a judicial hearing on the merits of a dispute not encompassed within the ambit of the clause. In sum, the genesis of arbitral authority is the contract, and arbitrators are permitted to decide only those issues that lie within the contractual mandate. By necessary implication, an arbitral award regarding a matter not within the scope of the governing arbitration clause is one made in excess of authority, and a court is precluded from giving effect to such an award. Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361; J. P. Greathouse Steel Erectors, Inc. v. Blount Brothers Construction Co., 374 F.2d 324 (D.C.Cir.), cert. denied, 389 U.S. 847-48, 88 S.Ct. 64, 19 L.Ed.2d 116 (1967). We turn now to the arbitration provision in the Agreement between Davis and CCFL. The only reference to arbitration is contained in Paragraph 4, which is headed “Disposition of Shares after Five Years.” Under subparagraph a, if a sale between Davis and CCFL is to occur, the price is to be the “fair market value” of the shares. Subparagraph b then provides a mechanism for the determination of this value. It provides in pertinent part: b. The fair market value of the offered Shares shall be determined by mutual agreement between the Corporation and Stockholder. If they are unable to so agree, the matter shall be submitted promptly to arbitration under the rules of the American Arbitration Association. The determination of the arbitrator or arbitrators shall be final and binding upon Stockholder and the Corporation as to the fair market value of the offered Shares .... J.A. at 12. When Davis left CCFL in 1979 and refused to resell the shares, the Company filed a “Demand for Arbitration” under the Commercial Arbitration Rules of the American Arbitration Association. J.A. at 19. In that demand CCFL invoked the benefit of subparagraph 4b and defined the dispute as involving only the valuation of the shares. Id. CCFL did not, we note, state in the demand that the question of appellant’s alleged obligation to tender the shares was an aspect of the described dispute. Id. In his answering statement to the arbitrator, Davis denied that any arbitral dispute existed as he did not wish to dispose of his shares and was not under any obligation to sell them to CCFL. J.A. at 22-23. In his second answering statement, Davis renewed his objections to the arbitrator’s jurisdiction and reserved his right to challenge any award on jurisdictional grounds. J.A. at 72-75. In the arbitration proceeding, the question whether the conditions precedent to arbitration under the Agreement had been met was fully ventilated; the arbitrator found that Davis’ termination triggered an obligation on the appellant’s part to tender the shares to CCFL. The arbitrator then computed the fair market value of the shares and “ordered” their conveyance to CCFL. We agree with appellant that the arbitrator exceeded his authority in ruling that Davis was contractually obliged to sell his shares to CCFL. Although the arbitration clause at issue here did not explicitly bar consideration of questions other than the value of the shares, we find that the relevant wording necessarily implied that the arbitrator’s authority was so limited. When viewed in the overall context of the Agreement, subparagraph 4b is susceptible, we believe, of no construction other than that offered by appellant. The clause clearly provides that the arbitrator may act only to determine the value of “offered” shares when CCFL and Davis cannot agree on the proper price. Appellees, citing the “federal policy to construe liberally arbitration clauses,” contend that where an arbitrator makes findings on the scope of his authority, such rulings should only be set aside where “completely irrational” or so “palpably faulty” that no judge could ever have made such a ruling. Appellees, however, misconstrue both the nature of the inquiry in this case and the appropriate role of the reviewing court in passing on arbitrability disputes. When a reviewing court is called upon to determine whether an arbitrator, in passing on a matter concededly within his jurisdiction, misconstrued the contract in question, great deference is appropriate; to use Justice Douglas’ often-cited phrase, the award in such a case must be affirmed if it “draws its essence” from the governing agreement. Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361. Although various tests have been employed in implementation of this broad standard, it is apparent that the arbitrator’s award should not be upset in such a case if it represents a plausible interpretation of the contract. Federated Employees of Nevada, Inc. v. Teamsters Local No. 631, 600 F.2d 1263, 1264 (9th Cir. 1979). Where, however, a party to an arbitration proceeding challenges the arbitrator’s authority to decide a particular issue, the function of a reviewing court is distinctly different. The threshold question of arbitrability is one of law, and a reviewing court is obligated to make its own determination of the issue. Mobil Oil Corp. v. Local 8-766, 600 F.2d 322, 324-25 (1st Cir. 1979). The court’s decision may, of course, be informed by the arbitrator’s resolution of the arbitrability question, id. at 325, and we agree with appellees that, where the scope of arbitration is “fairly debatable” or “reasonably in doubt,” the arbitrator’s assumption of jurisdiction should be upheld. Brief for Appellees at 10, quoting Butler Products Co. v. Unistrut Corp., 367 F.2d 733, 736 (7th Cir. 1966). Neither arbitrators nor courts, however, have the prerogative to redraft an arbitration clause to require parties to arbitrate matters that they did not initially agree to arbitrate. Farkar Co. v. R. A. Hanson DISC, Ltd., 583 F.2d 68, 72 (2d Cir. 1978). We therefore reject the proposition that the inclusion of a limited arbitration clause in a contract empowers an arbitrator to make largely nonreviewable decisions regarding his jurisdiction. To hold otherwise through endorsement of appellees’ conception of our reviewing function would run the unacceptable risk of denying parties their right to a judicial forum to resolve disputes. We reject as well appellees’ contention that, in the absence of express language to the contrary, an agreement to arbitrate an issue carries with it a concomitant power to determine arbitrability with limited judicial review. Brief for Appellees at 11. Where, as here, language is employed that suggests a limited scope of authority for the arbitrator, a more rational inference is that the parties themselves intended to determine if an arbitral dispute existed, with the assistance of the courts if necessary. In sum, we find that this arbitration clause gave the arbitrator authority to determine only the “fair market value” of any CCFL shares that Davis was transferring, voluntarily or pursuant to a contractual obligation, to the Company. Finally, appellees argue that as Davis himself raised the question of arbitrability in the arbitration proceeding, he thereby waived his right later to object to the arbitrator’s assumption of jurisdiction. Brief for Appellees at 10-11. Although we are mindful of the policy favoring submission of disputes to arbitration, we cannot accept the appellees’ waiver argument where what is at issue is the jurisdiction of the arbitrator. Davis did in this case raise the arbitrability question; he did so, however, with full reservation of his right to have the arbitrator’s determination subjected to judicial review. The factual context of the case at bar is quite similar in this regard to that confronted by the court in Local 719, American Bakery & Confectionary Workers of America v. National Biscuit Co., 378 F.2d 918, 921-22 (3d Cir. 1967). In Local 719, when faced with a waiver argument virtually identical to that offered by appellees here, the court noted: [WJhere as here the reluctant party has presented its objection to arbitrability to the arbitrator and has not thereafter clearly indicated its willingness to forego judicial review, we believe that the issue is sufficiently preserved for our subsequent judicial inquiry. Id. at 922. Although we are aware of decisions suggesting that review of an arbitrator’s determinations of arbitrability should be limited, see, e.g., Yakima Newspaper Guild, Local 27 v. Republic Publishing Co., 375 F.Supp. 945, 947 (E.D.Wash.1974), we agree with the court in Local 719 that such a rule might actually foster litigation by requiring parties disputing arbitrability to seek “interlocutory” review of jurisdictional rulings. 378 F.2d at 921. Accordingly, we find that Davis did not forfeit his right to judicial consideration of arbitrability by submitting the question initially to the arbitrator. We hold, therefore, that the arbitrator exceeded his authority in ruling that Davis was contractually obliged to sell the CCFL shares to the Company and vacate his decision on that question. B. The District Court’s Construction of the Agreement. In concluding that Davis was bound under the Stock Purchase Agreement to tender the CCFL shares to the Company, the district judge did not rely solely on the arbitrator’s construction of that document. Rather, he determined through independent analysis that the Agreement unambiguously required Davis to return the stock upon the termination of his employment. M.O. at 2; J.A. at 128. With only the document itself and the parties’ briefs before him, the trial judge rejected appellant’s claim that the Agreement was at least sufficiently unclear to preclude summary judgment. Given our disposition of appellant’s challenge to the arbitrator’s decision, the trial court’s summary determination of the meaning of the Agreement must be reviewed by the same standards we would apply to the review of any district court’s interpretation of a contract as a matter of law. Although respectful of the efforts of the district judge in attempting to construe the Delphic language in this Agreement, we cannot agree that its provisions are so clear that appellant should have been denied the opportunity to present evidence supporting his arguments. At first blush, the Agreement appears to present a simple and straightforward scheme to govern the disposition of the shares following their initial sale to Davis. Paragraph 3, which was controlling during the first five years of Davis’ employment, provides that should Davis wish to sell the shares, or should an “Event of Sale” occur that mandates sale, CCFL is obliged to purchase them at their “book value.” Paragraph 4 governs disposition of the shares after five years and hence is the key provision in the current litigation. All the parties agree that if Davis were still employed by CCFL, the Company would have only a right of first refusal if Davis wished to sell the shares. The central issue in the current litigation is the effect of Davis’ termination under the Agreement. We will turn first to Paragraph 4 of the Agreement; it provides, in pertinent part: 4. Disposition of Shares after Five Years. a. If subsequent to the expiration of the five year period referred to in paragraph 3.a herein an Event of Sale occurs or Stockholder desires to pledge, encumber, sell or otherwise dispose of all or some of his Shares, then Stockholder shall first offer such Shares (or all of the Shares in the event of an Event of Sale) to the Corporation at a price equal to their fair market value determined as set forth in subparagraph b below. J.A. at 12. The appellant argues that the net effect of the provision is to confer on CCFL only a right of first refusal if Davis desires to dispose of the shares, which, of course, he does not. The determinative question, then, is the meaning of the phrase “If ... an Event of Sale occurs .'. . Stockholder shall first offer such Shares ... to the Corporation . . . . ” The resolution of this question turns initially on the definition of “Event of Sale,” which is supplied in Paragraph 3: 3. Purchase of Stock bv Corporation. a. If, during the period beginning on the date of this Agreement and ending five years thereafter, Stockholder offers some or all of the Shares to Corporation, Corporation shall purchase them at the price specified in subparagraph d below. b. Stockholder shall sell, and Corporation shall purchase, the Shares at the price specified in subparagraph d below, if any one of the following events (hereinafter called “Events of Sale”) shall occur with respect to Stockholder during the five year period referred to in subparagraph a above: (1) Death, (2) Insolvency, bankruptcy or the making of an assignment for the benefit of creditors, (3) Stockholder is neither an employee of Corporation nor a member of any committee or board thereof, unless such is due to Stockholder’s retirement either for disability or because he has become at least 55 years old. (4) .... J.A. at 9. Davis is, of course, no longer an employee of CCFL, and thus, both sides agree, b(3) is the operative section. Appellant Davis makes two main arguments regarding the Agreement. He contends initially that the phrase “Event of Sale” encompasses only a termination that occurs within the first five years of his employment. After that fifth year, he argues, there can be no “Event of Sale” under the above definition. Second, Davis argues that, even assuming his termination was such an “Event,” the word “first” in “shall first offer” in Paragraph 4 confers on CCFL only a right of first refusal. Appellant contends that this construction — a mandatory resale to the Company during the first five years of his employment, with a right of first refusal in CCFL thereafter — provides a coherent structure to the Agreement. In the first five years, in which his “tenure” rights would presumably be low, Davis must resell to the Company at a reduced “book value,” though he does have a guaranteed buyer; after that time, however, when his tenure rights are theoretically greater, he need only offer the shares to the Company if he wishes to sell them. By contrast, appellant contends that CCFL’s construction of the Agreement actually reduces Davis’ rights as his service lengthens. According to the CCFL view, prior to the expiration of five years of service, the Company must purchase the shares whenever Davis wishes to sell them or an “Event” occurs, but after five years, there is no obligation on the Company to purchase — only an obligation on Davis to tender. When reviewing a grant of summary judgment, we are, of course, obliged to view the record in the light most favorable to the party .opposing the motion and to resolve all questions of inference in favor of that party. Fed.R.Civ.P. 56(c); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Mazaleski v. Treusdell, 562 F.2d 701, 717 (D.C.Cir.1977). In cases in which the dispositive issue involves the construction of a contract, summary judgment may be appropriate if the provisions of the contract are unambiguous. See, e.g., Parish v. Howard, 459 F.2d 616, 618 (8th Cir. 1972). The meaning of a contract is, however, usually a question of fact; as the Second Circuit noted in Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1320 (1975), discerning contractual intent is a factual question unless the terms of the contract are “wholly unambiguous.” Accord, Landtect Corp. v. State Farm Mutual Life Insurance Co. of America, 605 F.2d 75, 79-80 (3d Cir. 1979). As the.Heyman court noted: Where contractual language is susceptible of at least two fairly reasonable interpretations, this presents a triable issue of fact, and summary judgment would be improper. Heyman, 524 F.2d at 1320 (quoting Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468, 471 (2d Cir. 1969)). However the test for determining the clarity of contract terms is formulated, the core notion is clear: summary judgment on a contract is appropriate only when the relevant provisions are so straightforward that they can be read in but one way. The doctrines noted above make clear that courts should be reluctant to dispose summarily of claims involving the interpretation of contracts. Where a contract is not “wholly unambiguous,” the parties have the right under principles of American contract law to present oral testimony and other extrinsic material to aid in its interpretation. Heyman, 524 F.2d at 1320. Courts should be especially cautious in determining summarily the meaning of contractual provisions where, as here, the law governing is likely that of a foreign nation, and thus is presumably unfamiliar. Finally, the fact that both parties sought summary judgment on the contract claim does not in any way alter the applicability of these doctrines. See 6 Moore’s Federal Practice ¶ 56.13 at 56-341 (2d ed. 1976 & 1980 Supp.). Applying these principles, we cannot agree that this Agreement was susceptible of but one reasonable interpretation. It is manifest from the provisions set forth above that the document is hardly a model in elegance or clarity. To offer but a single example of possible ambiguity, in Paragraph 3 of the Agreement the parties use the language “shall sell” to describe the mandatory nature of Davis’ obligation to tender the shares; by contrast, in Paragraph 4, the language “shall first offer” is used. Yet appellees argue that there is no difference in meaning between the phrases when an “Event of Sale” occurs. We cannot agree that the opaque language of Paragraph 4 is so clear that the introduction of relevant parol and other evidence would not aid in the process of construction. At base, the question is one of the intent of the parties; where that intent is unclear, as here, summary judgment is an inappropriate tool for dispute resolution. Mazaleski, 562 F.2d at 717 (summary judgment on question of motive); C. Wright & A. Miller, Federal Practice and Procedure § 2730 at 584-87 (1973). In reversing the grant of summary judgment, we are not unaware of the factors that no doubt prompted both the arbitrator and the trial judge to order the sale of the shares. If an “Event of Sale” could occur only within the first five years of Davis’ employment, then the inclusion of that phrase in a Paragraph headed “Disposition of Shares after Five Years” is a non-sequitur of classic dimension. Moreover, at oral argument counsel for appellees suggested that if an “Event” was not an occurrence mandating sale, the inclusion of that phrase in Paragraph 4 was without point; the language relating to Davis “desiring” to sell the shares would have encompassed all possibilities. These arguments notwithstanding, we feel that summary judgment was inappropriate. Each side has presented a differing, reasonable construction of the Stock Purchase Agreement. Bermuda law, which presumably would govern, permits the introduction of relevant evidence to shed light on the parties’ intent. Moreover, the credos of contract law cited by appellant — a document should be construed against the drafting party, and every word in an agreement should be given meaning — militate in favor of granting Davis his day in court. Brief for Appellant at 13-14. Finally, the appellant has steadfastly maintained that representations were made to him at the time the Agreement was executed that he would be permitted to remain in possession of the shares, regardless of his employment status, if he remained in the employ of the Company for five years. Although the parol evidence rule operates with vitality in Bermuda, the law of that nation provides that a contemporaneous oral representation may override inconsistent written terms. Thus, we hold that the trial court should, upon remand, conduct such proceedings with regard to Count I as may be appropriate to permit the parties to ventilate fully their respective positions. C. The Federal Securities Claims. In the second count of his complaint, Davis asserted that the effort made by appellees CCFL and B. Francis Saul, II, to require the return of the shares contravened oral representations made by CCFL employees at the time the Agreement was executed. As noted above, Davis alleged in his complaint that CCFL officials told him that if his service to the Company lasted for five years, he was free to keep the stock indefinitely, regardless of his employment status. Although one can glean only the outlines of appellant’s case from the complaint and briefs filed to date, presumably he contends that the alleged statements were false ones connected with the purchase or sale of a security, in violation of section 10 of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder. The district court granted appellees’ motion for summary judgment on the securities claims, stating that there was “no evidence” before it in support of Davis’ allegations. M.O. at 2; J.A. at 128. We believe that this ruling reflects a misunderstanding of the rule governing summary judgments in the federal system, Fed.R.Civ.P. 56, and of the applicable case law. As this court has recently had occasion to discuss the issues raised in this regard, our discussion may be brief. Appellant has alleged that CCFL officials made representations in 1973 that are inconsistent with the position that the Company later adopted with regard to Davis’ right to maintain ownership of the disputed shares. The appellees deny making any such representations. See Defendants’ Response to Plaintiff’s Statement Pursuant to Local Rule 1 — 9(g) at ¶ 2; J.A. at 113. There could hardly be a more patent example of a dispute involving a material fact; the representations at issue are the heart of appellant’s securities claims. Resolving this dispute in Davis’ favor, as we must at this stage, it is clear that summary judgment on Count II was inappropriate unless another rule or doctrine operates to deprive appellant of his day in court. Given the cursory discussion contained in the order dismissing the securities claims, it is difficult to discern why the district judge did not conclude that the dispute surrounding the alleged misrepresentations required denial of appellees’ motion. Presumably he relied on Fed.R.Civ.P. 56(e), which provides, in pertinent part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. It is true' that the appellant in this case offered only his complaint to buttress his securities claims, while CCFL responded with the text of the Agreement. The appellees contend that the “mere allegations” of Davis’ complaint are an insufficient basis for denying summary judgment; the district court apparently subscribed to this analysis. Appellees’ argument here, however, is without merit. As we noted in National Association of Government Employees v. Campbell, 593 F.2d 1023 (D.C.Cir.1978), it is beyond cavil that a party opposing summary judgment is required to proffer rebuttal affidavits or other evidence “only if its omission enables the movant to satisfy his burden of showing that no issue of material fact persists.” Id. at 1029. The Supreme Court has noted in this regard that “[w]here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970) (emphasis in original, footnote omitted) (quoting Advisory Committee Note on the 1963 amendment to Fed.R.Civ.P. 56(e)). We, of course, agree with the Campbell court’s admonition to parties and counsel that it is both preferable and advisable to come forward with rebutting materials, Campbell, 593 F.2d at 1029. It is clear, however, that where the pleadings themselves make clear the existence of a material factual controversy, summary judgment is precluded regardless of the dearth of “counter-active” materials submitted by the opposing party. Id. Appellees offer an alternative ground in support of the district court’s disposition of the securities claims. CCFL, relying on the arbitrator’s decision, contends that the doctrine of res judicata bars the appellant from relitigating an issue that necessarily was adjudicated in the prior proceeding. Appellees submit that the question whether the alleged oral representations were made was presented to the arbitrator and that the arbitrator’s rejection of the argument es-tops Davis from relitigating the same dispute in the masquerade of a securities claim. Given our disposition of the arbitrator’s decision, see Part IIA, supra, this contention need not detain us long. It is true, as appellees contend, that an arbitration decision can have res judicata effect, see, e.g., Maidman v. O’Brien, 473 F.Supp. 25, 29 (S.D.N.Y.1979), even if the underlying claim involves the federal securities laws, see Moran v. Paine, Webber, Jackson & Curtis, 389 F.2d 242, 245-46 (3d Cir. 1968). Such decisions can also have collateral estoppel effect where the legal theories vary between the two actions, but the first necessarily involved the litigation and determination of a matter raised again in the subsequent case. On the other hand, it is axiomatic that, before a judgment can have issue preclusive effect under the doctrines of either res judicata or collateral estoppel, that judgment must be valid, lb Moore’s Federal Practice ¶ 4.-1 at 634-39 (1980). As we noted above, see Part IIA, the arbitrator lacked the authority to construe the Agreement to determine Davis’ obligations under it; hence, any rulings he made regarding the meaning of the contractual terms and the alleged oral representations can have no issue preclusive impact. We hold, therefore, that-appellees’ motion for summary judgment on Count II was improperly granted and accordingly Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:
songer_appel1_7_5	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). John Edward REECE, Appellant, v. The STATE OF WASHINGTON and B. J. Rhay, as Superintendent of Washington State Penitentiary at Walla Walla, Washington, Appellees. No. 18022. United States Court of Appeals Ninth Circuit. Nov. 19, 1962. John Edward Reece, Walla Walla, Wash., appears in pro. per. for appellant. No appearance noted on behalf of ap-pellees. Before MAGRUDER, MERRILL and BROWNING, Circuit Judges. PER CURIAM. Appellant sought leave to file a complaint in forma pauperis naming the State of Washington and the Superintendent of the Washington State Penitentiary as defendants and purporting to allege a cause of action under the Civil Rights Act (42 U.S.C.A. §§ 1981, 1983). The complaint alleged that appellant was serving a prison sentence, the length of which was based upon an erroneous construction by the state court of the state statutes, fixing the maximum sentence for the offenses of which appellant was convicted. The District Court directed the Clerk to file the complaint without payment of fees but denied appellant’s motion to proceed in forma pauperis on the ground that the action was frivolous. We interpret the District Court’s order as a denial of the motion for leave to commence the action in forma pauperis, and its order permitting the complaint to be “filed” as intended simply to provide a complete record of the action taken. The District Court “may” authorize the commencement of a civil action in forma pauperis, and thereafter “may dismiss the case * * * if satisfied that the action is frivolous.” (28 U.S.C.A. § 1915(a), (d)). It follows that the District Court was authorized to deny leave to proceed in forma pauperis at the outset if it appeared from the face of the proposed complaint that the action was frivolous. Cf. Loum v. Underwood, 262 F.2d 866 (6th Cir., 1959); Taylor v. Steele, 191 F.2d 852 (8th Cir., 1951); Huffman v. Smith, 172 F.2d 129 (9th Cir., 1949). This authority is to be exercised with great restraint, and generally only where it would be proper to dismiss the complaint sua sponte before service of process if it were filed by one tendering the required fees. See Harmon v. Superior Court, 307 F.2d 796 (9th Cir., 1962). This was such a case. Appellant’s motions in this Court for appointment of counsel, for “default judgment,” and for an injunction are denied. The judgment of the District Court is affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_respond1_3_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 "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Your task is to determine which specific federal government agency best describes this litigant. Joseph C. SPAGNOLA, Jr. v. William MATHIS, Office of Management and Budget, et al., Appellants. Joseph C. SPAGNOLA v. William MATHIS, et al., Appellants. Joseph C. SPAGNOLA, Jr., Appellant, v. William MATHIS, Office of Management & Budget, et al. Michael E. HUBBARD, Appellant, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Administrator, et al. Nos. 84-5530, 84-5659, 84-5822 and 85-5145. United States Court of Appeals, District of Columbia Circuit. Argued April 29, 1987. Decided Sept. 30, 1988. George M. Chuzi, Washington, D.C., for appellant in No. 84-5822. Peter B. Broida, Washington, D.C., for appellant in No. 85-5145. Joseph B. Kennedy with whom Thomas M. Devine, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on the brief, for amici curiae, The Government Accountability Project and the American Civil Liberties Union of the National Capital Area urging affirmance of the panel decision in No. 84-5822. Stuart H. Newberger, Asst. U.S. Atty., for appellees in both cases, with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, Asst. U.S. Atty.,* R. Craig Lawrence, Michael L. Martinez and Scott T. Kragie, Asst. U.S. Attys., were on the brief for appellees in No. 85-5145, and with whom Joseph E. diGenova, U.S. Atty.,* Royce C. Lamberth * and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief for appellees in No. 84-5822. Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellees in No. 84-5822. Edith S. Marshall, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellees in No. 85-5145. Before WALD, Chief Judge, ROBINSON, MIKYA, EDWARDS, RUTH B. GINSBURG, BORK, STARR, SILBERMAN, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges. At the time the brief was filed. Judge Bork participated in the argument but not the decision in these cases. Opinion PER CURIAM. PER CURIAM: On December 5, 1986, two panels of this circuit issued separate, conflicting opinions regarding the availability of Bivens remedies to litigants challenging federal personnel actions for whom Congress has declined to provide full administrative remedies subject to judicial review under the Civil Service Reform Act (CSRA). See Hubbard v. EPA, 809 F.2d 1, 6-11 (D.C.Cir.1986); Spagnola v. Mathis, 809 F.2d 16, 19-28 (D.C.Cir.1986). On January 6, 1987, the full court vacated the conflicting portions of the two panel opinions and scheduled the matter for rehearing en banc. After argument, we ordered proceedings in these cases to be held in abeyance pending the Supreme Court’s disposition of a petition for certiorari in Kotarski v. Cooper, 799 F.2d 1342 (9th Cir.1986), a case presenting issues similar to those before us. We now decide, with fresh guidance from the Supreme Court, that “special factors counsel ]” against the creation of Bivens remedies in these circumstances. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 396, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971). Accordingly, we affirm the dismissal of appellants’ Bivens claims. I. The facts underlying the constitutional claims of Michael Hubbard and Joseph Spagnola are fully set forth in the respective panel opinions and need only briefly be recounted here. Appellant Hubbard, presently a detective with the District of Columbia Metropolitan Police Department, alleges that he was denied employment as a criminal investigator with the Environmental Protection Agency (EPA) because of his exercise of first amendment rights. In particular, Hubbard contends that the EPA and defendant Peter Beeson, an agency hiring official, rejected his job application due to reports that Hubbard had communicated with the press during an investigation of narcotics use by employees and members of Congress in 1981. Hubbard maintains that his communications with the press were “protected speech,” and that Beeson’s rejection of his application on the basis of such speech was in violation of the first amendment. In addition to seeking equitable relief against the EPA, Hubbard sought damages from Beeson personally under the Bivens doctrine. The district court held that Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), precludes a Bivens remedy in this situation, and accordingly dismissed Hubbard’s damages claim. Joseph C. Spagnola, Jr., an employee of the federal government at all times relevant to this action, sought damages and injunctive relief under the first amendment and 42 U.S.C. § 1985(1) (1982) against two officials for whom he worked in the Office of Federal Procurement Policy of the Office of Management and Budget (OMB). According to Spagnola, the defendants thwarted his efforts to gain promotion beyond the GS-14 level and conspired to prevent him from pursuing professional development in the area of government contracts in retaliation for his “whistleblow-ing” activities. Spagnola appealed from the district court’s dismissal of his Bivens claims for damages against the OMB officials. While the circumstances surrounding the first amendment claims of Hubbard and Spagnola differ markedly, the CSRA accords claimants in their respective positions substantially the same relief. Under 5 U.S.C. § 1206, each could petition the Office of Special Counsel (OSC) of the Merit Systems Protection Board (MSPB) alleging a “prohibited personnel practice.” See 5 U.S.C. § 1206(a)(1) (1982); see also 5 C.F.R. §§ 1250-61 (1988) (OSC regulations). If OSC, in its discretion, believed the allegations meritorious, it was required to report that along with any findings or recommendation of corrective action to the agency involved. If the agency failed to take action, the OSC could have requested the MSPB to order appropriate corrective action. See 5 U.S.C. § 1206(c)(1)(A) & (B) (1982). Irrespective of the course of action chosen by OSC, judicial review for Hubbard and Spagnola, if available at all, was limited to ensuring that OSC conducted the requisite “adequate inquiry” into the allegations. See Cutts v. Fowler, 692 F.2d 138, 140 (D.C.Cir.1982); 5 U.S.C. § 1207(c) (1982); see also Carducci v. Regan, 714 F.2d 171, 175 (D.C.Cir.1983). Neither Hubbard nor Spagnola could claim the more elaborate administrative protections — including judicial review — that Congress reserved for incumbent employees aggrieved by major personnel actions (e.g., removals, reductions in grade or pay, suspensions of more than 14 days). See 5 U.S.C. §§ 7511-14, 7701-03 (1982). Prior to initiating their federal actions, both Hubbard and Spagnola petitioned OSC for an investigation into alleged “prohibited personnel practices.” In each case, the claimants filed suit in district court before completion of the OSC investigation. OSC’s ultimate disposition of their petitions was, in any event, the same: it found insufficient evidence to suggest a “prohibited personnel practice” in either case. II. In the Bivens case itself, the Supreme Court acknowledged that the power to make policy concerning constitutional remedies was not the exclusive province of the judiciary. The court observed that where there is an “explicit congressional declaration” that injured parties should be “remitted to another remedy, equally effective in the view of Congress,” Bivens, 403 U.S. at 397, 91 S.Ct. at 2005, or where there are “special factors counselling hesitation in the absence of affirmative action by Congress,” id. at 396, 91 S.Ct. at 2005, the judiciary should decline to exercise its discretion in favor of creating damages remedies against federal officials. Accord Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). In deference to these concerns, the Court’s “more recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts.” Schweiker v. Chilicky, — U.S. -, 108 S.Ct. 2460, 2467, 101 L.Ed.2d 370 (1988). Indicative of this caution is Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), in which the Court, for the first time, found a statutory system of “comprehensive procedural and substantive provisions giving meaningful remedies against the United States,” id. at 368, 103 S.Ct. at 2406, to constitute a “special factor” counselling hesitation against creating a Bivens remedy. Id. at 389-90, 103 S.Ct. at 2417-18. In Bush, as here, the remedial provisions of the CSRA were at issue. Acknowledging that the CSRA’s “remedies [did] not provide complete relief for the plaintiff[ ]” in that case, id. at 388, 103 S.Ct. at 2417, the Court nevertheless declined to supplement the employee’s statutory remedies with a Bivens action. To the Court, the question before it was not one “concern[ing] the merits of the particular remedy that was sought.” Id. at 380, 103 S.Ct. at 2413. Rather, the question was “who should decide whether such a [damages] remedy should be provided[,]” Congress or the judiciary. Id. Ultimately, the Court reasoned that “Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service.” Id. at 389, 103 5.Ct. at 2417. Because he was challenging a “major personnel action,” the plaintiff-employee in Bush, unlike Hubbard and Spagnola, was able to invoke certain of the CSRA’s elaborate remedial processes which, by statute, culminate in judicial review. See 5 U.S.C. § 7703 (1982); Bush, 462 U.S. at 386-88, 103 S.Ct. at 2415-17. Whether the Court intended Bush to bar damages actions for those employees or applicants for whom the CSRA remedies are not so complete has been the source of great debate. Focusing on language in the Bush opinion that suggests a detached inquiry into the meaningfulness of the particular remedies provided to individual claimants under the CSRA, some courts of appeals have conducted that inquiry and have found certain CSRA remedies wanting. Accordingly, they have declined to read Bush as precluding Bivens remedies in those contexts. See, e.g., McIntosh v. Weinberger, 810 F.2d 1411, 1434-36 (8th Cir.1987) (holding that employee subjected to minor personnel action could sue supervisor for damages), vacated sub nom. Turner v. McIntosh, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 898 (1988); Kotarski v. Cooper, 799 F.2d 1342, 1348-49 (9th Cir.1986) (holding that probationary employee could pursue Bivens action against supervisor), vacated, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 897 (1988); see also Krodel v. Young, 748 F.2d 701, 712 n. 6 (D.C.Cir.1984) (suggesting in dictum that statutory right to petition OSC, without more, would not preclude a Bivens claim for damages), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985); Note, Bivens Doctrine in Flux: Statutory Preclusion of a Constitutional Cause of Action, 101 Harv.L.Rev. 1251, 1262-65 (1988) (arguing that OSC remedy is constitutionally inadequate). Other circuits, acting in the post-Bush environment, have reached the opposite conclusion. See Pinar v. Dole, 747 F.2d 899, 909 (4th Cir.1984) (declining to create Bivens remedy for employee subjected to short suspension), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 30 (1985); Hallock v. Moses, 731 F.2d 754, 757 (11th Cir.1984) (denying damages remedy to victim of “harassment and retaliation”). It was this very issue, whether case-specific analysis is required of the particular statutory remedies available to a claimant, over which the original panels in the cases before us disagreed. See Hubbard, 809 F.2d at 7-9; Spagnola, 809 F.2d at 22-24. The Supreme Court’s latest pronouncement on the special factors doctrine in Schweiker v. Chilicky, — U.S. -, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988), goes a long way toward resolving the debate. In Chilicky, the Court faced the question of whether Social Security disability claimants whose benefits had been withdrawn unconstitutionally could seek damages against those responsible for the termination. Petitioners, state and disability officials charged with conducting “continue ing disability reviews” pursuant to a 1980 congressional enactment, see Pub.L. 96-265, § 311, as amended, 42 U.S.C. § 421 (1982 & Supp. Ill), argued that in view of the comprehensive and elaborate review and benefit-restoration procedures available to claimants under the Social Security Disability Benefits Reform Act of 1984 (Disability Act), the Court should decline to provide a Bivens remedy in this context. The Court agreed, finding the case indistinguishable from Bush. 108 S.Ct. at 2468. Noting that the Disability Act’s “system for protecting [claimants’] rights is, if anything, considerably more elaborate than the civil service system considered in Bush,” id., the Court concluded that “Congress is in a better position to decide whether or not the public interest would be served by creating [a damages remedy].” Id. at 2469: Chilicky is significant not only for its holding, but also for its analysis of Bush. In applying the Bush “special factors” doctrine to the Disability Act claims before it, the Chilicky Court made clear that it is the comprehensiveness of the statutory scheme involved, not the “adequacy” of specific remedies extended thereunder, that counsels judicial abstention. Id. at 2467 (citing Bush for “[c]onclu[sion] that the administrative system created by Congress ‘provides meaningful remedies....’” (quoting Bush, 462 U.S. at 386, 103 S.Ct. at 2415) (emphasis added). Indeed, the Court remarked that “[t]he absence of statutory relief ... for a constitutional violation ... does not by any means necessarily imply that courts should award money damages against the officers for the violation.” Id. 108 S.Ct. at 2467 (emphasis added). If the comprehensiveness of a statutory scheme cannot be gainsaid and it appears that “congressional inaction [in providing fof damages remedies] has not been inadvertent[J” id. at 2468, courts should defer to Congress’ judgment with regard to the creation of supplemental Bivens remedies. As we read Chilicky and Bush together, then, courts must withhold their power to fashion damages remedies when Congress has put in place a comprehensive system to administer public rights, has “not inadvertently” omitted damages remedies for certain claimants, and has not plainly expressed an intention that the courts preserve Bivens remedies. In these circumstances, it is not for the judiciary to question whether Congress’ “response [was] the best response, [for] Congress is the body charged with making the inevitable compromises required in the design of a massive and complex ... program.” Id. at 2470-71. III. These general principles alone weigh heavily in favor of declining to create Bivens remedies for claimants situated as Hubbard and Spagnola were. We are further aided, however, by suggestions the Court provided in Chilicky as to how Bush applies to our cases. For in recounting the principal lesson of Bush—that the CSRA’s administrative system provides meaningful remedies and thus precludes Bivens actions against officials in their individual capacities—the Court included a citation implicitly suggesting that the preclusive effect of Bush extends even to those claimants within the system for whom the CSRA provides “no remedy whatsoever.” Id. at 2467. This passage not only squarely implicates the material facts of at least one of the cases before us today, it also further indicates that the Court regards a case-by-case examination of the particular administrative remedies available to a given plaintiff as unnecessary. Accordingly, the Court vacated two courts of appeals cases presenting issues nearly identical to those we confront today and remanded them “for further consideration in light of [Chilicky ].” See Cooper v. Kotarski, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 898 (1988) (mem.); Turner v. McIntosh, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 898 (1988) (mem.). One of the cases, McIntosh, involved allegations that an Army personnel official “had violated the [] due-process rights [of the plaintiff employees] by concealing and destroying certain merit-promotion records.” McIntosh v. Weinberger, 810 F.2d 1411, 1417 (8th Cir.1987), vacated sub nom. Turner v. McIntosh, — U.S. -, 108 S.Ct. 2861, 101 L.Ed.2d 898 (1988). The actions challenged by plaintiffs in that case, like the actions challenged by appellant Spagnola, constituted “minor personnel actions” for which the plaintiffs’ sole remedy under the CSRA was a petition to OSC. Id. at 1434-36. The plaintiff in Kotarski, an incumbent employee who claimed his removal from a probationary supervisorial position violated his fifth and ninth amendment rights, likewise was limited to an OSC petition under the CSRA. See Kotarski v. Cooper, 799 F.2d 1342, 1348-49 (9th Cir.1986), vacated, — U.S. -, 108 S.Ct. 2861, 101 L,Ed.2d 898 (1988). Although the Court’s orders vacating and remanding Kotarski and McIntosh cannot be regarded as a reversal, the Court’s disposition of these cases certainly counsels us to pay close attention to the developments in “special factors” analysis announced in Chil-icky. Furthermore, we do not believe the legislative history of the CSRA supports the application of Bivens remedies in the cases before us. After Chilicky, it is quite clear that if Congress has “not inadvertently” omitted damages against officials in the statute at issue, then courts must abstain from supplementing Congress’ otherwise comprehensive statutory relief scheme with Bivens remedies—unless, of course, Congress has clearly expressed a preference that the judiciary preserve Bivens remedies. See Chilicky, 108 S.Ct. at 2468. We find nothing in the legislative history suggesting that Congress’ omission of a damages remedy in the CSRA was anything but advertent, nor do we discern any clear expression of congressional intent that the courts preserve Bivens remedies. Concededly, the Court has provided few, if any, principles governing whether a particular claimant—and his underlying claim—should be included in a given congressional “comprehensive system” for purposes of applying “special factors” analysis. After Chilicky, of course, this issue has become critical. Nevertheless, while in some cases the outer boundaries for inclusion in “comprehensive systems” may be less than clear, there can be little doubt as to whether Congress has brought claims like those advanced by Hubbard and Spagnola within CSRA’s ambit. This is because the CSRA itself, in one fashion or another, affirmatively speaks to claims such as Hubbard’s and Spagnola’s by condemning the underlying actions as “prohibited personnel practices.” Thus, we are dealing with a statutory scheme that at least technically accommodates appellants’ constitutional challenges. See Carducci v. Regan, 714 F.2d 171, 175 (D.C.Cir.1983) (describing CSRA’s scheme for classifying personnel actions). IV. While we decline to extend Bivens remedies to Hubbard and Spagnola, we do not suggest that the CSRA precludes the exercise of federal jurisdiction over the constitutional claims of federal employees and job applicants altogether. But see Pinar v. Dole, 747 F.2d 899, 912 (4th Cir.) (holding that the CSRA forecloses judicial review of constitutional claims relating to “minor” personnel actions), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985); Hallock v. Moses, 731 F.2d 754, 757-58 (11th Cir.1984) (dismissing constitutional claim for equitable relief); Braun v. United States, 707 F.2d 922, 926-27 (6th Cir.) (dismissing claims for equitable relief under 5 U.S.C. § 702), cert. denied sub nom. Hardrich v. United States, 464 U.S. 991, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983); Broadway v. Block, 694 F.2d 979, 986 (5th Cir.1982) (holding that minor personnel actions are “committed to agency discretion by law” within meaning of 5 U.S.C. § 701(a)(2)). On the contrary, time and again this court has affirmed the right of civil servants to seek equitable relief against their supervisors, and the agency itself, in vindication of their constitutional rights. See, e.g., Hubbard v. EPA, 809 F.2d 1, 11 (D.C.Cir.1986); Williams v. IRS, 745 F.2d 702, 705 (D.C.Cir.1984); Cutts v. Fowler, 692 F.2d 138, 140-41 (D.C.Cir.1982); Borrell v. United States Int’l Comm. Agency, 682 F.2d 981, 989-90 (D.C.Cir.1982). Of course, to the extent any of these cases indicates that civil service employees may pursue Bivens remedies for the same violations, they are hereby disapproved. ****** In light of the Supreme Court’s holding in Schweiker v. Chilicky, we conclude that “special factors” preclude the creation of a Bivens remedy for civil service employees and applicants who advance constitutional challenges to federal personnel actions. Accordingly, we affirm the district courts’ dismissal of Hubbard’s and Spagnola’s Bivens claims. . Bivens v. Six Unknown Fed’l Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). . Pub.L. No. 95-454, 92 Stat. Ill (codified as amended in scattered sections of 5 U.S.C.). . The "prohibited personnel practices" Congress included in the CSRA remedial scheme are set forth at 5 U.S.C. § 2302. The definition sweeps broadly to accommodate the “tak[ing] or fail[ure] to take any ... personnel action if the taking or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.” 5 U.S.C. § 2302(b)(ll) (1982). One such merit principle provides: All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management ... with proper regard for their ... constitutional rights. 5 U.S.C. § 2301(b)(2) (1982). Both Hubbard’s and Spagnola's allegations implicate this principle squarely and we are therefore convinced that their constitutional claims are cognizable as "prohibited personnel practices” within the CSRA system. See Pinar v. Dole, 747 F.2d 899, 906 (4th Cir.1984), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985). See also H.R. Rep. No. 1717, 95th Cong., 2d Sess. 131 (1978) U.S.Code Cong. & Admin.News 1978, pp. 2723, 2853 (observing that "prohibited personnel practices” include violations of constitutional rights of applicants and employees). Hubbard argues that, as an applicant for federal employment, his claims were not appealable within the CSRA system, but the letter of the statute suggests otherwise. See 5 U.S.C. § 2302(a)(2)(A)(i) (1982) (including “an appointment” within the class of “personnel actions” covered by CSRA). . Hubbard, as a veteran, had the additional right to Office of Personnel Management (OPM) review of the "passover document" required to be prepared in the event a veteran is rejected for a federal job. See 5 U.S.C. § 3318(b)(1) (1982). At Hubbard’s request, OPM performed the required review and ultimately found no evidence that Hubbard was improperly passed over. . For instance, in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), the Court held that the "unique disciplinary structure of the Military Establishment and Congress’ activity in the field constitute ‘special factors’ which dictate that it would be inappropriate to provide enlisted military personnel a Bivens -type remedy against their superior officers.” 462 U.S. at 304, 103 S.Ct. at 2368. . In his opinion for the majority in Bush, Justice Stevens at two points appeared to suggest that the specific remedies extended under the CSRA to the petitioner were “meaningful.” See 462 U.S. at 368, 386, 103 S.Ct. at 2406, 2415; see also id. at 378, 103 S.Ct. at 2411 (observing that “[t]he existing civil service remedies for a demotion in retaliation for protected speech are clearly constitutionally adequate”). Nevertheless, the Court failed to set forth the standards it may have applied in forming such a conclusion. . The Chilicky plaintiffs, like those in Bush and unlike Hubbard and Spagnola, had available an obligatory, elaborate administrative process, with judicial review, through which they could secure retroactive restoration of the withdrawn benefits. See 42 U.S.C. § 423(f) & (g) (1982 & Supp.III); 108 S.Ct. at 2464. It is thus possible to distinguish Chilicky on the basis that the Court was not presented with claimants whose remedies under the congressional scheme were merely discretionary. We nevertheless believé, infra at pp. 228-29, that undertaking that effort runs counter to the clear direction of the Supreme Court's “special factors" reasoning. . The passage reads as follows: Concluding that the administrative system created by Congress “provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies,” ... the Court refused to create a Bivens action even though it assumed a First Amendment violation and acknowledged that "existing remedies do not provide complete relief for the plaintiff[.]” ... See also [Bush, 462 U.S.] at 385, n. 28, 103 S.Ct. at 2414, n. 28 (no remedy whatsoever for short suspensions or for adverse personnel actions against probationary employees). 108 S.Ct. at 2467 (citation and internal footnote omitted). . More precisely, it is one of the fact situations mentioned in the passage that we find comparable to one of our cases—Spagnola. Spagnola challenges a series of minor personnel actions, the class of which includes the "short suspensions” cited in the passage as entitling the recipients to “no remedy whatsoever.” 108 S.Ct. at 2467. The Court appears to say in Chilicky that the CSRA extends those aggrieved by minor personnel actions "no remedy whatsoever.” We have noted above, supra at pp. 225-26, as the original panels in these cases agreed, see Hubbard, 809 F.2d at 8; id. at 13 (Wald, J., dissenting); Spagnola, 809 F.2d at 20, that the Act entitles such claimants to the remedy (albeit a limited one) of an OSC petition. . The most that can be said for the legislative history of the CSRA is that Congress did not expressly intend to eliminate damages remedies. See generally H.Rep. No. 1717, 95th Cong., 2d Sess. 127-43 (1978); S.Rep. No. 969, 95th Cong., 2d Sess. 2-10 (1978). Nevertheless, while this may be relevant under the “explicit congressional declaration” exception to allowing damages remedies, see Bivens, 403 U.S. at 388, 91 S.Ct. at 1999, it has little relevance to the "special factors” exception after Chilicky. . As we have demonstrated above, supra n. 3, the actions challenged by Hubbard and Spagno-la are plainly cognizable under the CSRA as "personnel actions" and, in turn, as “prohibited personnel practices.” .The legislative history confirms that Congress’ inclusion of constitutional violations within the CSRA scheme was, at minimum, conscious. In describing the breadth of "prohibited personnel practices” under the Act, the House and Senate Conferees observed that should a supervisor take action against an employee or applicant without regard for the individual’s privacy or constitutional rights, such an action could result in dismissal, fine, reprimand, or other discipline for the supervisor. H.Rep. No. 1717, 95th Cong., 2d Sess. 131 (1978). . Judicial review, we caution, is limited to constitutional claims; as we have previously held, the CSRA precludes review of the nonconstitu-tional claims of civil service employees and applicants. See Carducci v. Regan, 714 F.2d 171, 175 (D.C.Cir.1983). 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 "O" thru "R"". Which specific federal government agency best describes this litigant? A. Occupational Safety & Health Administration B. Occupational Safety & Health Review Commission C. Office of the Federal Inspector D. Office of Management & Budget E. Office of Personnel Management F. Office of Workers Compensation Program G. Parole board or parole commisssion, or prison official, or US Bureau of Prisons H. Patent Office I. Postal Rate Commission (U.S.) J. Postal Service (U.S.) K. RR Adjustment Board L. RR Retirement Board Answer:
songer_respond1_3_3	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 first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant. Slater WILLIAMS, Plaintiff-Appellant, v. Robert P. FROEHLKE, Secretary of the Army, Defendant-Appellee. No. 229, Docket 73-1682. United States Court of Appeals, Second Circuit. Submitted Dec. 6, 1973. Decided Jan. 14, 1974. Paul J. Curran, U. S. Atty., S. D. N. Y. (Taggart D. Adams and V. Pamela Davis, Asst. U. S. Attys., of counsel), New York City, for defendant-appellee. Covington, Howard, Hagood & Holland, New York City (George Donald Covington and Lawrence S. Cumber-batch, New York City, of counsel), for plaintiff-appellant. Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge. Of the United States District Court for the Southern District of New York, sitting by designation. . As a matter of statutory construction, this has been held to embrace military jurisdiction over a member of the armed forces who committed a crime against a German civilian in Germany. Puhl v. United States, 376 F. 2d 194 (10 Cir. 1967). GURFEIN, District Judge. Slater Williams was a soldier serving in the United States Army in Germany. On July 12, 1960, while the country was at peace, Williams, in civilian clothes robbed a German citizen in Germany. He was tried by a general court-martial, and on September 25, 1960, convicted of robbery (10 U.S.C. § 922) , disrespect (10 U.S.C. § 891) and eomnfunieation of a threat (10 U.S.C. § 934). He was sentenced to five years at hard labor and a dishonorable discharge. Appellant served his term and then brought an action in the United States District Court for the Southern District of New York to compel defendant Froehlke, Secretary of the Army, to set aside his conviction and to order the Army Board for Correction of Military Records to grant him an honorable discharge. He based jurisdiction on 28 U.S.C. § 1361 (“in the nature of mandamus”). Williams contended that under O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1961), the court-martial had no jurisdiction to try him for the offense of robbery against a civilian while he was away from the Army post. He also asserted other grounds not pressed upon this appeal. The Secretary moved to dismiss the complaint, or for summary judgment, asserting inter alia, that (1) O’Callahan should not be applied retroactively; and (2) that, even if O’Callahan is applied retroactively, there was jurisdiction in the court-martial, because O’Callahan does not apply to courts-martial held outside the territorial limits of the United States. Judge Lasker, in a carefully considered opinion, granted the motion for summary judgment in favor of the defendant. He held that O’Callahan was retroactive in its application under the decision of this Court in United States ex rel. Flemings v. Chafee, 458 F.2d 544 (2 Cir. 1972), noting that certiorari had been granted sub nom. Warner v. Flemings, 407 U.S. 919, 92 S.Ct. 2461, 32 L.Ed.2d 805 (1972). Judge Lasker could not foresee, of course, that the Supreme Court would reverse this Court in Warner v. Flemings, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed. 2d 873 (1973), also cited as Gosa v. Mayden. He properly concluded that, since he was bound by the decision of this Court to the effect that O’Callahan was, indeed, retroactive, he was required to determine whether O’Callahan was to be applied extraterritorially. Judge Lasker decided that it was not. This appeal follows. We now face the issues: (1) Did a majority in the Supreme Court hold that O’Callahan was retroactive? (2) Assuming O’Callahan to be retroactive, did the court-martial have a constitutional as well as a statutory jurisdiction to try Williams for the crime of robbery committed against a German civilian in Germany? The decision of this Court in Flem-ings, supra, was reversed by a vote of 7 to 2. Four justices based the reversal upon the ground that O’Callahan was not to be applied retroactively, while Mr. Justice Stewart and Mr. Justice Douglas concluded, as did Mr. Justice Rehnquist in a separate opinion, that the crime involved in Flemings was “service connected” so as to support proper jurisdiction in the court-martial even under O’Callahan. In the companion case of Gosa v. Mayden, however, the sole issue was whether O’Callahan was to be applied retroactively, since the Government had conceded in the Court of Appeals “that the offense was not service connected.” 413 U.S. at 665, 93 S.Ct. at 2929. See Gosa v. Mayden, 450 F.2d 753 (5 Cir. 1971). The Supreme Court, squarely faced with the issue (which it had found unnecessary to decide in Relford v. United States Disciplinary Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971)) divided in Gosa v. Mayden, supra, on whether O’Callahan was to be applied retroactively. Four justices, the plurality opinion being written by Mr. Justice Blackmun, held that O’Callahan was not to be applied retroactively. Mr. Justice Marshall wrote a dissenting opinion, concurred in by Mr. Justice Brennan and Mr. Justice Stewart, in which he determined that O’Callahan must be applied retroactively because O’Callahan had decided that there was no constitutional jurisdiction in courts-martial to adjudicate nonservice-connect-ed offenses. Mr. Justice Rehnquist agreed that under controlling precedents O’Callahan would have retroactive effect, but voted to overrule O’Callahan. Mr. Justice Douglas did not reach the merits in Gosa because he believed that the issue was simply whether appellant’s failure to raise the O’Callahan issue in the military courts had made the matter res judicata. Since O’Callahan was not overruled, Mr. Justice Rehnquist must be counted with the dissenters in Gosa as believing that O’Callahan is retroactive. Mr. Justice Douglas’ view on the issue remains unexpressed. In these circumstances, sitting as an intermediate appellate court, we think that if this case can be decided without a specific ruling on whether O’Callahan is retroactive, we should do so. We affirm on the ground that, even if O’Callahan is retroactive, its reach does not extend to the jurisdiction of courts-martial in peace time to try non-service offenses committed by servicemen against foreign persons in foreign lands. The Uniform Code of Military Justice provides in Article 122 (10 U.S.C. § 922) that “[a]ny person subject to this chapter who . . . takes anything of value from [a] person . against his will, by means of force or violence ... is guilty of robbery . .” Williams was a person “subject to this chapter.” 10 U.S.C. § 802. And “[t]his chapter applies in all places.” 10 U.S.C. § 805. There is no doubt of the congressional intention to subject persons by virtue of their status as servicemen to military jurisdiction. Nor had there been serious question that military jurisdiction based on status was within the constitutional power of the Congress under Art. I, § 8, cl. 14 of the Constitution, “To make Rules for the Government and Regulation of the land and naval Forces.” Kinsella v. Singleton, 361 U.S. 234, 240-241, 243, 80 S.Ct. 297, 300, 4 L.Ed.2d 268 (1960), Reid v. Covert, 354 U.S. 1, 22-23, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). When the problem of jurisdiction over a nonservice-connected offense by a person in the armed services was presented in O’Callahan, the majority decision on “jurisdiction” could have been determined either on the basis of a lack of constitutional jurisdiction of the court-martial to adjudicate, — a true jurisdictional lack — or on the basis of a statutory interpretation that subjected the military competence to its narrowest terms consistent with Fifth and Sixth Amendment guarantees. If the nub of the decision were the former, its implication would be that the constitutional power granted to establish courts-martial did not extend to offenses which were not service connected. If the latter, “jurisdiction” would not be a matter of the competence of the tribunal to adjudicate, but rather, as Mr. Justice Douglas has told us recently, “jurisdiction” may mean a requirement that constitutional guarantees exist, even though the competence of the tribunal is otherwise assumed. See Gosa v. Mayden, supra, 413 U.S. at 689, 93 S.Ct. at 2941, and note 5. Since he was the author of O’Callahan, Mr. Justice Douglas’ gloss upon his own opinion implies that the plurality in that case was not thinking of lack of jurisdiction to try civilian offenses in the strict sense of a lack of tribunal competence, but rather as a balancing of individual rights against a conceded constitutional competence of the tribunal. His comment in Gosa that “petitioner was not tried by a kangaroo court or by eager vigilantes but by military authorities within the framework established by Congress in the Uniform Code of Military Justice” 413 U.S. at 689, 93 S.Ct. at 2941, supports this view. Mr. Justice Blackmun agreed that the question of O’Callahan had been “whether . . the exercise of jurisdiction by a military tribunal, pursuant to an act of Congress, over his nonservice-con-nected offense was appropriate when balanced against the important guarantees of the Fifth and Sixth Amendments.” 413 U.S. at 677, 93 S.Ct. at 2935. He rejected the notion that O’Callahan had held “that a military tribunal was and always had been without authority to exercise jurisdiction over a nonserviee-connected offense.” Id. Mr. Justice Marshall’s opinion, on the other hand, said that O’Callahan “can only be understood as a decision dealing with the constitutional limits of the military’s adjudicatory power over offenses committed by servicemen.” 413 U.S. at 694, 93 S.Ct. at 2943. With Mr. Justice Rehnquist wishing to overrule O’Callahan entirely, there seems to be a clear majority which believes that O’Callahan does not hold that there is an absolute lack of jurisdiction in military tribunals to try servicemen for nonservice-connected offenses. We in turn, then, adapt the technique of O’Callahan to determine the issue here presented. Is there an imbalance between Art. I, § 8, cl. 14 jurisdiction over soldiers who commit civilian offenses in peace time and the requirements of Article III and the Fifth and Sixth Amendments? We may assume first that the cases prohibiting the trial of civilians by military tribunals, cf. Reid v. Covert, supra, 354 U.S. at 81, 77 S.Ct. 1222, are not controlling, for appellant was not a civilian. We may also assume that Williams, as a soldier, came under the Art. I § 8 cl. 14 power of the Congress to regulate the land and naval forces. Reid v. Covert, supra, 354 U.S. at 20, 77 S.Ct. 1222. Nor do we doubt the power of the Congress to provide for the regulation of the land and naval forces when they are serving in foreign countries. Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 139-140, 3 L.Ed. 287 (1812); Coleman v. Tennessee, 97 U.S. 509, 515, 24 L.Ed. 1118 (1878). In United States ex rel. Toth v. Quarles, 350 U.S. 11, 23, 76 S.Ct. 1, 8 L. Ed. 8 (1955), the Court did instruct us, however, that “[determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to ‘the least possible power adequate to the end proposed.’ Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-231 [5 L.Ed. 242] (1821).” Recognizing the jurisdiction of our military courts in Germany to try military personnel for crimes committed there, the question is whether the power “would be adequate to the end proposed” if servicemen were immune from court-martial for civilian offenses committed abroad in peace time. The conflict between the individual right to be indicted by a Grand Jury (Fifth Amendment) and trial by jury (Sixth Amendment), on the one hand, against the court-martial jurisdiction, on the other hand, depends in the first instance on whether the individual rights sought to be preserved are available to the accused. In the O’Callahan case, the crime was committed in Hawaii, then a territory of the United States, where the right of jury trial and indictment by Grand Jury were available. Here the crime of robbery was committed in Germany. While constitutional rights may follow the soldier abroad, the Constitution itself does not provide him with an Article III federal court in the vicinage where he may be tried. Nor is robbery in a German city a federal crime presently cognizable by Article III courts, See United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922). Even though pursuant to the Constitution in Art. Ill, § 2, el. 3, the Congress can provide that where a crime is committed in no state, the defendant may be tried in the district to which he is first brought (18 U.S.C. § 3238) (Reid v. Covert, supra, 354 U.S. at 8, 77 S.Ct. 1222), there must still be federal criminal jurisdiction for a trial properly to occur in an Article III court. While Germany has agreed to consider waiving jurisdiction over the soldier where the crimes are in concurrent jurisdiction, NATO Agreement on Status of Forces, Art. VII(3); 4 U.S. Treaty Series 1792, 1800 (1953), it could not, of course, create a system of American courts for his trial. Under the treaty, the United States courts were assumed to be military courts. The Congress has neither provided for Article III Courts nor even for legislative courts to function in Germany; nor made the crime of robbery in Germany a federal crime, except as provided in the Code of Military Justice (10 U.S.C. § 922). The Supreme Court in Relford, supra, noted that O’Callahan had involved an offense committed “within our territorial limits [and] not in the occupied zone of a foreign country.” 401 U.S. at 365, 91 S.Ct. at 655. We think that the emphasis on individual rights in O’Callahan implied their application only within our territorial limits, and that it is not of consequence that Germany does not happen to be an “occupied zone of a foreign country,” Relford, supra, but a foreign country not under occupation. Toth v. Quarles, supra, concerned a civilian who had been discharged from the Army, and held that, as a civilian, he could not be tried by the military for a murder allegedly committed in Korea while he was in the service. The question involved did not relate to the fact that the alleged crime had been committed in a foreign country. The holding was that, having regained civilian status, he was not constitutionally amenable to military jurisdiction under Congressional power to regulate the armed forces. We think the constitutional defect was of status, not of situs. Toth did not concern itself with territorial jurisdiction. Since O’Callahan, the Fourth and Seventh Circuit Courts of Appeals, the Court of Claims and the Court of Military Appeals have each concluded by independent reasoning that there is no constitutional prohibition against the power of Congress to provide in a Code of Military Justice that general courts-martial shall try servicemen for offenses committed in foreign countries which are, concededly, not service connected. Wimberly v. Laird, 472 F.2d 923 (7 Cir. 1973); Bell v. Clark, 437 F.2d 200 (4 Cir. 1971); Gallagher v. United States, 423 F.2d 1371, 191 Ct.Cl. 546 (1970), cert, denied, 400 U.S. 849, 91 S.Ct. 58, 27 L.Ed.2d 86 (1970); United States v. Keaton, 19 U.S.C.M.A. 64 (1969). We think the Congress has the constitutional power under Art. I § 8 cl. 14 “to make Rules for the Government and Regulation of the land and naval Forces,” that such rules may provide for courts-martial and that there is no territorial limitation on where they may sit. We are left then with the question whether the limitations in the Fifth and Sixth Amendments must be applied, nevertheless, to limit that jurisdiction. The Court of Appeals for the Seventh Circuit in Wimberly v. Laird, supra, has held that because the soldier was in Germany as the result of his status as a member of the Army, there was a sufficient connection between his offense and his service status to characterize his crime as “arising within the land or naval forces” for purposes of the exception in the Fifth Amendment. We agree. The United States Army could hardly disinterest itself in crimes of violence committed against civilians by military personnel without impairing its mission. Gallagher v. United States, supra, 423 F.2d at 1373. And so far as the Sixth Amendment is concerned, there can literally be no “trial by an impartial jury of the State and district wherein the crime shall have been committed,” for no federal courts exist in Germany, and trials in the United States would not, in any event, have juries “of the State and district wherein the crime was committed.” The choice is, practically, between trial in a German civilian court and trial by an American court-martial. The witnesses are in Germany. To require their transportation to the United States is, in any event, beyond our power to command, for they are not subject to our process. It was undoubtedly thought a boon to the accused to permit his trial in a court-martial rather than in a foreign court where the soldier might be subjected to varying degrees of xenophobia. But assuming that the soldier feels, on the contrary, that he may be better off in a foreign court than in an Article I court-martial, there is no constitutional guarantee that says he has a right to be tried in the foreign court. Pursuant to the treaty power, the United States has given Germany priority in the trial of offenses committed within its territory, and reserved to itself, if there is a waiver, trial in the military tribunal, which is the only United States court available. We think there was no mandate on the Congress to create Article III courts to be the repositories of the concurrent jurisdiction with Germany under the treaty, even if the obvious international obstacles to their creation were overcome. Affirmed. . Article 122 of the Uniform Code of Mill tary Justice. . Jurisdiction is not challenged on this appeal. We note that in Warner v. Flemings, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), the Supreme Court assumed there was jurisdiction, for it decided the case on the merits. . The Hawaii Constitution, Art. 1, §§ 8, 11, adopted in 1950, required indictment by a Grand Jury and trial by jury. . The Agreement confers on each respective government exclusive jurisdiction over crimes which are cognizable under that government’s law, but which are not cognizable under the law of the other government. Concurrent jurisdiction between the sending and receiving states is recognized over all other crimes with the primary jurisdiction allocated according to the nature of the crime. In the case of robbery, Germany had primary jurisdiction which it waived. The waiver provision is valid. See Wilson v. Girard, 354 U.S. 524, 77 S.Ct. 1409, 1 L.Ed. 1544 (1957). . Although the nation is not in a “time of war or public danger,” that limit to the exception of the Fifth Amendment from courts-martial applies only to the militia, and not to “the land or naval forces.” Johnson v. Sayre, 158 U.S. 109, 115, 15 S.Ct. 773, 39 L.Ed. 914 (1895) ; see also Ex parte Mason, 105 U.S. 696, 701, 26 L.Ed. 1213 (1881). . The history of the statutory jurisdiction of courts-martial to try civil offenses committed by the military is recited in O’Callahm, supra, 395 U.S. at 271-272, 89 S.Ct. 1683. . Cf. Wilson v. Girard, supra, where the Supreme Court held that there was no constitutional right not to be tried in a foreign court. One cannot help wonder whether appellant at the time of his trial would have chosen a German court rather than an American military court. For a discussion of the acceptability of foreign civil courts as alternative tribunals, see Note, Military Law —Military Jurisdiction over Crimes Committed by Military Personnel Outside the United States, 68 Mich.L.Rev. 1016, 1039 (1970). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant? A. Department of Agriculture B. Department of Commerce C. Department of Defense (includes War Department and Navy Department) D. Department of Education E. Department of Energy F. Department of Health, Education and Welfare G. Department of Health & Human Services H. Department of Housing and Urban Development I. Department of Interior J. Department of Justice (does not include FBI or parole boards; does include US Attorneys) K. Department of Labor (except OSHA) L. Post Office Department M. Department of State N. Department of Transportation, National Transportation Safety Board O. Department of the Treasury (except IRS) P. Department of Veterans Affairs 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). NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, et al., Aluminum Association, Inc., Intervenors. NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Atchison, Topeka and Santa Fe Railway Co., et al., Institute of Scrap Iron and Steel, Inc., National Steel Corporation (79-1582) American Paper Institute, Inc. (79-1590), Intervenors. Nos. 81-1051, 79-1393, 79-1395, 79-1582, 79-1583, 79-1590, 79-1611, 79-1620, 79-1838, 79-1839, 79-1860, 79-1970 and 79-1984. United States Court of Appeals, District of Columbia Circuit. Argued April 27, 1981. Decided July 15, 1981. Edward L. Merrigan, Washington, D. C., for petitioner. Ellen K. Schall, Deputy Associate Gen. Counsel, I. C. C., Washington, D. C., with whom Richard A. Allen, Gen. Counsel and Robert S. Burk, Deputy Gen. Counsel, I. C. C., Washington, D. C., were on the brief, for respondent, Interstate Commerce Commission. John J. Powers, III and Kenneth P. Kolson, Attys., Dept. of Justice, Washington, D. C., entered appearances for respondent, United States of America. Michael Boudin, Washington, D. C., with whom Timothy A. Harr, James L. Tapley, Washington, D. C., James L. Howe, III, Richmond, Va., Harry N. Babcock, Cleveland, Ohio, Richard W. Kienle, Roanoke, Va., William C. Leiper and John A. Dailey, Philadelphia, Pa., were on the brief for intervenors, Association of American Railroads, et al. Dickson R. Loos, Washington, D. C., was on the Statement in lieu of brief, for intervenor, Aluminum Association. Edward L. Merrigan, Washington, D. C., was on the brief for petitioner National Association of Recycling Industries, in case No. 79-1393. David Reichert, Howard Gould and Stephen D. Strauss, Cincinnati, Ohio, were on the brief, for the petitioner Institute of Scrap Iron and Steel, Inc. in case No. 79-1395. John F. Donelan, and John K. Maser, III, Washington, D. C., for Armco, Inc., Inland Steel Co., Republic Steel Corp. and Youngstown Sheet and Tube Co., and Engene T. Liipfert, Fritz R. Kahn and L. John Osborn, Washington, D. C., for National Steel Corp. and Paul V. Miller, Bethlehem, Pa., for Bethlehem Steel Corp., were on the joint opening brief, for Armco, Inc., Inland Steel Co., Republic Steel Corp., and Youngstown Sheet and Tube Co. (petitioners in No. 79-1582), and Bethlehem Steel Corp. and National Steel Corp. (intervenors in No. 79-1582). John F. Donelan, John K. Maser, III, and Renee D. Rysdahl, Washington, D. C., were on the brief, for petitioner American Paper Institute, Inc., in case No. 79-1583. Michael Boudin, Timothy A. Harr, Washington, D. C., Richard W. Kienle, Roanoke, Va., and John A. Dailey, Philadelphia, Pa., were on the brief, for petitioner Railroads in case No. 79-1590. Dickson R. Loos, Washington, D. C., were on the brief for petitioner Aluminum Association, Inc., in case No. 79-1611. C. Michael Loftus, William L. Slover and Donald G. Avrey, Washington, D. C., were on the brief, for petitioner Fort Howard Paper Co., in case No. 79-1620. Robert N. Kharasch, Edward D. Green-berg, Washington, D. C., was on the brief, for petitioner Southern Paper Traffic Conference in case No. 79-1838, petitioner Southwestern Paper Traffic Conference in case No. 79-1839, petitioner Wisconsin Paper and Pulp Manufacturers Traffic Association in case No. 79-1860, and petitioner Western Paper Traffic Conference in case No. 79-1970. Michael M. Briley, Louis E. Tosi and Stephen B. Mosier, Toledo, Ohio, were on the brief, for petitioner Glass Packing Institute in case No. 79-1984. Robert S. Burk, Deputy Gen. Counsel and David Popowski, Atty., I. C. C., Washington, D. C., were on the brief for respondent, ICC. Kenneth G. Caplan and Frederick W. Read, III, Attys., I. C. C., Washington, D. C., also entered appearance for respondent, ICC. Barry Grossman, John J. Powers, III and Robert Lewis Thompson, Attys., Dept. of Justice, Washington, D. C., were on the brief, for respondent Department of Justice. Before MacKINNON and WALD, Circuit Judges, and RONALD N. DAVIES , United States Senior District Judge for the District of North Dakota. Sitting by designation pursuant to 28 U.S.C. § 294(d). Opinion for the Court filed by Senior District Judge RONALD N. DAVIES. RONALD N. DAVIES, Senior District Judge: Presenting a matter of statutory construction, the National Association of Recycling Industries, Inc. (NARI), in its petition for review of a final report and order of the Interstate Commerce Commission (Commission) issued December 30, 1980, Ex Parte 394, challenges the Commission finding that Section 204 of the Staggers Rail Act of 1980 is ambiguous. The Act, signed into law by the President October 14, 1980, was passed by Congress to provide guidelines under which the Commission would develop a new revenue-to-variable cost standard for certain recyclables: TRANSPORTATION OF RECYCLABLE MATERIALS SEC. 204. Section 10731 of title 49, United States Code, is amended by adding at the end thereof the following new subsection: (e) Notwithstanding any other provision of this title or any other law, within 90 days after the effective date of the Staggers Rail Act of 1980, all rail carriers providing transportation subject to the jurisdiction of the Commission under sub-chapter I of chapter 105 of this title shall take all actions necessary to reduce and thereafter maintain rates for the transportation of recyclable or recycled materials, other than recyclable or recycled Iron or steel, at revenue-to-variable cost ratio levels that are equal to or less than the average revenue-to-variable cost ratio that rail carriers would be required to realize, under honest, economical, and efficient management, in order to cover total operating expenses, including depreciation and obsolescence, plus a reasonable and economic profit or return (or both) on capital employed in the business sufficient to attract and retain capital in amounts adequate to provide a sound transportation system in the United States. As long as any such rate equals or exceeds such average revenue-to-variable cost ratio established by the Commission, such rate shall not be required to bear any further rate increase. The Commission shall have jurisdiction to issue all orders necessary to enforce the requirements of this subsection. On November 18, 1980, a notice was issued by the Commission instituting Ex Parte 394 for the purpose of establishing an average revenue-to-variable cost ratio. Also requested were comments on the Commission’s interpretation of the Act relating to rate reduction requirements: Section 204 requires the railroads, within 90 days, to take all actions necessary to “reduce and thereafter maintain” rates for recyclables, other than scrap iron and steel, at cost ratio levels equal to or less than the defined average ratio. This wording implies that the carriers are to reduce immediately any above-average recyclable rates. However, section 204 goes on to state that as long as a rate exceeds the average cost ratio, the rate cannot be increased. This suggests that rates do not have to be decreased immediately. This interpretation is supported by the Joint Explanatory Statement of the Committee of Conference, which states the bill would prohibit increases for rates which are currently above the threshold until such time as the rate falls below the average revenue-to-variable cost threshold. Because of the legislative history, we are inclined toward the interpretation that immediate reductions are not required. However, we invite the public to comment upon the question. In its final decision the Commission computed the average revenue-to-variable cost ratio to be 146% and concluded that “rates above the calculated average may not bear any further increases but need not be reduced.” In the present highly inflationary climate, the statutory prohibition against increasing rate levels is equivalent to a substantial constant dollar rate decrease. We conclude that the Congress had inflation in mind as the mechanism by which recyclable rates would be reduced to the threshold level. Rates currently above the threshold will, over time, fall below the average revenue-to-variable cost threshold by virtue of prohibiting increases to such recyclable rates. We think this interpretation is consistent with what we believe to be major Congressional policy objective of the Staggers Act. The new law is designed to eliminate unnecessary Federal regulation and permit railroad management to improve the revenue position of the railway system by adopting new service and pricing strategies to retain and attract traffic. Requiring rate reductions on such services as transportation of recyclables in an industry that is financially weak would be contrary to this overriding policy objective. Two of the five Commissioners participating dissented, contending that the Act clearly required rail carriers to immediately reduce and maintain rates equal to or less than 146% and if the reductions were averaged (by commodity and/or geographic level), individual rates would be both above and below 146% and those above would not be required to bear any further increases until they fell below the established ratio. We are fully aware of the deference due the construction placed on a statute by an agency charged with the responsibility for administering it. SEC v. Sloan, 436 U.S. 103, 98 S.Ct. 1702, 56 L.Ed.2d 148 (1978); Train v. Natural Resources Defense Council, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975); Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). However, to accord deference is not to abdicate our duty to construe the statute, for “the courts are the final authorities and ‘are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.’ ” SEC v. Sloan, supra; Ft. Pierce Utilities Authority v. United States, 606 F.2d 986 (D.C.Cir. 1979), cert. denied, 444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54. In any case concerning the interpretation of a statute the “starting point” must be the language of the statute itself, Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), and it is a fundamental principle of statutory construction that “ ‘effect must be given, if possible, to every word, clause and sentence of a statute.’ . . . so that no part will be inoperative or superfluous, void or insignificant.” In re Surface Min. Regulation Litigation, 627 F.2d 1346 (D.C.Cir.1980) quoting from 2A Sutherland, Statutory Construction § 46.06. The first sentence of Section 204(e) is clear, explicit and mandatory. It requires all rail carriers, within 90 days after the effective date of the Act, to “take all actions necessary to reduce and thereafter maintain rates ... at revenue-to-variable cost ratio levels that are equal to or less than ...” the average ratio of 146% established by the Commission. If the Commission had so ordered and followed its past practice of requiring rate reductions to be averaged by commodity and/or geographic area, as suggested by the dissenting commissioners, the second sentence becomes equally clear and explicit. Simply stated, it merely prevents any single rate that “equals or exceeds” 146% to be increased until it has gone below that level. The Commission’s interpretation, in contrast, gives unwarranted emphasis to the phrase “equals or exceeds” to justify a strained interpretation resulting in negation of the Congressional mandate contained in the first sentence. This construction ignores the requirement that every statute must be viewed in its entirety so that each part has a sensible and intelligent effect harmonious with the whole. It is not to be presumed that Congress intended any part of a statute to be without reasonable meaning. Payne v. Panama Canal Co., 607 F.2d 155 (5th Cir. 1979). To interpret Section 204 in the manner suggested by the Commission would render the first sentence not only superfluous but also meaningless in light of what Congress sought to achieve, an immediate reduction in rates. Nor can we countenance the Commission’s effort to justify its order by relying on what it believed to be a major Congressional policy objective of the Act. While it is true that its overall purpose is to provide the opportunity for railroads to obtain adequate earnings, it is equally true that Section 204 requires the Commission to enforce its requirements “notwithstanding any other provision of this title or any other law . . . . ” Congress deliberately chose to single out recyclable or recycled materials, other than iron or steel, for special treatment and thereby created a specific exemption from the general purpose of the Act. While we feel that Section 204(e) is free from ambiguity, our interpretation comports with congressional purpose as evidenced in its legislative history. Its predecessor was introduced by NARI during hearings held by the Senate Committee on Commerce, Science and Transportation while considering Senate bill S. 1946, the Railroad Policy Act of 1979. NARI’s proposal, with minor changes, was incorporated into the bill: (e) Not withstanding any other provision of this Act or any other statute, within ninety days after enactment of the Railroad Transportation Policy Act of 1979, all rail carriers subject to jurisdiction of the Interstate Commerce Commission shall take all actions necessary to reduce and thereafter maintain rates for the transportation of recyclable or recycled materials at revenue-to-variable cost ratio levels that are equal to or less than the average revenue-to-variable cost ratios initially established and thereafter published annually by the Commission pursuant to Section 102 of the Railroad Transportation Policy Act of 1979 and any such rate which equals or exceeds the average revenue-to-variable cost ratio established by the Commission as aforesaid shall not be required to bear any further rate increases. The Interstate Commerce Commission shall have jurisdiction to issue all orders necessary to enforce the requirements of this Subsection. In its Report on the bill, Sen. Rep. 96-470, 96th Cong., 1st Session (1980), the Committee stated: The freight rate issue has been a key in legislation attempting to encourage increased recycling as a way to mitigate the problem of energy and resource conservation. Rail freight rates are an important factor in the economics of recycling. Often the rates on these commodities equal or substantially exceed the value of the recyclable materials and thereby make it economically impossible for these materials to be marketed competitively. This is inconsistent with the national interests incorporated in and comprise the focal point of the energy resource legislation described above. This Committee and Congress, through section 603 of the Regional Rail Reorganization Act of 1973 and section 204 of the 4R Act, issued statutory mandates to the Interstate Commerce Commission to remove all unreasonable, discriminatory freight rates for recyclables. Congress’ concern then, as it is now, was with the disparity of rates charged to ship recyclable and competing virgin materials. Unless such rate disparities were cost justified, they were to be eliminated without regard to the railroad’s general revenue needs. The need for this additional legislation arises because the Interstate Commerce Commission initially failed to properly comply with the clear congressional mandates, with the result that its proposed actions were unanimously reversed, vacated and set aside by the United States Court of Appeals in Washington in 1978. [National Ass’n. of Recycling, etc. v. I.C.C., 190 U.S.App.D.C. 118, 585 F.2d 522 (1978), cert. denied, 440 U.S. 929, 99 S.Ct. 1266, 59 L.Ed.2d 485.] In response to the court’s remand of (sic) the Interstate Commerce Commission recently proposed to place a “cap” on freight rates for recyclables at 180 percent of variable cost. At the time this “cap” was imposed it exceeded the average revenue/variable cost level for all traffic moving by rail by 53 points, the rebuttable market dominance presumption under the Commission’s rules by 20 points and approximately 30 points above the reasonable levels that would be fixed by section 102 of S. 1946. The Committee notes that the Department of Justice, the Department of Energy and the Environmental Protection Agency have all filed briefs in opposition to the ICC’s proposed cap. It is therefore the Committee’s belief that after a full 6 years since the clear mandate to remove those economic barriers to the promotion of recyclable materials was first issued, it is now necessary to insure reasonable and nondiscriminatory rate levels on these vital commodities by statutory proscription. The Committee’s provision is quite simple: it merely reduces the Commission’s cap on recyclables from the 180 percent revenue/variable cost ratio level to the ratio level established by section 102 of S. 1946. At the estimated level of 140 percent to 160 percent, to be established under this section, the railroads would receive revenues that exceed their variable costs by 40 percent to 60 percent and at that level they should be able to make a profit on this recyclable traffic. At this level, neither the railroads nor any other traffic will be “subsidizing” recyclables. This traffic will be paying its full way — including all costs, plus a reasonable rate of return to the railroads. It is the Committee’s intent that the railroads be afforded their full cost plus a reasonable return on the movement of recyclables and therefore the applicable ratio under this provision will be recomputed by the Commission each year, just as the same ratio is to be recomputed annually under section 102 of the bill. This level, however, will represent a “maximum level of reasonableness” for recyclables, and as long as rates charged for the transportation of these materials of such vital importance to the United States are at this level, there can be no further rate increases above such revenues to variable cost ratios. It is obvious that the Committee, in adopting Section 204, expected (1) that “within 90 days ... all rail carriers . . . shall take all action necessary to reduce and thereafter maintain rates ... at revenue-to-variable cost ratio levels equal to or less than the average revenue-to-variable cost ratio . . .(2) that the ratio would thereafter be recomputed annually, and (3) that if, in any given year, a rate was equal to or exceeded the recomputed ratio, “such rate shall not be required to bear any further rate increase.” The Senate bill, as amended, was passed by Congress as the Staggers Rail Act of 1980. The most important change in relation to Section 204 was the deletion of the requirement that the revenue-to-variable cost ratio be recomputed annually. No specific reason was given for this action by the Committee of Conference, House Conference House Report No. 96-1430, 96th Cong. 2d Sess. (1980), U.S.Code, Cong. & Admin. News, 1980, pp. 3978, 4128: Senate bill. — The Senate bill requires that rates for recyclable or recycled materials be no higher than the average revenue to variable cost ratio of all rates for railroad transportation. Any rate which exceeds that threshold shall not be required to bear further rate increases. House amendment. — No provision. Conference substitute. — The Conference substitute adopts the Senate bill with certain changes. The substitute excludes recyclable or recycled iron and steel from this provision. Rates which are currently above the threshold would be prohibited from increases until such time as the rate falls below the average revenue to variable cost threshold. The standard for establishing the average revenue to variable cost threshold is the standard used in the Senate bill. In response to the Commission’s invitation for comments on its proposed interpretation that “immediate reductions are not required,” both the House and Senate sponsors of the Act submitted letters in which they, in most emphatic terms, stated that it was the intent of Congress that immediate reductions in rates were required on recyclables and that thereafter the rates were to be maintained below the level established annually by the Commission. While post-passage remarks of legislators cannot serve to change the legislative intent of Congress expressed before the Act’s passage, Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), post hoc interpretations by the principal sponsors are entitled to some consideration. Citizens to Save Spencer Cty. v. U. S. Environ., etc., 600 F.2d 844 (D.C.Cir.1979). The Commission realized that the revenue-to-variable cost ratio would have to be recomputed and so stated in its notice instituting proceedings in Ex Parte No. 394: Although section 204 does not specifically direct the Commission to develop this average ratio, it does state that the Commission shall have jurisdiction to issue all orders necessary to enforce the requirements of the section. The legislative history also indicates that Congress intended the Commission to establish the standard. H.R.Rep.No.96-1430, 96th Cong., 2d Sess. 96 (1980); S.Rep.No.96-470, 96th Cong., 1st Sess. 18-19, 33-34, 51, 61-62 (1979). We anticipate periodic recalculations of the average ratio. (Emphasis added.) The Commission’s only error was in not requiring the railroads to immediately reduce rates for the transportation of recyclable or recycled materials to the 146% level. It necessarily follows that railroads are required to immediately reduce rates and, once this has been accomplished, thereafter maintain rates at levels equal to or less than the ratio level periodically recomputed by the Commission. We vacate the order entered in Ex Parte No. 394, maintain our continuing jurisdiction and remand for immediate action consistent with this opinion. . In No. 79-1393, we reviewed a final report and order of the Commission, Ex Parte No. 319, and in our decision, National Ass’n. of Recycling Industries v. I. C. C., 627 F.2d 1328 (D.C. Cir.1980), modified sub nom., Consolidated Rail Corp. v. National Association of Recycling Industries, Inc., 449 U.S. 609, 101 S.Ct. 775, 66 L.Ed.2d 776 (1981), we retained jurisdiction and ordered the Commission to comply with Congressional directives by determining a level of reasonableness for rates on recyclables and to define permissible remedies for discrimination. Stressed was “the importance of expedition as mandated by Congress in section 204” of the Railroad Revitalization and Regulatory Reform Act of 1976. Motions seeking orders directing the Commission to take affirmative action were filed by the National Association of Recycling Industries, Inc., and jointly by Armco, Inc., Inland Steel Company, Republic Steel Corporation, and Youngstown Steel & Tube Company. To expedite review, we entered an order consolidating No. 79-1393 with No. 81-1051, the instant case. After the motion was filed and our order of consolidation entered the Commission instituted further proceedings in Ex Parte 319 and urged “the parties to be as helpful as possible in their comments so that we may conclude this proceeding expeditiously.” Our consideration of the motions, pending a final report and order by the Commission, would be premature and therefore the motions are denied. . Pub.L. 96-448, 94 Stat. 1895, codified 49 U.S.C. § 10731(e). . The revenue-to-variable cost ratio is the ratio of the revenue generated by the commodity to a portion of the total cost of carrying the commodity, i. e., those costs that vary with the volume of traffic. Brief of Intervenors, Association of American Railroads, et al„ N. at p. 4. . Designated, with certain exceptions, as October 1, 1980. . See National Ass’n. of Recycling Industries v. I.C.C., supra, N. 1. 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_appel2_1_3	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 appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. UNITED STATES of America, Appellant, v. The BOARD OF SUPERVISORS OF ARLINGTON COUNTY; Arland Towers Co.; Twin Development Corporation; Theodore B. Gould, Appellees. UNITED STATES of America, Appellee, v. TWIN DEVELOPMENT CORPORATION, Appellant, and The Board of Supervisors of Arlington County; Arland Towers Company; Theodore B. Gould, Defendants. UNITED STATES of America, Appellee, v. ARLAND TOWERS COMPANY, Appellant, and The Board of Supervisors of Arlington County; Twin Development Corporation; Theodore B. Gould, Defendants. UNITED STATES of America, Appellee, v. The BOARD OF SUPERVISORS OF ARLINGTON COUNTY, Appellant, and Arland Towers Company; Twin Development Corporation; Theodore B. Gould, Defendants. Nos. 79-1288-79-1290 and 79-1292. United States Court of Appeals, Fourth Circuit. Argued Oct. 4, 1979. Decided Dec. 20, 1979. Maryann Walsh, Dept, of Justice, Washington, D. C. (Richard G. Robbins, Asst. Sol., Anatolij Kushnir, Dept, of Interior, Terrence M. O’Connor, Asst. Gen. Counsel, National Capital Planning Commission, James W. Moorman, Asst. Atty. Gen., Carl Strass and Andrew F. Walch, Dept, of Justice, Washington, D. C., on brief), for appellant/appellee. Jerry K. Emrich, Arlington County Atty., Arlington, Va., Francis A. McDermott, Fairfax, Va. (John J. Sabourin, Jr., Hazel, Beckhorn & Hanes, Fairfax, Va., on brief), and Robert T. Lasky, Mark C. Ellenberg, Washington, D. C. (Cadwalader, Wickérsham & Taft, Washington, D. C., on brief), for appellees/cross appellants. Before WINTER and RUSSELL, Circuit Judges, and FIELD, Senior Circuit Judge. DONALD RUSSELL, Circuit Judge: This is an action by the United States in its proprietary capacity to enjoin further progress in the construction of certain business structures in Arlington County, Virginia. As originally framed, the complaint asserted a right to such injunctive relief because the buildings, which are in process of construction, (1) violated the height and density limitations for buildings as classified in the applicable zoning ordinance of the County and (2) created a public nuisance by their interference with the skyline of the Potomac Basin. The United States has, on this appeal, abandoned the second ground on which it sought relief and has confined its right to relief to the claim that the County Board of Supervisors of Arlington County exceeded its powers under the County zoning ordinance in approving the site plans and in issuing use permits for the construction of the buildings. It claims standing in its proprietary capacity to assert this claim because it owns land in the County and, like any other landowner in the County, may object to a violation by the County authorities of their local zoning ordinances. The defendants, who are the County Board of Supervisors and the two corporate ventures engaged in the construction of the projects, deny any violation of the County zoning ordinances either by the Board of County Supervisors in approving the projects or by the builders in proceeding, under that approval, with construction under the use permits issued on the basis of that approval. They also contend, by way of an affirmative defense, that the United States, when it sues in its proprietary as distinguished from its sovereign capacity, is subject to the ordinary rules of equitable estoppel and laches and that, both as a matter of general equity and of Virginia statutory law, it is estopped to enjoin further progress in the construction. The district court found no occasion to decide the defendants’ estoppel or laches claim since it concluded that the approval of the site plans and the issuance of the use permits by the County Supervisors complied with the terms of the County zoning ordinance. It is from this ruling that the United States has appealed, contending that the order of the district court erred in “sustaining the Site plan approvals for Arland Towers and Twin-Gould as consistent with and authorized by the Arlington County zoning ordinance.” Since we agree with the district court’s construction of the ordinance, we affirm without reaching the defendants’ affirmative claim. What this appeal poses for decision is a simple construction of a County zoning ordinance. The authority of the Board of Supervisors of the County under State law to enact a zoning ordinance, with fixed classifications, is clearly stated in the appropriate state statutory law. This authority may encompass the power to regulate the height and size, among other things, of any building which may be erected within any authorized classification. The state statutes, however, permit the Board of Supervisors, acting in a legislative capacity, to reserve unto itself “the right to issue . . . special exception^] or use permit[s]” which will alter, modify, or increase any height provisions for buildings qualifying under any classification. Section 25 of the zoning ordinance placed a height limitation of twelve (12) stories or 153 feet for office buildings, and sixteen (16) stories or 180 feet for apartments and motel buildings, erected within a C-0 classification. It also required the site plans for any building qualifying under the Section to be submitted and “approved as provided in Section 36, Subsection H.” Under subsection H. 5, however, the County Board reserved to itself the power “to modify the uses permitted” under Section 25 under certain circumstances of which the pertinent ones are: a. In considering such modification, the County Board may take into consideration (1) Provisions made for open space and other environmental amenities; (2) Grade, direction and intensity of traffic on adjacent streets; (3) Relationship to adjacent existing or permitted uses and buildings; (4) Particular dimensions, grade and orientation of the site, (5) Particular construction problems and techniques; and (6) the other provisions of Section 36, Subsection H. b. In considering the approval of a site plan including apartments, the County Board may permit additional height, not to exceed six (6) stories, providing the Board judges that a variety of housing units and design would result thereby. Consideration of such design may include, but not be limited to, the provision of family housing units, housing for the elderly and such variety of design as provided by townhouse or terraced construction in association with the highrise development. c. In considering the approval of a site plan including apartments, the County Board may permit additional height, one (1) or more stories up to a maximum of six (6) stories, and/or additional apartment density not to exceed ten (10) percent providing that the Board judges (1) that ten (10) percent of the total residential units which would otherwise be allowed on the site qualify as moderate income housing units, and (2) that adequate guarantees exist as to the continued availability of such units to families of moderate income. New moderate income housing units may be constructed either on-site or at appropriate off-site locations approved by the County Board or may be provided by means of in lieu tax relief/rent supplement payments at levels approved by the County Board. (A. & E. 4-14-73) d. In considering the approval of an office, motel or apartment site plan, the County Board may permit additional height, not to exceed three (3) stories, and/or additional density, not to exceed 0.25 F.A.R. in an office structure, or ten (10) percent in a motel or apartment structure, providing the Board judges that a contribution to required community facilities has been provided. Consideration of such facilities may include, but not be limited to, the provision of space for a library, fire station, public school facility, public transit facility, or a community recreation or health center. Such community facilities may be provided at appropriate off-site locations. e. Under no circumstances shall any combination of the incentives provided in subparagraphs b. through d. above be interpreted to allow additional height in excess of a maximum of six (6) stories, or additional residential density in excess of ten (10) percent. The buildings which the defendant-builders proposed to construct were in the C-0 classification as fixed by Section 25 of the ordinance. However, they exceeded the height limits as generally declared in that section for buildings qualifying under the C-0 classification. The builders recognized this and, in filing their site plans as required by Section 25, they requested the approval of their proposed construction and the issuance of use permits allowing the construction of the structures described with the heights therein shown pursuant to Section 36 H. 5. The Board, acting in its legislative capacity, approved the site plans as filed and issued the requested use permits under the authority reserved to it under Section 36 H. 5. It is the position of the Government that, conceding that the County Board under Section 36 H. 5, had a clear right, in its legislative capacity, to modify the height limitations fixed in Section 25 for buildings qualifying under that section, such power of the Board to modify was strictly limited by subparagraph d. of Section 36 H. 5. Under its construction of subparagraph d., the power of the Board to grant use permits allowing increases beyond the precise height limits fixed by Section 25 for any C-0 classified building was strictly limited to no more than three (3) stories above the limits fixed in Section 25, i. e., twelve (12) stories for office buildings and sixteen (16) stories for apartments and motel buildings. Admittedly the structures covered by the use permits in this case would exceed those limits, if subparagraph d. is a proper limitation upon the Board’s power. It is the contention of the defendants, however, that the grants of the use permits were validly made under the authority of and in full compliance with the provisions of subparagraph a. of Section 36 H. 5, which subparagraph they urge is entirely separate from and independent of subparagraph d. It follows from the statement of the conflicting positions of the parties that the single issue is whether subparagraph a. of Section 36 H. 5 is a grant of authority to the Board which is not limited by subparagraph d. of 36 H. 5. We agree with the district court’s basic conclusion that subparagraph d. does not limit the Board’s power of modification under subparagraph a. of Section 36 H. 5. We do so on the basis of the legislative history of the two subparagraphs, the language itself of the several subparagraphs of subsection 5, the obvious contradictions in the subsection that would follow from the adoption of the Government’s argument, and the consistent construction of the subsection by the Board of Supervisors over a period of many years. We turn first to the legislative history of the two subparagraphs. Subparagraph a., in one form or another, has been a part of the zoning code since 1962. It granted a general authority applicable to any type of construction meeting the specific criteria set forth in it. It covered a structure which met the specifications fixed in Section 25, and it was often applied without question in granting exceptions to the height limitations established in Section 25. On the other hand, subparagraph d. was adopted by the Board of Supervisors in 1972 as a part of an ordinance which embraced sub-paragraphs b. through e. of subsection 5. That ordinance, of which subparagraph d. is a part, was introduced, to quote the language of the official minutes, in order “to provide incentives for moderate income housing units and other amenities.” This legislative purpose was restated in the preamble of the ordinance itself: To provide incentives to developers who provide moderate income housing units, a variety of housing units, contributions to open area, recreational space, other environmental amenities, and required community facilities . And the language of the several sections of this 1972 addition (subparagraphs b. through d. of subsection 5) seeks to carry out this purpose. Thus, what was codified as subparagraph b. authorized height variations up to six stories for apartments providing “family housing units” and “housing” for the elderly. Subparagraph c. allows for a height variation of six stories for apartments, a substantial percentage of which was to be guaranteed as continuously available for “families of moderate income.” Subparagraph d. gives a bonus of three additional stories for an office, motel, or apartment structure, provided “the Board judges that a contribution to required community facilities [later defined to include ‘space for a library, fire station, public school facility, public transit facility, or a community recreation or health center’] has been provided” by the builder. It appears fairly obvious from this legislative history that subparagraphs b. through d. of subsection 5 had a purpose, separate and distinct from that of old subparagraph a., a purpose to provide “incentives” in promoting the construction of a very particular, rather than a general, type of construction. These subparagraphs accordingly established new and different criteria to be employed in applying these new subparagraphs. And, to show that these subparagraphs were intended as a special provision, applicable only to the type of construction intended to be encouraged, rather than as a limitation upon or related to subparagraph a., the ordinance in subparagraph e., the over-all limiting subparagraph, very specially restricted such limitation to the powers granted the Board by subparagraphs b. through d., thereby showing an intention to treat subparagraphs b. through e. as something quite separate from a. A consideration of the language of the several subparagraphs suggests even more forcefully than does this historical background of the subparagraphs of the subsection the separateness of subparagraph a. from the other subparagraphs of the subsection and even, subject to the limitation of subparagraph e., the separateness of sub-paragraphs b., c., and d. themselves. Thus, there is but one subparagraph (/. e., subparagraph e.) which limits specifically any other subparagraph, and this subparagraph with its limiting provision appears by express language to apply only to subparagraphs b. through d. and significantly was not to apply to subparagraph a. And this limiting subparagraph was added because without it the authority to modify height restrictions and to permit the additions of stories allowed in the several subparagraphs of b. through d. could be combined, and the Board did not wish to permit this, so far as moderate income housing only was concerned. Plainly, if the Board had intended to limit its power under a., it would also have included a. within the limiting language of e. The significant absence of subparagraph a. from the limiting language of subparagraph e. is strong evidence that the new ordinance of 1972 was not to act as a limitation on the powers of the Board under subparagraph a. There is, however, a stronger reason for finding that subparagraph d. was not intended as a broad prohibition on any use permit issued under subparagraph a. and allowing a variation of more than three stories beyond the height limits fixed by Section 25. To accept the Government’s argument that subparagraph d. limited the power by the Board to provide for height modifications under subparagraph a. would amount to holding that d. limited the power of the Board to grant height'modifications under subparagraphs b. and c. also. This is so because, under the Government’s argument, subparagraph d., with its limitation of three stores applies to any “office, motel or apartment site plan.” Both subparagraphs b. and c. refer to site plans for buildings falling within such description and would, by the logic of the Government’s argument, be as completely covered by the limitation of three-stories as would subparagraph a. Yet, such a construction would manifestly contradict both subparagraphs b. and c., since it would, by its three story limitation, completely nullify the authority in the Board to grant increases of six stories for buildings qualifying under subparagraphs b. and c. The Board manifestly never intended such a contradiction in the subparagraphs of the subsection; it clearly intended, on the contrary, that each subparagraph in the subsection was to be treated as providing the Board with a separate, distinct, and independent power, except as subparagraphs b., a., and d. were restricted by subparagraph e. Finally, we look to the consistent construction placed on the'various subparagraphs of subsection 5, since when an administrative agency, acting in a legislative capacity, proceeds to apply its own administrative rules or ordinances, thereby giving to them its construction of their application, that construction is to be given great weight. The Board offered in evidence a uniform application of the subsection by the Board for many years. This record established that the Board had always construed subparagraph a. as entirely separate from subparagraphs b. through e., and, specifically, that subparagraph d. was unrelated to, and not a limitation upon the authority of the Board under subparagraph a. Such a long continuous construction of the ordinance is a strong support for the district court’s conclusion. After considering all the above factors, we are convinced that the district court was correct in finding that subparagraph d. of Section 36 H. 5 did not limit or restrict in any way the power of the Board of Supervisors under subparagraph a. It is true subparagraph a. requires the Board, upon granting a modification under that subparagraph, to consider certain specified factors. The record, however, demonstrates that the Board did give reasonable consideration to all these factors in reaching the decision which the Government assails. Under those circumstances, it cannot be said the Board, in its action approving these site plans and granting the use permits, acted unreasonably or arbitrarily in that its action was not in strict accord with its valid power under the zoning ordinance. Since we have found that the action of the Board of Supervisors was valid, we, like the district court, find it unnecessary to decide the claim of equitable estoppel asserted by the defendants. See, however, United States v. Lazy FC Ranch, (9th Cir. 1973) 481 F.2d 985, 27 A.L.R.Fed. 694; United States v. Georgia-Pacific Company, (9th Cir. 1970) 421 F.2d 92, and Note, Equitable Estoppel of the Government, 79 Colum.L.Rev. 551 (1979). The judgment of the district court is accordingly AFFIRMED. . Virginia Code, § 15.1-486 (1978). . Virginia Code, § 15.1-486(b) (1978). . Byrum v. Board of Sup’rs, (1976) 217 Va. 37, 225 S.E.2d 369, 372-73. . Virginia Code, § 15.1-491(c) (1978). . Belle-Haven Citizens Association, Inc. v. Schumann, (1959) 201 Va. 36, 109 S.E.2d 139, 142. . Bollinger v. Bd. ofSup’rs of Roanoke County, (1976) 217 Va. 185, 227 S.E.2d 682, 684. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_appel2_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 second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant. Samuel COHEN et al., Defendants, Appellants, v. COLE NATIONAL CORPORATION, Plaintiff, Appellee. No. 6196. United States Court of Appeals First Circuit. Heard Nov. 6, 1963. Decided Sept. 2, 1964. Arthur M. Gilman, Boston, Mass., with whom Walter H. McLaughlin, Boston, Mass., was on brief, for appellants. Bertram H. Loewenberg, Boston, Mass., with whom Timothy H. Donohue, Stephen A. Hopkins and Sherburne, Powers & Needham, Boston, Mass., were on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. WOODBURY, Chief Judge. The so-called “golden car key” is a gold plated automobile key having a monogram on one side of its head and an emblem or advertising message on the other. The keys are sold by manufacturers as blanks, sometimes directly to users but for the most part in quantity to business concerns for them to use as gifts to customers for advertising or promotional purposes. The blank keys are cut by the purchasers on key filing machines, sometimes supplied by the manufacturer, to ■fit the car of the person to whom a key is presented. The “golden car key”, hereinafter ■sometimes referred to as a key, was ■originally developed in 1952 or 1953 by an Ohio corporation in the advertising ¡specialty business which later merged with another Ohio corporation, the plaintiff, Cole National Corporation, and thereafter operated as Cole National’s Elnar Division. In January or February 1959 a principal officer of Elnar, one Kap-stein, entered into an agreement with the ■defendants, Cohen and Sulkin, citizens of Massachusetts, who a short time before had organized a partnership called Allied Associates. For convenience we shall hereinafter refer to the parties as Elnar and Allied. Under the terms of this agreement Allied was to be the sole representative for the sale of Elnar’s keys in New England with the exception of two existing distributors. Allied was free to sell keys outside New England but, in order to avoid conflicts with other distributors, only after clearing such sales with Elnar. Elnar sold keys to Allied for less than it sold its keys to others and allowed Allied to sell keys under its own name and to fix its own resale price. The evidence is conflicting as to whether Allied was to have the status of a “distributor” of Elnar’s keys and also as to whether it was to buy all its keys from Elnar. Allied forwarded its orders to Elnar and Elnar filled them by sending keys to Allied’s customers in envelopes marked with Allied’s name and mark. Beginning in March, 1959, Allied with Elnar’s advice and assistance devoted substantial efforts to selling keys to financial institutions at which it was gratifyingly successful. On November 15, 1959, Elnar notified Allied by letter that effective a month later its price on orders of less than 2500 keys would be increased and that a separate charge would be made for “art work.” Allied objected and a conference was held at which it was agreed that the charge for “art work” would be cancelled but the price increase would go into effect. In spite of the price increase Allied was still paying less for keys than Elnar’s distributors. Early in 1960 Allied ordered dies for cutting key blanks from Hazelton Chain Co. of Roxbury, Massachusetts, and on June 7, 1960, ordered 45,000 key blanks from Hazelton which were shipped beginning in July of that year. These keys bore the same identifying letters, A, B, C, and D, in the same style of type that Elnar was using and were shipped to customers in the same kind of envelopes that Elnar used. There is a dispute as to whether in some instances Hazelton keys were cut by customers on key filing machines owned and supplied by Elnar. In July or August, 1960, Kapstein noticed a sharp decline in Allied’s orders and at a conference arranged to discuss that matter was told by partner Sulkin that business was bad in the summer but that he expected improvement in the fall. Sulkin admitted that he did not at that time tell Kapstein of Allied’s order of keys from Hazelton, and apparently Kap-stein’s suspicions were not aroused. In November, when Allied’s orders had practically ceased, at another conference partner Cohen admitted to Kapstein that Allied had another source of supply, and friendly relations between Elnar and Allied came to an abrupt end. Elnar joined its distributors in battle with Allied, by that time incorporated in Massachusetts as Emblematics, Inc., for the golden car key business, and on December 21, 1960, brought suit against Cohen, Sulkin and Emblematics, whom for convenience we shall continue to refer to as Allied, for breach of contract, alleging that Allied had agreed to purchase keys exclusively from Elnar and charged Allied with unfair competition. Allied answered with a general denial and later filed an amended counterclaim in two counts. In the first count Allied sought triple damages under 15 U.S.C. § 15 for violation of §§ 1 and 2 of the Sherman Act as amended, 15 U.S.C. §§ 1 and 2, and in the second count sought damages for unfair competition. Trial by jury resulted in a verdict for the plaintiff on its complaint and also a verdict for the plaintiff on the defendants’ counterclaim. The court entered judgment in accordance with the verdicts and the defendants appealed. The gist of the plaintiff’s action was that it had entered into a manufacturer-distributor relationship with the defendants whereunder it sold keys to the defendants according to an agreement that the latter would purchase and sell the plaintiff’s keys exclusively. It sought and recovered damages on the basis that the defendants had broken their agreement by purchasing keys from another source. The defendants rested their defense on the proposition that the relationship created was not that of manufacturer-distributor but instead that of seller-customer and that, in any event, they had not agreed to buy keys exclusively from the plaintiff. The verdicts of the jury settled the issues presented by the complaint and answer, for on this appeal the defendants do not challenge the verdict for the plaintiff on its complaint. The defendants’ appeal is limited to their counterclaim. It is based exclusively on asserted errors of the trial court in excluding certain evidence offered by them in support of their counterclaim and on asserted errors of the court in its instructions to the jury on the law applicable to their counterclaim. The plaintiff as appellee asserts that the court’s rulings on evidence and its instructions to the jury were correct. But it says that we need not concern ourselves with those matters because the trial court ought to have granted its motion for a directed verdict on the counterclaim on the ground that the evidence offered by the defendants was insufficient to warrant a finding for the defendants on either count. We agree with the appellee’s second proposition. We are very doubtful indeed whether “golden car keys” constitute a “relevant market.” But however that may be, a careful analysis of the record fails to-show any contract, combination in the form of trust or otherwise or conspiracy by Elnar in restraint of trade or commerce among the several states. Nor does the record show any monopoly or attempt to monopolize, or combination or conspiracy by Elnar with any other person to monopolize, any part of the trade- or commerce among the several states, if, indeed, golden car keys could possibly be monopolized. Witness Allied’s purchase of keys from Hazelton. The most that we can find in the record appendices-is evidence of vigorous, at times sharp,, competition between Elnar’s distributors-backed by Elnar and Allied. At times-the participants fought over the same customer, and on one occasion Kapstein-. wrote to one of Elnar’s distributors saying that the news of Sam Cohen in the-hospital “is not my desire as I just want, to put him out of business.” But evidence that Kapstein acting for Elnar put his wish into effect by unfair competitive means is lacking. It is true that, after the break in relations between El-nar and Allied in November, 1960, Elnar made available to its distributors a list of prospective customers submitted by Allied for clearance by Elnar to avoid conflicts with other distributors. But the evidence shows nothing more than the normal reaction of a former supplier forced to become a competitor by the wrongful breach of its distributor. The attempts by Elnar to compete for the customers who had previously purchased its keys through Allied, and whose business was by the jury’s verdict as much its property as that of Allied, do not strike us as improper. The most we can find is evidence of tough but not unfair competition. The motion to dismiss Allied’s counterclaim should have been granted. If there were errors in the exclusion of evidence or in the charge with respect to the counterclaim they are of no consequence. Judgment will be entered affirming the judgment of the District Court. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant? A. auto, auto parts, auto repairs B. chemical C. drug D. food E. oil, natural gas, gasoline F. textile, clothing G. electronic H. alcohol or tobacco I. general merchandise J. other K. unclear Answer:
songer_weightev	B	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". Laura GASPAR and Ken Nykiel, Plaintiffs-Appellees, v. DOWELL DIVISION, DOW CHEMICAL COMPANY and ABC Insurance Company, Defendants-Appellants. No. 83-3667. United States Court of Appeals, Fifth Circuit. Jan. 17, 1985. Lemle, Kelleher, Kohlmeyer & Matthews, Richard B. Foster, New Orleans, La., for defendants-appellants. Conner & Martinez, Joseph P. Williams, Jr., Metairie, La., for plaintiffs-appellees. Before GEE, POLITZ and HIGGIN-BOTHAM, Circuit Judges. GEE, Circuit Judge: Laura Gaspar and Ken Nykiel (the “plaintiffs”) brought this action against Dowell Division, Dow Chemical Company (Dow) and its insurer ABC Insurance Company alleging that one of Dow’s boats damaged a boat that the plaintiffs claim to own. After a bench trial the district court found for the plaintiffs and awarded them $18,000 in damages. We reverse. I. This case arises out of a collision that allegedly occurred between a tug owned by Dow and a boat docked alongside the plaintiffs’ shrimp boat, known as the MISS CONDUCT or the MARINA MAE. In the fall of 1981 the MISS CONDUCT was continuously moored to a cement slab on the Doullute Canal at Empire, Louisiana. The M/V SAND BAY was moored alongside the MISS CONDUCT and the M/V CHERYL LEE was moored outboard of the M/V SAND BAY. Laura Gaspar’s brother Michael was living aboard the MISS CONDUCT during this time. The M/V CANDICE L was a 59-foot, 900-horsepower model bow tug operated by Dow. On December 9, 1981, she was in command of a licensed operator, Captain V.J. Copous, pushing a 135-foot work barge and returning to her Venice, Louisiana, base after completing a job on a drilling rig in Grand Bastion Bay. As the CANDICE L was transiting the Doullute Canal into the Mississippi River and approaching the Empire Locks, Captain Copous had to wait for a supply boat locking through in the other direction. Captain Copous stopped the barge on the right bank of the Doullute Canal, holding the bow of the barge against the bank. The CANDICE L was at least 200 feet away from the MISS CONDUCT and the other boats moored alongside the concrete dock. After the supply boat had passed, Captain Copous “twin screwed” the barge out into the canal. This involved putting the starboard engine ahead and the port engine in reverse to pivot the barge sideways into the canal. The CANDICE L was not required to back up during this maneuver. Once the CANDICE L had entered the Empire Locks, Michael Gaspar appeared on the lock wall and shouted at Captain Copous. Captain Copous invited Gaspar aboard. Gaspar said that he had been sleeping aboard the MISS CONDUCT when he was awakened by a bump, looked out of the cabin, and saw the CANDICE L in the locks. Gaspar accused Copous of backing into the CHERYL LEE. Although Copous did not believe he could have hit the CHERYL LEE, Copous sent his wheelman, Ted Terrebonne, back with Gaspar to investigate. Gaspar took Terrebonne to the three boats tied up at the cement slab and told Terrebonne that the CANDICE L had struck the CHERYL LEE, the outside vessel. Terrebonne went aboard the CHERYL LEE but saw no evidence of a collision, and Gaspar pointed out no specific damage to the boat. Gaspar did not ask Terrebonne to inspect either the SAND BAY or the MISS CONDUCT. After Terrebonne left and the CANDICE L resumed her journey, the MISS CONDUCT began to take on water. This activated the boat’s automatic bilge pumps, but these pumps were unable to remove the water fast enough to prevent the boat from sinking. The MISS CONDUCT continued to take on water, sinking six days after the incident with the CANDICE L. Aside from borrowing a gasoline pump several days after the alleged collision to attempt to pump out the MISS CONDUCT, Gaspar did nothing to prevent the boat from sinking, nor did he or the plaintiffs attempt to raise the MISS CONDUCT for repairs. Aside from filing a Coast Guard report the day after the incident, neither Gaspar nor any plaintiff did anything about the sunken MISS CONDUCT until the plaintiffs filed this action in the district court thirteen months after the alleged collision occurred. In their complaint the plaintiffs alleged that the CANDICE L had collided with the CHERYL LEE, causing the CHERYL LEE to strike the SAND BAY and the SAND BAY to strike the MISS CONDUCT. Dow maintained that no collision occurred. After a bench trial the district court found that the CANDICE L had collided with the CHERYL LEE and had caused the MISS CONDUCT to sink. The court awarded the plaintiffs $18,000 in damages despite uncontroverted expert testimony that the MISS CONDUCT was worth only $2,500. This appeal followed. II. Dow contends that the district court erred in finding that the CANDICE L struck the CHERYL LEE and damaged the MISS CONDUCT. Under rule 52(a) of the Federal Rules of Civil Procedure, we may not set aside a district court’s findings of fact unless the findings are “clearly erroneous.” This rule applies to actions in admiralty in the same manner as it applies to other civil actions. Guzman v. Pichirilo, 369 U.S. 698, 702, 82 S.Ct. 1095, 1098, 8 L.Ed.2d 205, 209 (1962); Union Oil Co. of California v. Tug MARY MALLOY, 414 F.2d 669, 670 (5th Cir.1969). Applying the clearly erroneous standard and following rule 52(a)’s requirement of giving “due regard ... to the opportunity of the trial court to judge the credibility of the witnesses,” we conclude that the district court erred in finding that the CANDICE L collided with the CHERYL LEE. All of the evidence presented at trial suggests that no collision occurred. The plaintiffs’ only witness who was at the scene of the alleged collision, Michael Gas-par, testified that he did not see the CANDICE L strike the CHERYL LEE. Both Captain Copous and Ted Terrebonne of the CANDICE L testified that they did not believe their boat had struck or could have struck the CHERYL LEE. Because the CANDICE L was engaged in the “twin screw” maneuver at the time the collision allegedly took place, the crew of the CANDICE L likely would have seen any collision occur. Also, under the section of the Coast Guard report titled “Recommendations for Corrective Safety Measures Pertinent to this Casualty,” Gaspar wrote “inforce [sic] strict wake law.” This suggests that Gaspar did not believe that a collision involving the CANDICE L was responsible for the damage to the MISS CONDUCT. Gaspar’s speculative testimony regarding the collision is the only evidence presented at trial to support the court’s conclusion that a collision occurred. We hold that this evidence is not sufficient to support a finding for the plaintiffs on this issue. III. Dow also contends that the district court clearly erred in finding that the value of the MISS CONDUCT was $18,000. The plaintiffs testified at trial that Ken Nykiel purchased the MISS CONDUCT for a Harley-Davidson motorcycle worth $5,000 and $15,000 cash. The plaintiffs, however, produced no bill of sale reflecting this transaction. See supra note 1. Dow called Robert L. Stickney, an experienced marine surveyor, as an expert witness. Mr. Stickney testified that he had examined the MISS CONDUCT, that the boat was unsuitable for shrimping in Louisiana waters, and that the value of the MISS CONDUCT before she sank was approximately $2,500. Aside from their testimony regarding the MISS CONDUCT’S purchase price, the plaintiffs produced no evidence suggesting that the MISS CONDUCT was worth more than $2,500. Nevertheless, the district court discredited the testimony of Dow’s expert and found that the MISS CONDUCT’S value was $18,000, stating that the motorcycle given in exchange for the boat was worth only $3,000. We agree with Dow that the district court erred in finding the MISS CONDUCT worth $18,000. The correct measure of damages in suits involving injuries to personal property is not the purchase price of the chattel, but the amount necessary to restore the damaged property to the same condition as existed immediately before the injury occurred. City of New Orleans v. American Commercial Lines, Inc., 662 F.2d 1121, 1124 (5th Cir.1981). The plaintiffs presented no evidence regarding the value of the MISS CONDUCT immediately before the alleged collision. Although the district court as a finder of fact was free to discredit the testimony of Dow’s expert, the plaintiffs’ scant evidence did not provide the court with a sufficient basis to conclude that the MISS CONDUCT was worth $18,000 immediately before sinking. IV. Even if the plaintiffs had'presented sufficient evidence to support a verdict in their favor on the collision and valuation issues, the plaintiffs would not be entitled to their judgment because of their entire failure to mitigate damages. The law is well settled that a vessel owner has a duty to minimize damages to the vessel. See, e.g., Southport Transit Co. v. Avondale Marine Ways, 234 F.2d 947, 954 (5th Cir. 1956); Todd Shipyards Corp. v. Turbine Service, Inc., 467 F.Supp. 1257, 1300 n. 26 (E.D.La.1978), aff'd in part & rev’d in part, 674 F.2d 401 (5th Cir.), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982); In re Sincere Navigation Corp., 327 F.Supp. 1024, 1026 (E.D.La.1971). See generally Restatement (Second) of Torts § 918 (1977) (“One injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort.”). Here, aside from a single attempt to pump water out of the MISS CONDUCT, the plaintiffs made no attempt to keep the boat from sinking, even though the MISS CONDUCT remained afloat for six days after the alleged collision. After the boat sank, the plaintiffs simply allowed the MISS CONDUCT to remain on the bottom of the canal, refusing to pay the approximately $300 a shipyard across the canal would have charged to raise and repair the boat. Although the plaintiffs contend that they had insufficient funds to finance the repair of the MISS CONDUCT, Laura Gaspar’s 1981 federal income tax return indicates that her tattoo business generated a cash flow that would have enabled her to make the repairs. We cannot permit the plaintiffs to recover for damage to the MISS CONDUCT that the plaintiffs could have avoided with a minimal expenditure of time and money. For the foregoing reasons, the judgment of the district court is reversed and judgment is here rendered for the appellant. REVERSED. . Although the issue was not addressed at length at trial, there is apparently some dispute as to whether the plaintiffs actually own the MISS CONDUCT. The plaintiffs testified that Ken Nykiel purchased the MISS CONDUCT from Daniel Tharp in October 1981 for a Harley-Davidson motorcycle worth $5,000 and $15,000 cash, with Laura Gaspar furnishing the motorcycle (which belonged to her "old man” Bama) and $5,000 cash. The plaintiffs, however, produced no bill of sale for this transaction. The plaintiffs later prepared a handwritten document that indicated Laura Gaspar's half interest in the boat. This document bears a notarial seal dated November 10, 1981. Furthermore, although Laura Gaspar claimed to have borrowed some of the cash she used to purchase the MISS CONDUCT and to have taken the rest from her tattoo business, her 1981 federal income tax return shows net losses from her tattoo shops and insufficient income to account for the investment. Nykiel produced no financial records. . In the following exchange at trial, Copous, under examination by the court, "admitted" that he was not absolutely certain at the time that the CANDICE L did not strike the CHERYL LEE: Q. Okay. Captain Copous, I believe you testified in response to Mr. Foster’s question that you did not hit any other boat, is that correct? A. That’s correct, sir. Q. If that is the case why did you send your deckhand back with Mr. Gaspar to inspect— A. That is normal procedure with my company and with myself. I always want to check things out. I could not leave, sir, without finding out something. Q. So, in your own mind then you admitted the possibility anyway that the boat could have been struck, is that correct? A. No, sir, not by me, sir. Q. Not by you? A. No, sir. Q. And the only reason you had for sending the deckhand back to inspect the boats at that time is because it’s company policy? A. Not necessarily company policy. It’s just a good seamanship to make sure that, you know, on my part and — that is the way I am, I just make sure that everything is in order and I don’t— Q. Well, if you were sure it was in order, sir, why did you send the deckhand back? A. Because I wanted to make sure, I don’t know, I do it all the time if I see somebody in trouble I go help them, that is just the way I am, sir. Q. But you sent the deckhand back you said to make sure that none of the vessels were struck, is that correct? A. Yes, sir. Q. So in your own mind you weren’t sure that any of those vessels had been struck? A. In my own mind, sir. I am sure I didn’t hit it. Q. I am talking about at the time of this incident. A. Would you repeat that, sir. Q. At the time of this incident when you sent the deckhand back to inspect these vessels you were not completely sure that these vessels had not been struck, is that correct? A. Not by me, sir. THE COURT: That is not the answer to the question. THE WITNESS: I am sorry, sir. I didn’t quite understand him. THE COURT: I have to think that you understand the question. You sent the deckhand back to check it when the guy came up and complained? THE WITNESS: Yes, sir. THE COURT: So his question to you at that time since you sent the man back to check it you must have not been sure that it didn’t strike it? THE WITNESS: Okay, yes, sir, all right. THE COURT: Were you sure at that time that your vessel did not strike? THE WITNESS: No, sir, I am not sure. First Supplemental Record on Appeal at 22-25. This exchange indicates that Copous satisfactorily answered the plaintiffs’ attorney’s question regarding Copous’ state of mind at the time of the alleged collision. When the court told Copous that he had answered incorrectly, Copous apparently became confused and gave the court the answer he believed the court wanted. This "admission” certainly is not persuasive evidence that a collision occurred and does not support a finding for the plaintiffs on this issue. 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:
songer_district	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". SGAMBATI v. UNITED STATES. No. 142, Docket 21194. United States Court of Appeals Second Circuit. Feb. 3, 1949. Paul Kastenbaum, of New York City (Jacob Rassner and Jack Steinman, both of New York City, of counsel), for appellant. John F. X. McGohey, of New York City (Martin J. Norris, of New York City, of counsel), for appellee. Before AUGUSTUS N. HAND, CLARK, and FRANK, Circuit Judges. FRANK, Circuit Judge. The only question here is whether the statute was tolled during the period of infancy. In Osbourne v. United States, 2 Cir., 164 F.2d 767, 768, we said: “Generally, where a statute creates a cause of action which was unknown at common law, a period of limitation set up in the same statute is regarded as a matter of substance, limiting the right as well as the remedy. Filing a complaint within the prescribed period is a condition precedent to recovery, and the cause of action is extinguished after the running of the period. The general rule, developed chiefly with respect to the Federal Employers' Liability Act, §§ 1-10, 45 U.S.C.A. §§ 51-60, has. been applied also to the period of limitations in the Jones Act, [46 U.S.C.A. § 688], which incorporates the period in the Employers’ Liability Act, and to the Suits in Admiralty Act. The practical results of the application of this rule have been that the period of limitation under any of the three statutes will control the time for bringing suit in a state court regardless of state statutes of limitations; that the period of limitation under any of these Acts will not be extended, as it would be in the case of an ordinary statute of limitations, ‘by a claimant’s disability to sue because of infancy or insanity or by a delay occasioned by the fraud of the defendant; and that the defendant cannot waive the defense of the period of limitations.” We see no reason to depart from that statement. The plaintiff could have sued by a next friend within the two years. New York Central & H. R. R. Co. v. Tonsellito, 244 U.S. 360, 37 S.Ct. 620, 61 L.Ed. 1194. The unusual ground for exception to the statutory period we found to exist in the Osbourne case (i. e., impossibility of access to the courts within the period) was absent here. Affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained 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. HUDDLESTON v. UNITED STATES No. 72-1076. Argued November 7, 1973 Decided March 26, 1974 BlacicmuN, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, Stewart, White, Marshall, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 833. Harvey I. Saferstein argued the cause and filed briefs for petitioner. Danny J. Boggs argued the cause for the United States. With him on the brief were Solicitor General Bork, .Assistant Attorney General Petersen, and Jerome M. Feit. Mr. Justice Blackmun delivered the opinion of the Court. This case presents the issue whether IS U. S. C. § 922 (a) (6), declaring that it is unlawful knowingly to make a false statement “in connection with the acquisition . . . of any firearm . . . from a . . . licensed dealer,” covers the redemption of a firearm from a pawnshop. I On October 6, 1971, petitioner, William C. Huddleston, Jr., pawned his wife’s Winchester 30-30-caliber rifle for $25 at a pawnshop in Oxnard, California. On the following October 15 and on December 28, he pawned at the same shop two other firearms, a Russian. 7.62-caliber rifle and a Remington .22-caliber rifle, belonging to his wife. For these he received loans of $10 and $15, respectively. The owner of the pawnshop was a federally licensed firearms dealer. Some weeks later, on February 1, 1972, and on March 10, Huddleston redeemed the weapons. In connection with each of the redemptions, the pawnbroker required petitioner to complete Treasury Form 4473, entitled “Firearms Transaction Record.” This is a form used in the enforcement of the gun control provision of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat. 225, as amended by the Gun Control Act of 1968, Pub. L. 90-618, 82 Stat. 1213, of which the above-cited 18 U. S. C. § 922 (a) (6) is a part. Question 8b of the form is: “Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter — a yes answer is necessary if the judge could have given a sentence of more than one year.)” The question is derived from the statutory prohibition against a dealer's selling or otherwise disposing of a firearm to any person who “has been convicted in any court of ... a crime punishable by imprisonment for a term exceeding one year.” 18 U. S. C. §922 (d)(1). Petitioner answered “no” to Question 8b on each of the three Forms 4473. He then affixed his signature to each form's certification that the answers were true and correct, that he understood that a person who answers any of the questions in the affirmative is prohibited by federal law from “purchasing and/or possessing a firearm,” and that he also understood that the making of any false statement with respect to the transaction is a crime punishable as a felony. In fact, Huddleston, six years earlier, had been convicted in a California state court for writing checks without sufficient funds, an offense punishable under California law by a maximum term of 14 years. This fact, if revealed to the pawnshop proprietor, would have precluded the proprietor from selling or otherwise disposing of any of the rifles to the petitioner because of the proscription in 18 U. S. C. § 922 (d) (1). Huddleston was charged in a three-count indictment with violating 18 U. S. C. §§922 (a) (6) and 924 (a). He moved to dismiss the indictment, in part on the ground that § 922 (a)(6) was never intended to apply, and should not apply, to a pawnor’s redemption of a weapon he had pawned. This motion was denied. Petitioner then pleaded not guilty and waived a jury trial. The Government’s evidence consisted primarily of the three Treasury Forms 4473 Huddleston had signed; the record of his earlier California felony conviction; and the pawnbroker’s federal license. A Government agent also testified that petitioner, after being arrested and advised of his rights, made statements admitting that he had known, when filling out the forms, that he was a felon and that he had lied each time when he answered Question 8b in the negative. Huddleston testified in his own defense. He stated that he did not knowingly make a false statement; that he did not read the form and simply answered “no” upon prompting from the pawnbroker; and that he was unaware that his California conviction was punishable by a term exceeding one year. The District Judge found the petitioner guilty on all counts. He sentenced Huddleston to three concurrent three-year terms. The sentences were suspended, however, except for 20 days to be served on weekends. The United States Court of Appeals for the Ninth Circuit, by a divided vote, affirmed the conviction. 472 F. 2d 592 (1973). The dissenting judge agreed that the statute was constitutional as applied, but concluded that what Huddleston did was to “reacquire” the rifles, and that “reacquire” is not necessarily included within the statute’s term “acquire.” Id,., at 593. We granted cer-tiorari, 411 U. S. 930 (1973), to resolve an existing conflict among the circuits on the issue whether the prohibition against making false statements in connection with the acquisition of a firearm covers a firearm’s redemption from a pawnshop. II Petitioner’s assault on the statute under which he was convicted is two pronged. First, it is argued that both the statute’s language and its legislative history indicate that Congress did not intend a pawnshop redemption of a firearm to be an “acquisition” covered by the statute. Second, it is said that even if Congress did intend a pawnshop redemption to be a covered “acquisition,” the statute is so ambiguous that its construction is controlled by the maxim that ambiguity in a criminal statute is to be resolved in favor of the defendant. We turn first to the language and structure of the Act. Reduced to a minimum, § 922 (a) (6) relates to any false statement made “in connection with the acquisition . . . of any firearm” from a licensed dealer and intended or likely to deceive the dealer “with respect to any fact material to the lawfulness of the sale or other disposition of such firearm.” Petitioner attaches great significance to the word “acquisition.” He urges that it suggests only a sale-like transaction. Since Congress in § 922 (a) (6) did not use words of transfer or delivery, as it did in other sections of the Act, he argues that “acquisition” must have a narrower meaning than those terms. Moreover, since a pawn transaction is only a temporary bailment of personal property, with the pawnshop having merely a security interest in the pledged property, title or ownership is constant in the pawnor, and the pawn-plus-redemption transaction is no more than an interruption in the pawnor’s possession. The pawnor simply repossesses his own property, and he does not “acquire” any new title or interest in the object pawned. At most, he “reacquires” the object, and reacquisition, as the dissenting judge in the Court of Appeals noted, is not necessarily included in the statutory term “acquisition.” On its face, this argument might be said to have some force. A careful look at the statutory language and at complementary provisions of the Act, however, convinces us that the asserted ambiguity is contrived. Petitioner is mistaken in focusing solely on the term “acquisition” and in enshrouding it with an extra-statutory “legal title” or “ownership” analysis. The word “acquire” is defined to mean simply “to come into possession, control, or power of disposal of.” Webster’s New International Dictionary (3d ed., 1966, unabridged); United States v. Laisure, 460 F. 2d 709, 712 n. 3 (CA5 1972). There is no intimation here that title or ownership would be necessary for possession, or control, or disposal power, and there is nothing else in the statute that justifies the imposition of that gloss. Moreover, a full reading of § 922 (a) (6) clearly demonstrates that the false statements that are prohibited are those made with respect to the lawfulness of the sale • “or other disposition” of a firearm by a licensed dealer. The word “acquisition,” therefore, cannot be considered apart from the phrase “sale or other disposition.” As the Government suggests, and indeed as the petitioner implicitly reasoned at oral argument, Tr. of Oral Arg. 11, if the pawnbroker “sells” or “disposes” under § 922 (a)(6), the transferee necessarily “acquires.” These words, as used in the statute, are correlatives. The focus of our inquiry, therefore, should be to determine whether a “sale or other disposition” of a firearm by a pawnbroker encompasses the redemption of the firearm by a pawnor. Clearly, a redemption is not a “sale” for the simple reason that a sale has definite connotations of ownership and title. Some “other disposition” of a firearm, however, could easily encompass a pawnshop redemption. We believe that it does. It is the dealer who sells or disposes of the firearm. The statute defines the dealer to be: “(A) any person engaged in the business of selling firearms or ammunition at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker.” 18 U. S. C. § 921 (a) (11) (emphasis supplied). It defines a “pawnbroker” as “any person whose business or occupation includes the taking or receiving, by way of pledge or pawn, of any firearm or ammunition as security for the payment or repayment of money.” 18 U. S. C. §921 (a) (12) (emphasis supplied). These definitions surely suggest that a “sale or other disposition” of a firearm in a pawnshop is covered by the statute. This, of course, does not of itself resolve the question as to exactly what “other disposition” by a pawnbroker is included. It should be apparent, however, that if Congress had intended to include only a pawnbroker’s default sales of pledged or pawned goods, or his wholesale and retail sales of nonpawned goods, and to exclude the redemption of pawned articles, then the explicit inclusion of the pawnbroker in the definition of “dealer” would serve no purpose, since part (A) of the definition, covering wholesale and retail sales, would otherwise reach all such sales. United States v. Rosen, 352 F. Supp. 727, 729 (Idaho 1973). At oral argument counsel suggested that the specific reference to a pawnbroker might have been intended to include “disposition” by barter, swap, trade, or gift. Tr. of Oral Arg. 5-7. This interpretation strains belief. Trades or gifts are not peculiar to pawnbrokers. Wholesalers and retailers may indulge in such dispositions. There is nothing in the legislative history to indicate that this interpretation prompted the specific mention of a pawnbroker in part (C) of the definition. To the contrary, the committee reports indicate that part (C) “specifically provides that a pawnbroker dealing in firearms shall be considered a dealer.” H. R. Rep. No. 1577, 90th Cong., 2d Sess., 11 (1968) (emphasis supplied). See also S. Rep. No. 1501, 90th Cong., 2d Sess., 30 (1968). We also cannot ignore the explicit reference to a firearm transaction “by way of pledge or pawn” in the statutory definition of “pawnbroker” in §921 (a) (12). Had Congress’ desire been to exempt a transaction of this kind, it would have artfully worded the definition so as to exclude it. We are equally impressed by Congress’ failure to exempt redemptive transactions from the prohibitions of the Act when it so carefully carved out exceptions for a dealer “returning a firearm” and for an individual mailing a firearm to a dealer “for the sole purpose of repair or customizing.” § 922 (a)(2)(A). Petitioner contends that a redemptive transaction is no different from the return of a gun left for repair. His argument is that the pawned weapon is simply “returned” to the individual who left it and represents a mere restoration to its original status. We believe, however, that it was not unreasonable for Congress to choose to view the pawn transaction as something more than the mere interruption in possession typical of repair. The fact that Congress thought it necessary specifically to exempt the repair transaction indicates that it otherwise would have been covered and, if this were so, clearly a pawn transaction likewise would be covered. Other provisions of the Act also make it clear that the statute generally covers all transfers of firearms by dealers to recipients. Section 922 (a)(1) makes it unlawful for any person, except a licensed importer, manufacturer, or dealer, to engage in the business of “dealing” in firearms, or in the course of such business “to ship, transport, or receive any firearm.” Section 922 (b)(1) makes it unlawful for a dealer “to sell or deliver” firearms of specified types to persons under 18 or 21 years of age. Section 922 (b) (2) makes it unlawful for a dealer to “sell or deliver” a weapon to a person in any State where “at the place of sale, delivery or other disposition,” the transfer would violate local law. Section 922 (d) makes it unlawful for a dealer “to sell or otherwise dispose of” a firearm to a person under a felony indictment, a felon, a fugitive, a narcotic addict, or a mental defective. Section 923 (g) requires that each licensed dealer maintain “records of importation, production, shipment, receipt, sale, or other disposition, of firearms.” In sum, the word “acquisition,” as used in § 922 (a) (6), is not ambiguous, but clearly includes any person, by definition, who “come[s] into possession, control, or power of disposal” of a firearm. As noted above, “acquisition” and “sale or other disposition” are correlatives. It is reasonable to conclude that a pawnbroker might “dispose” of a firearm through a redemptive transaction. And because Congress explicitly included pawnbrokers in the Act, explicitly mentioned pledge and pawn transactions involving firearms, and clearly failed to include them among the statutory exceptions, we are not at liberty to tamper with the obvious reach of the statute in proscribing the conduct in which the petitioner engaged. Ill The legislative history, too, supports this reading of the statute. This is apparent from the aims and purposes of the Act and from the method Congress adopted to achieve those objectives. When Congress enacted the provisions under which petitioner was convicted, it was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest. Pub. L. 90-351, § 1201, 82 Stat. 236, as amended by Pub. L. 90-618, §301 (a)(1), 82 Stat. 1236, 18 U. S. C. App. § 1201. Congress determined that the ease with which firearms could be obtained contributed significantly to the prevalence of lawlessness and violent crime in the United States. S. Rep. No. 1097, 90th Cong., 2d Sess., 108 (1968). The principal purpose of the federal gun control legislation, therefore, was to curb crime by keeping “firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.” S. Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968). Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 and the Gun Control Act of 1968 are thus aimed at restricting public access to firearms. Commerce in firearms is channeled through federally licensed importers, manufacturers, and dealers in an attempt to halt mail-order and interstate consumer traffic in these weapons. The principal agent of federal enforcement is the dealer. He is licensed, §§922 (a)(1) and 923 (a); he is required to keep records of “sale ... or other disposition,” § 923 (g); and he is subject to a criminal penalty for disposing of a weapon contrary to the provisions of the Act, § 924. Section 922 (a)(6), the provision under which petitioner was convicted, was enacted as a means of providing adequate and truthful information about firearms transactions. Information drawn from records kept by-dealers was a prime guarantee of the Act’s effectiveness in keeping “these lethal weapons out of the hands of criminals, drug addicts, mentally disordered persons, juveniles, and other persons whose possession of them is too high a price in danger to us all to allow.” 114 Cong. Rec. 13219 (1968) (remarks of Sen. Tydings). Thus, any false statement with respect to the eligibility of a person to obtain a firearm from a licensed dealer was made subject to a criminal penalty. From this outline of the Act, it is apparent that the focus of the federal scheme is the federally licensed firearms dealer, at least insofar as the Act directly controls access to weapons by users. Firearms are channeled through dealers to eliminate the mail order and the generally widespread'commerce in them, and to insure that, in the course of sales or other dispositions by these dealers, weapons could not be obtained by individuals whose possession of them would be contrary to the public interest. Thus, the conclusion we reached above with respect to the language and structure of the Act, that firearms redemptions in pawnshops are covered, is entirely consonant with the achievement of this congressional objective and method of enforcing the Act. Moreover, as was said in United States v. Bramblett, 348 U. S. 503, 507 (1955), “There is no indication in either the committee reports or in the congressional debates that the scope of the statute was to be in any way restricted” (footnotes omitted). Indeed, the committee reports indicate that the proscription under § 922 (d) on the sale of other disposition of a firearm to a felon “goes to all types of sales or dispositions— over-the-counter as well as mail order.” S. Rep. No. 1097, 90th Cong., 2d Sess., 115 (1968). See S. Rep. No. 1501, 90th Cong., 2d Sess., 34 (1968). As far as the parties have informed us, and as far as our independent research has revealed, there is no discussion of the actual meaning of “acquisition” or of “sale or other disposition” in the legislative history. Previous legislation relating to the particular term “other disposition” sheds some light, however, and prudence calls on us to look to it in ascertaining the legislative purpose. United States v. Katz, 271 U. S. 354, 357 (1926). The term apparently had its origin in § 1 (k) of the National Firearms Act, Pub. L. 474, 48 Stat. 1236 (1934). That Act set certain conditions on the “transfer” of machine guns and other dangerous weapons. As defined by the Act, “transfer” meant “to sell, assign, pledge, lease, loan, give away, or otherwise dispose of.” The term “otherwise dispose of” in that context was aimed at providing maximum coverage. The interpretation we adopt here’ accomplishes the same objective. There also can be no doubt of Congress' intention to deprive the juvenile, the mentally incompetent, the criminal, and the fugitive of the use of firearms. Senator Tydings stated: “Title IV, the concealed weapons amendment, is a very limited, stripped-down, bare-minimum gun-traffic control bill, primarily designed to reduce access to handguns for criminals, juveniles, and fugitives .... I can fairly say that this concealed weapons amendment does not significantly inconvenience hunters and sportsmen in any way. The people it does frustrate are the juveniles, felons, and fugitives who today can, with total anonymity and impunity, obtain guns by mail or by crossing into neighboring States with lax or no gun laws at all, regardless of the law of their own State.” 114 Cong. Rec. 13647 (1968). Congressman Celler, the House Manager, stated: “Mr. Chairman, none of us who support Federal firearms controls believe that any bill or any system of control can guarantee that society will be safe from firearms misuse. But we are convinced that a strengthened system can significantly contribute to reducing the danger of crime in the United States. No one can dispute the need to prevent drug addicts, mental incompetents, persons with a history of mental disturbances, and persons convicted of certain offenses, from buying, owning, or possessing firearms. This bill seeks to maximize the possibility of keeping firearms out of the hands of such persons.” Id., at 21784. Congressman McCulloch, a senior member of the House Committee on the Judiciary, in referring specifically to § 922 (a)(6), stated, “[The bill] makes it unlawful . . . [f]or any person, in connection with obtaining a firearm or ammunition from a licensee, to make a false representation material to such acquisition.” Id., at 21789. Given these statements of congressional purpose, it would be unwarranted to except pawnship redemptions when, by virtue of the statutory language itself, such re-demptions would be covered. Otherwise every evil Congress hoped to cure would continue unabated. IV Petitioner urges that the intention to include pawn redemptions is so ambiguous and uncertain that the statute should be narrowly construed in his favor. Reliance is placed upon the maxim that an “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Rewis v. United States, 401 U. S. 808, 812 (1971); United States v. Bass, 404 U. S. 336,347 (1971). This rule of narrow construction is rooted in the concern of the law for individual rights, and in the belief that fair warning should be accorded as to what conduct is criminal and punishable by deprivation of liberty or property. United States v. Wiltberger, 5 Wheat. 76, 95 (1820); United States v. Bass, 404 U. S., at 348. The rule is also the product of an awareness that legislators and not the courts should define criminal activity. Zeal in forwarding these laudable policies, however, must not be permitted to shadow the understanding that “[sjound rules of statutory interpretation exist to discover and not to direct the Congressional will.” United States ex rel. Marcus v. Hess, 317 U. S. 537, 542 (1943). Although penal laws are to be construed strictly, they “ought not to be construed so strictly as to defeat the obvious intention of the legislature.” American Fur Co. v. United States, 2 Pet. 358, 367 (1829); United States v. Wiltberger, supra; United States v. Morris, 14 Pet. 464, 475 (1840); United States v. Lacker, 134 U. S. 624 (1890); United States v. Bramblett, 348 U. S., at 510; United States v. Bass, 404 U. S., at 351. We perceive no grievous ambiguity or uncertainty in the language and structure of the Act. The statute in question clearly proscribes petitioner’s conduct and accorded him fair warning of the sanctions the law placed on that conduct. Huddleston was not short of notice that his actions were unlawful. The question he answered untruthfully was preceded by a warning in boldface type that “an untruthful answer may subject you to criminal prosecution.” The question itself was forthright and direct, stating that it was concerned with conviction of a crime punishable by imprisonment for a term exceeding one year and that this meant the term which could have been imposed and not the sentence actually given. Finally, petitioner was required to certify by his signature that his answers were true and correct and that he understood that “the making of any false oral or written statement . . . with respect to this transaction is a crime punishable as a felony.” This warning also was in boldface type. Clearly, petitioner had adequate notice and warning of the consequences of his action. Our reading of the statute cannot be viewed as judicial usurpation of the legislative function. The statute’s language reveals an unmistakable attempt to include pawnshop transactions, by pledge or pawn, among the transactions covered by the Act. And Congress unquestionably made it unlawful for dealers, including pawnbrokers, “to sell or otherwise dispose of any firearm” to a convicted felon, a juvenile, a drug addict, or a mental defective. § 922 (d). Under these circumstances we will not blindly incant the rule of lenity to “destroy the spirit and force of the law which the legislature intended to [and did] enact.” American Tobacco Co. v. Werckmeister, 207 U. S. 284, 293 (1907); United States v. Katz, 271 U. S., at 357. Y The petitioner suggests, lastly, that the application of § 922 (a) (6) to a pawn redemption would raise constitutional questions of some moment, and that these would not arise if the statute were narrowly construed. We fail to see the presence of issues of that import. There was no taking of Huddleston’s property without just compensation. The rifles, in fact, were not his but his wife’s. Moreover, Congress has determined that a convicted felon may not lawfully obtain weapons of that kind. Nor were petitioner’s false answers in any way coerced. United States v. Knox, 396 U. S. 77, 79 (1969); Bryson v. United States, 396 U. S. 64, 72 (1969). Finally, no interstate commerce nexus need be demonstrated. Congress intended, and properly so, that §§ 922 (a) (6) and (d)(1), in contrast to 18 U. S. C. App. § 1202 (a)(1), see United States v. Bass, supra, were to reach transactions that are wholly intrastate, as the Court of Appeals correctly reasoned, “on the theory that such transactions affect interstate commerce.” 472 F. 2d, at 593. See also United States v. Menna, 451 F. 2d 982, 984 (CA9 1971), cert. denied, 405 U. S. 963 (1972), and United States v. O’Neill, 467 F. 2d 1372, 1373-1374 (CA2 1972). We affirm the judgment of the Court of Appeals. It is so ordered. “§ 922. Unlawful acts. “(a) It shall be unlawful— “ (6) for any person in connection with the acquisition ... of any firearm . . . from a . . . licensed dealer . . . knowingly to make any false or fictitious oral or written statement . . . intended or likely to deceive such . . . dealer . . . with respect to any fact material to the lawfulness of the sale or other disposition of such firearm . . . under the provisions of this chapter.” “§ 922. Unlawful acts. “(d) It shall be unlawful for any . . . licensed dealer ... to sell or otherwise dispose of any firearm ... to any person knowing or having reasonable cause to believe that such person— “(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” Cal. Penal Code § 476a (1970). The California complaint against Huddleston was in six counts and contained an allegation that he had been convicted previously in the State of Iowa of an offense which, if committed in California, would have been a violation of § 476 of the California Penal Code. He was eventually sentenced on the check charge to 30 days in jail. “§ 924. Penalties. “(a) Whoever violates any provision of this chapter or knowingly makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this chapter, . . . shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.” Huddleston at first testified that his California attorney and his probation officer there told him that when he completed his probation period and made restitution, “it would go on record as a misdemeanor,” and that the attorney had told him he “couldn’t get over a year.” App. 37, 39. Upon inquiry by the court, he testified that when he was arraigned he thought he “could get more than one year,” and was so informed. Id., at 41. In agreement with the Ninth Circuit’s decision is United States v. Beebe, 467 F. 2d 222 (CA10 1972). To the contrary is United States v. Laisure, 460 F. 2d 709 (CA5 1972). James Y. Bennett, then Director of the Federal Bureau of Prisons, in Senate testimony offered a “case study” vividly illustrating non-sale situations that would qualify as a firearms “disposition” or “acquisition.” One of his illustrations was the following: “On September 26, 1958, a 20-year-old youth shot and seriously wounded a teller during the course of a bank robbery in St. Paul; only a week previously he had bought the revolver, a .357 Smith & Wesson, in a Minneapolis sporting goods store, pawned it the same day, and on the day of the robbery redeemed it with money obtained from check forgeries.” Mr. Bennett concluded his testimony with the observation, “No responsible and thoughtful citizen can, in my opinion, seriously object to measures which would discourage youngsters, the mentally ill, and criminals from coming into possession of handguns.” Hearings before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 88th Cong., 1st Sess., pt. 14, pp. 3369, 3377 (1963). Testimony by then Attorney General Ramsey Clark also supports the rejection of petitioner’s suggestion that the language of the statute be given a restrictive meaning: “Mr. Donohue. Do you not think, Mr. Attorney General, to attain the real objective and purpose of this bill, it should not only deal with the sale, but whoever sells or delivers? “Mr. Clark. It covers delivery, too. “Mr. Donohue. Where? “Mr. Clark. Well, generally, through the bill when you talk about — well, it would be unlawful for any licensed importer to sell or deliver. Any licensed dealer to sell or deliver. “Mr. Donohue. It is not restricted to just sale for consideration? “Mr. Clark. No. The delivery, too.” Hearings on an Anti-Crime Program before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 260 (1967). It should be apparent from these statements that Congress was not so much concerned with guaranteeing no interference with the ownership of weapons as it was in distinguishing between law-abiding citizens and those whose possession of weapons would be contrary to the public interest. Hunting, target practice, gun collecting, and the legitimate use of guns for individual protection are not proscribed by the Act. Ownership of a weapon, however, may be interfered with by seizure and forfeiture under the Act for any violation of its provisions. Section 924 (d) incorporates the seizure and forfeiture provisions of the Internal Revenue Code when there is any violation of the provisions of the chapter or any rule or regulation thereunder. The Act itself thus contemplates interference with the ownership of weapons when those weapons fall into the hands of juveniles, criminals, drug addicts, and mental incompetents. What few references there are to pawnbrokers in the debates indicate that Congress was definitely interested in curbing firearms traffic between pawnbrokers and convicted felons. Senator Tydings, a strong proponent of the bill which became the Act, expressed his concern when he compared the bill to a proposal that was offered as an alternative: “[O]ne reading through the amendment for the first time would assume that pawnbrokers are covered by the critically important provisions of the affidavit-waiting period procedure. But, if a pawnbroker only receives secondhand weapons as security for the repayment of a loan and does not deal in new firearms, he is not transporting, shipping, or receiving a firearm in interstate or foreign commerce. Used weapons presumably will have come to rest in the hands of the borrower, and the transaction will be wholly intrastate. Such a pawnbroker would not need a Federal firearms license to conduct over-the-counter transactions in firearms. And, accordingly, he would not be a ‘licensed dealer’ required to comply with the affidavit-waiting period procedure for his over-the-counter sales in handguns. Now, if this analysis is correct, and I believe it is, this is no small omission. Surely the great bulk of criminally irresponsible purchasers of pistols and revolvers buy their weapons secondhand, and many of them from pawnshops. We all have seen the virtual arsenals displayed in the windows of pawnshop dealers in all of the major cities of the country. To say that we have effectively regulated traffic in firearms when we will not have touched the great bulk of these pawnbroker operations is a complete and utter hypocrisy.” 114 Cong. Rec. 13222 (1968). See also Memorandum placed in the record by Senator Dodd. Id., at 13320. Senator Tydings made this further comparison: “[I]t is obvious that many persons with criminal records purchase from pawnbrokers, and there are many occasions when the pawnbroker knows the criminal background of the client. Under Amendment No. 708, many of these pawnbrokers will not be required to 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_genapel2	H	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. OBER et al. v. WHITE (two cases). (Circuit Court of Appeals, Third Circuit. March 3, 1926. Rehearing Denied April 7, 1926.) Nos. 3394, 3395. 1. Corporations <@=560(4) — Receivers of mortgage company, creature of Ohio corporation, held not entitled to recover from receivers of Pennsylvania corporation, another creature of Ohio corporation, for stock of mortgage company sold hy Pennsylvania corporation, which had made full accounting to Ohio corporation. “Where, in pursuance of operations defrauding public in sale of stock, Ohio corporation had its creature, a Pennsylvania corporation, unload stock of mortgage company, another of its creatures, held, that receivers of mortgage company, after appointment of receivers for all companies, have no right to fund in hands of receivers of Pennsylvania corporation, with whom it had no contractual or trust relation, which cannot be traced to stock subscriptions, particularly since Pennsylvania corporation had more than fully accounted to Ohio corporation for all moneys received by it from sale of such stock. 2. Corporations <©=560(4) — Mortgage company’s receivers were entitled to return of fund forwarded to corporation selling its stock for purpose of paying dividends thereon; such fund having been deposited in special fund, and so remaining until receivership of both companies. Where fund for.warded to Pennsylvania corporation engaged in selling stock of mortgage company, for specific purpose of paying dividends on mortgage company’s stock was deposited in special fund, so remaining until receivership of both companies, mortgage company’s receivers were entitled to such fund. Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. Separate suits by Franklin S. Zelly and others against the R. L. Dollings Company of Pennsylvania and others for the appointment of a receiver, wherein Thomas Raeburn “White was appointed receiver, and by the Crane Ice Cream Company against Thomas Raeburn White, receiver of the R. L. Dollings Company of Pennsylvania to reclaim moneys, wherein cross-bill was filed on behalf of the International Note & Mortgage Company also asserting a reclamation claim, for whom Thomas K. Ober, Jr., and another, were substituted as plaintiffs in cross-bill, on their appointment as ancillary receivers of the International Note & Mortgage Company. From decrees in each ease denying the claims of Thomas K. Ober, Jr., and another, ancillary receivers of the International Note & Mortgage Company, they appeal. Affirmed in part, and reversed in part. Ulric J. Mengert, William E. Mikell, Jr., Albert Smith Faught, and J. Hector MeNeal, all of Philadelphia, Pa., Henry A. Williams, of Columbus, Ohio, and Maurice B. Saul and Owen J. Roberts, both of Philadelphia, Pa., for appellants. Francis F. Burch, Percival H. Granger, and Thos. Raeburn White, all of Philadelphia, Pa., for appellee. Before BUFFINGTON, WOOLLEY, and DAYIS, Circuit Judges. Certiorari denied 46 S. Ct. 630, 70 L. Ed. —. BUFFINGTON, Circuit Judge. This case involves the distribution of two different funds in the hands of the receivers of the R. L. Dollings Company, a corporation of Pennsylvania. The first fund, some $500,-000, is the proceeds of the assets of that company, and was in no way earmarked or connected with any trust. Without entering into a detailed description of the Dollings operations, it suffices to say that all the companies here involved were links in a chain of corporations whose purpose and successful sphere of operations was defrauding the public in the sale of stocks. In the course of these fraudulent operations, the Dollings Company of Ohio had its corporate creature, the Dollings Company of Pennsylvania, unload on the public the stock of the International Note & Mortgage Company of Ohio, another of its corporate creatures. The Pennsylvania Company so sold, and thereby became accountable to the Dollings Company of Ohio for some $500,000, when the receivership of all these companies came about. But it also appeared that during these transactions the Dollings Company of Ohio had received advances,, or otherwise become accountable to the Pennsylvania Dollings Company, to an amount largely in excess of this $500,000. The situation is summarized by the court below as follows: “The basis of the claim in either of its -aspects is a fact. The master disposes of the fact respecting the trust fund by finding that there is no fund earmarked or otherwise which can be traced to these stock subscriptions. He disposes of the debt claim by his finding that the Pennsylvania Dollings Company had no contractual or trust relations or relations of any kind with the International Company. The only dealings it had and the only relations it sustained were with the Dollings Company of Ohio. For the latter company the Pennsylvania Company, it is true, sold stock, but it had not only fully but had overaccounted for all moneys received, so that when the crash cama the state of accounts between them stood in favor of the Pennsylvania Company in a sum of approximately $1,000,000. It is likewise true that moneys which represented proceeds from the sale of the International Company stock were included in what the Pennsylvania Company received. These moneys, however, belonged, so far as concerned the Pennsylvania Company, to the Ohio Company, to which they were not only paid, but overpaid. There was in consequence no indebtedness of the Pennsylvania Company to the International Company, or to any one, for that matter, which arose. The transaction was that of an underwri.tr ing of an issue of stock of the International Company by the Ohio Company, the issue of the stock to the latter company for the purposes of the underwriting 'agreement, the sale of shares to investors, who thereby became stockholders of the International, the deposit with the Pennsylvania Company of some of the money from these sales to the credit and order of the Ohio Company, and the overpayment of the moneys to the Ohio Company.” Without entering into further details, we limit ourselves to saying that we agree with the findings of fact, concurred in by court and master, and with the conclusion drawn therefrom, that the International Note & Mortgage Company has -shown no right to the sum in question. We therefore dismiss its appeal, and affirm the decree below, in so far as it disallows the claim of the receivers of the International Note & Mortgage Company to $501,676, the balance alleged to be due on account of stock of the International Note & Mortgage Company sold by the Pennsylvania Dollings Company. We next consider the claim of the receivers of the International Note & Mortgage Company to a fund of $17,707, which the court below disallowed. In this we are of opinion the court erred, and its decree in that respect must be reversed, and the fund ordered paid to said receivers. Our reasons therefor are that the money was sent by the Dollings Company of Ohio to the Dollings Company of Pennsylvania, for the specific purpose of paying a dividend which it was intended to make on the stock of the International Note & Mortgage Company. When received by the Pennsylvania Company, it was not mingled with its funds, but was deposited in a special fund, and so remained until the receivership. Not having been applied to its designated purpose when the receivership came, we are unable to see by what means or in what manner any ownership of this trust fund accrued to the Pennsylvania Company. It came into the possession of the court, through its receiver, as an earmarked fund, which the court, on it being impossible to carry out the trust, should return to the source from which it came. Having been designated, when sent, as applicable to the affairs of the International Note & Mortgage Company, and there is no one else claiming or showing a title to it, we are of opinion that this court should carry out, as far as now possible, the trust under which it was received, by now ordering it paid to the receivers of the International Note & Mortgage Company. The decree below will therefore be modified, by the approval of the claim of the International Note & Mortgage Company to this $17,707-, and directing the receivers of the Pennsylvania Company to transfer and pay the same to the receivers of the International Note & Mortgage Company. Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for 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_usc1	26	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. ASPHALT INDUSTRIES, INC., Appellant, v. COMMISSIONER OF INTERNAL REVENUE. No. 17470. United States Court of Appeals Third Circuit. Argued Feb.'4, 1969. Decided May 14, 1969. Daniel Mungall, Jr., Stradley, Ronon, Stevens & Young, Philadelphia, Pa. (Robert M. Taylor, Philadelphia, Pa., on the brief), for appellant. Loring W. Post, Dept, of Justice, Tax Division, Washington, D. C. (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Meyer Rothwacks, Attys., Dept, of Justice, Washington, D. C., on the brief), for appellee. Before KALODNER, GANEY and SEITZ, Circuit Judges. OPINION OF THE COURT KALODNER, Circuit Judge. The critical question presented is whether the Tax Court correctly held that theft losses sustained by the petitioner Asphalt Industries, Inc. by reason of diversion of its funds were deductible as a “loss from theft” under Section 165 (a), (e) of the Internal Revenue Code of 1954 only during the taxable year in which they were discovered. Section 165 “Losses” provides: “(a) General rule. — There shall be allowed as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise. * * * * * * “(e) Theft losses. — -For purposes of subsection (a), any loss arising from theft shall be treated as sustained during the taxable year in which the taxpayer discovers such loss.” These undisputed facts are relevant to our disposition: Petitioner is a Pennsylvania corporation. During the taxable year here involved — the fiscal year ending February 29, I960- — petitioner’s stock was owned in equal shares by its then president, Conrad V. Anderson, Jr. and its secretary-treasurer, Richard Schwoebel. Petitioner’s day-to-day operations were conducted by Anderson and its vice-president and assistant secretary, one Arthur Sanford. Anderson died on November 12, 1960. Thereafter, in December 1960 or January 1961, Schwoebel, who succeeded Anderson as petitioner’s president, discovered that Anderson had cashed for his own use customers’ checks made payable to petitioner during the petitioner’s 1960 fiscal year and for some five preceding years. Petitioner promptly notified the Internal Revenue Service of its discovery since its books and income tax returns had not reflected as corporate “income” the diverted and converted funds. The Internal Revenue Service then made deficiency assessments totalling $96,172.84, and imposed fraud penalties aggregating $52,674.18 for the fiscal years ending February 28, 1955 through February 29, 1960. In sustaining the deficiency assessments and fraud penalties the Tax Court ruled that petitioner was not entitled to theft-loss deductions under Section 165 for the years in question, on the ground that they could be claimed only in the year in which they were discovered. 46 T.C. 622 (1966). This Court, at 384 F.2d 229 (1967), held (p. 235): “ * * * the corporation is not chargeable with Anderson’s fraud and that the assessments for fraud therefore must be set aside,” and ruled that “The decision of the Tax Court will be reversed.” Upon the remand which followed, the Tax Court in a Memorandum Opinion, subscribed to the contention of the Internal Revenue Service that we had at 384 F.2d 229 only reversed the fraud assessments for the years 1955-1960, inclusive, and as a necessary concomitant barred the deficiency assessments for the years 1955-1959, and had let stand the “basic deficiency” of $13,819.39 for the fiscal year ending February 29, 1960. The Tax Court then entered its decision sustaining the 1960 deficiency assessment of $13,819.39. The instant petition for review followed. The sum of petitioner’s position is that (1) this Court did not at 384 F.2d 229 rule with respect to the 1960 deficiency assessment; and (2) it is entitled to claim a theft-loss deduction for the taxable year ending February 29, 1960, even though the loss was not discovered until later. The Commissioner, in reply, contends that we had in our earlier opinion let stand the 1960 deficiency assessment, and assuming arguendo that we had not done so, that the theft-loss deduction could be claimed under Section 165 only for the taxable year in which it was discovered, and not the 1960 taxable year in which it occurred. We must immediately note with respect to the parties’ conflicting views as to what we decided at 384 F.2d 229, that we there made it clear that we were confining our disposition to the question of the imposition of the fraud penalties against the petitioner, and the concomitant question of the deficiency assessments for the years of 1955 to 1959, inclusive. Moreover, we expressly stated that “we put aside the interesting and important question of the effect of the change made by the 1954 Code, which altered the time for deduction from the year in which the theft occurred to the year of its ‘discovery’.” 384 F.2d 233. What has been said brings us to the critical question as to whether the theft losses are deductible only in the year in which they are discovered. Prior to enactment of the 1954 Code, loss deductions were authorized only for losses “sustained during the taxable year.” The Treasury Regulation interpreting this provision provided: “A loss from theft or embezzlement occurring in one year and discovered in another is ordinarily deductible for the year in which sustained.” (emphasis supplied). Thus, the general policy of the Treasury was to treat a loss as sustained in the year in which the theft or embezzlement occurred. Under this Regulation, however, the Treasury in many instances allowed deductions for embezzlement losses in years subsequent to those in which the thefts occurred. Likewise, the courts, faced with the consideration that discovery might be made years after the embezzlement occurred and with the difficulty at times in ascertaining exactly when the embezzlement occurred, adopted a flexible approach in determining when a loss was “sustained.” This problem culminated in the Supreme Court’s decision in Alison v. United States, 344 U.S. 167, 73 S.Ct. 191, 97 L.Ed. 186 (1952), in which the Court eschewed any “inflexible rule.” The Court declared (p. 170, 73 S.Ct. p. 192): “Whether and when a deductible loss results from an embezzlement is a factual question, a practical one to be decided according to surrounding circumstances. * * * An inflexible rule is not needed; the statute does not compel it. For years the Treasury has administered the tax law under regulations saying that deductions shall ‘ordinarily’ be taken in the year of embezzlement. Ordinarily does not mean always.” The IRS responded to the Alison decision by ruling that theft deductions could be taken in the year of discovery in situations in which it was impossible to determine when the embezzlement occurred and in those in which the discovery was “many years” after the embezzlement and “undue hardship or injustice would result if the loss were allowed only in the years the embezzle-ments occurred.” Rev.Rul. 183, Cum. Bull. 1953-2, at 143. The Service was careful to point out, however, that “this exception does not provide taxpayers with an option to select the taxable year in which the deduction of the loss is to be allowed for tax purposes.” The 1954 Code provision dealing with theft losses was thus enacted against a background of existing law in which a taxpayer could not be certain in which year an embezzlement theft loss could be taken. Prior thereto, though relief had been granted on an ad hoc basis in individual cases, the courts and the Treasury were still groping with the problem of what to do when a theft loss was not discovered until after the taxpayer was barred from claiming a deduction in the year of occurrence. “Doubtless in the interest of producing a more realistically enforceable rule, the 1954 Code shifted the focus of deductibility from the year of sustainment to the year of discovery.” Mertens, Federal Income Taxation Commentary: Section 165, at 201-202. After stating the general rule in Section 165(a) that a deduction will be allowed for losses “sustained during the taxable year,” the 1954 Code goes on to provide in Section 165(e): “For purposes of subsection (a), any loss arising from theft shall be treated as sustained during the taxable year in which the taxpayer discovers such loss.” The IRS has construed this as meaning that a theft-loss deduction can be taken only in the year of discovery. Treas.Reg. § 1.-165-8(a). This interpretation of Section 165(e) is not only supported by analysis of the pre-existing law, but by the legislative history relating to that section. Thus, the House Report on the section stated: “The regulations under present law indicate that generally ordinary losses can be taken only in the year in which they are sustained. In embezzlement and other theft losses, however, the taxpayer may not find out about the loss until the statute of limitations has run for the year in which the loss was incurred. “The committee has adopted a provision which provides that theft losses can be deducted in the year in which the taxpayer discovers the loss, and only in that year. ****** “Subsection (e) is a new provision for the treatment of theft losses. There was no comparable statutory provision in the 1939 code. Regulation 118, section 39.43-2 provides that a loss from theft or embezzlement is ordinarily deductible for the year in which sustained. There has been considerable uncertainty and litigation about the application of this rule. Under the new provision, the loss will always be deductible in the year in which the taxpayer discovers the loss, The rule will, of course, also apply to embezzlement, larceny, etc. * * * ” H.R. No. 1337, 83d Cong., 2d Sess., pp. 21 & A46 (1954), reprinted in 3 U.S. Code Cong. & Admin.News 4017, 4045-4046, 4183 (1954) (emphasis supplied). This same language is contained in the Senate Report. Senate Rep. No. 1622, 83d Cong., 2d Sess., pp. 23 & 198 (1954), reprinted in 3 U.S. Code Cong. & Admin. News 4621, 4653, 4833 (1954). See also 5 Mertens, Federal Income Taxation § 28.59, at 244; Mertens, Federal Income Taxation Commentary: Section 165, at 201-202. In view of the clear legislative history and the context in which Section 165(e) was enacted, the Treasury Regulation providing that theft losses can be deducted only in the year of discovery is clearly valid. See Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 92 L.Ed. 831 (1948); Fawcus Machine Co. v. United, States, 282 U.S. 375, 378, 51 S.Ct. 144, 75 L.Ed. 397 (1931). For the reasons stated, the decision of the Tax Court will be affirmed. . 26 U.S.C.A. Sec. 165(a), (e). . Asphalt Industries, Inc. v. Commissioner, T.C. Memo. 1968-155 (July 23, 1968). . The Commissioner also contends that petitioner has not established that Anderson’s conversion of its funds amounted to “embezzlement”, and, further, that there is a reasonable prospect that petitioner will recover the misapplied funds in a suit which it has filed against Anderson’s estate. We do not reach these contentions in the light of our disposition. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_respond1_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 respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant. HANGING ROCK IRON CO. v. P. H. & F. M. ROOTS CO. UNION FURNACE CO. v. SAME. Nos. 4499, 4500. Circuit Court of Appeals, Seventh Circuit. July 8, 1931. Rehearing Denied Oct. 1, 1931. Raymond L. Walker and George M. Barnard, both of Indianapolis, Ind., and Walter M. Shohl, of Cincinnati, Ohio, for appellants. Harvey J. Elam and Howard S. Young, both of Indianapolis, Ind., for respondent. Before ALSCHULER, EVANS, and SPARKS, Circuit Judges. PER CURIAM. The two appeals here under consideration involved judgments dismissing appellants’ actions. In each case, a money judgment was sought because of an alleged breach of contract for the" purchase of pig iron, which was never delivered because appellee refused to accept it. Identical issues were presented in both actions, and they were tried together. The court ordered, on appellants’ motion, that the causes be consolidated. The actions were tried four times. At the conclusion of the first trial, the plaintiff dismissed its action. The second trial resulted in two small judgments for appellants, from which they appealed. The judgments were reversed, and a new trial ordered. (C. C. A.) 10 F.(2d) 154. The third trial resulted in a verdict for appellee, which was set aside by the court. The fourth trial resulted in a verdict and judgment for appellee. When the cause was before this court on previous appeal, we said: “The court instructed the jury, ‘The breach occurred at the end of each of these months’ (meaning July to December, 1920, inclusive). This was likewise error, because, under the circumstances, it was a question of fact as to when a breach, that was relied on, occurred, and whose it was. * * * ” This statement became the law of the case, and the District Court therefore properly submitted both questions of fact to the jury. No sufficient reason has been advanced to cause us to change the views we thus expressed on the previous appeal respecting these two fact issues. Two vital questions, both of fact, were presented. The time of the breach, if any, was of importance because of the changing market price of the ore. For a considerable period of time covered by appellee’s alleged breach, the price of pig iron was as high as, or higher than, the price specified in the contract. Moreover, it was, and is, the contention of appellee that the agents of appellants could have sold, and did in fact sell, all the ore manufactured during this period at a price which equaled or exceeded the contract price, and therefore appellants suffered no damages. Respecting this issue, the evidence presented a jury question. We think the jury could have found, and doubtless did find, that the ore manufactured by appellants for appellee was resold, without loss to appellants. The judgment is affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant? A. auto, auto parts, auto repairs B. chemical C. drug D. food E. oil, natural gas, gasoline F. textile, clothing G. electronic H. alcohol or tobacco I. general merchandise J. other K. unclear Answer:
songer_initiate	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. ANGILLY v. UNITED STATES et al. No. 54; Docket 22445. United States Court of Appeals Second Circuit. Argued Oct. 17, 1952. Decided Nov. 7, 1952. ,, , „ _r , Matthew E McCarthy New York City, for William C. Angilly, plaintiff-appellant. Myles J. Lane, U. S. Atty., New York City, John M. Foley, Asst. U. S. Atty., New York City, of counsel, for United States and Harry M. Durning, as Collector of Customs, Port of New York, defendants-appellees. Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. On October 28, 1949, William C. Angilly, the plaintiff-appellant, a custom inspector stationed at LaGuardia Field, New York City, was summoned to a hearing at the Custom House, New York City, and orally charged with illegally withholding $152.44 in customs duties which he had collected and with withholding thirty-eight collector’s copies of informal customs entry forms pertaining thereto, covering a period from May 10, 1948 to September 20, 1948. ». ,, , - ,, , • ,.££ . , At the hearing, the plaintiff was required . ,, i , ,, to answer the charges and the answers were recorded. On November 16, 1949, the Collector of Customs of New York served the plaintiff with written charges setting forth the withholding of the customs duties and entries. On November 21, 1949, the plaintiff replied to the charges in writing, stating that the customs duties and entries were missing because of the prevailing loose practice of the government in the handling of such funds and entries at La Guardia Field. On November 29, 1949, the Plaintiff was summoned to another hearing but was n(? Permitted to have counsel, or t0 have otber customs inspectors as wit-nesses m order t0 establlsb ^alleged prevailing loose practice. On December 30, ... , , , 1949, plaintiff was removed by the Secretary of the Treasury from federal employment for withholding the funds and entrieS) and ^ sum of $1S2-44 was de, ducted frQm his accumulated salary. Thereafter he brought this action in the district court seeking: (1) A judgment in the sum of $9,184 for loss of earnings; (2) A mandatory injunction directing Durning, the Collector of Customs, to remove all charges and accusations on file in the defendant>s office affecting the plaintiff and informing the Civil Service Commission of such action; (3) A declaratory judgment decIaring the action of Burning as Collector of Customs in making criminal charges against the plaintiff and finding him guilty thereof to be illegal and void; (4) An order directing Durning as Col-lector of Customs to summarily reinstate plaintiff in his position as an inspector and pay all back wages which had accrued, tog-ether with the sum of $152.44 deducted from his earned wages, . .... Tbe dlStnCtj: Wdge granted the defendants motion for a dismissal of the com-...... , plaint for failure to state a cause of action, . __ ’ ' ’ ‘ UPP’ The requirements of the applicable stat-ute, 5 U.S.C.A. § 652 and regulations, 5 C.F.R. § 9.101 and § 9.102, which are set forth in the margin in so far as here relevant were -clearly met. Even if in a case, involving serious charges it might have been desirable to give the employee an opportunity to produce witnesses, the statute has made this purely discretionary with the hearing officer. The claim of the plaintiff that his written answer was not considered seems quite meaningless. The defendants not only received the plaintiff’s written defense, but granted him an opportumty to present his defense orally. ‘ Plaintiff’s further contentions >hat he was deprived of property without .due process of law, and of the right to trial by jury, are both negatived by the decision of Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, which was affirmed by the Supreme Court — though the justices were evenly divided, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352. See also Carter v. Forrestal, 86 U.S.App.D.C. 53, 175 F.2d 364. The suggestion in the Note in the Flarvard Law Review, 65 Harv.L.R. 156-8, to the effect that the plaintiff’s reputation is “property” within the. meaning of the Fifth Amendment is not in our opinion to be seriously weighed against the long established view that a civil service employee does not have a constitutionally protected right to his office. Cf. Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 1009, 44 L.Ed. 1187. The only jurisdiction for the reC0very of salary is vested in the United States Court of claims. 28 U.S.C. § 1346(d). The plaintiff’s claim for loss of earnings appears to us to be within the statute. Moreover, the district court has no power to reinstate the plaintiff who here was removed by the Secretary of the Treasury and can only be reinstated in a suit in the District of Columbia to which the Secretary would be a necessary party. See Williams v. Fanning, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95. For the foregoing reasons the order and judgment below are affirmed. . “§ 652. Removal without pay from olassified civil service — Only for cause; notice; copy of charges; time to answer; examination; record; persons exempt. “(a) No person in the classified civil service of the United States shall be removed or suspended without pay therefrom except for such cause as will promote the efficiency of such service and for reasons given in writing. Any person wfiose removal or suspension without pay is sought shall (1) have notice of the same and of any charges preferred against him; (2) be furnished with a copy of such charges; (3) be allowed a reason-able time for filing a written answer to such charges, with affidavits; and (4) be furnished .at the earliest practicable date with a written decision on such answer. No examination of witnesses nor any trial or hearing^ shall he required except in the discretion of the officer or employee directing the removal or suspension without pay. Copies of the charges, the notice of hearing, the answer, the reasons for removal or suspension without pay, and the order of removal or suspension without pay shall be made a part of the records of the proper department or agency, as shall also, the reasons for reduction in grade or compensation; and copies of the same shall be furnished, upon request, to the person affected and to the Civil Service Commission. This subsection shall apply to a person within the purview of section 863 of this title, only if he so elects.” “§ 9.101. Agency responsibility for separation or demotion of employees. ía) The employing agency shall remove, demote, or reassign to another position any employee in the competitive service whose conduct or capacity is such that his removal, demotion, or reassignment will promote the efficiency of the service. * * ” “§ 9.102. Procedure in separating, suspending, or demoting permanent and indefinite employees.” “(1) Actions against employees. No employee, veteran or nonveteran, shall be separated, suspended, or demoted except for such cause as will promote the efficiency of the service and for reasons given in writing. The agency shall notify the employee in writing of the action proposed to be taken. This notice shall set forth, specifically and in detail, the charges preferred against him. The employee shall be allowed a reasonable time for filing a written answer to such charges and furnishing affidavits in support of his answer. He shall not, however be entitled to an examination of witnesses, nor shall any trial or hearing be required except in the discretion of the agency. If the employee answers the charges, his answer must be considered by the agency. Following consideration of the answer, the employee shall be furnished at the earliest practical date with a written decision. If the agency determines that removal or other action is warranted, the enrployee shall be notified in the decision of the reasons for the action taken and its effective date. Copies of the charges, notice of hearing (if any), answer, reasons for removal, or other action, shall be made a part of the records of the department or agency concerned. * * * ” . “(d) The district courts shall not have jurisdiction under this section of: “(1) * * * “(2) Any civil action or claim to recover fees, salary or compensation for official services of officers or employees of the United States.” Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
sc_certreason	B	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. McLAUGHLIN, SECRETARY OF LABOR v. RICHLAND SHOE CO. No. 86-1520. Argued February 24, 1988 Decided May 16, 1988 Stevens J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’ConnoR, Scalia, and Kennedy, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and Blackmun, JJ., joined, post, p. 135. Deputy Solicitor General Ayer argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Richard G. Taranto, George R. Salem, Allen H. Feldman, and Mary-Helen Mautner. Leon Ehrlich argued the cause and filed a brief for respondent. Robert E. Williams, Douglas S. McDowell, and Garen E. Dodge filed a brief for the Equal Employment Advisory Council as amicus curiae urging affirmance. Justice Stevens delivered the opinion of the Court. The question presented concerns the meaning of the word “willful” as used in the statute of limitations applicable to civil actions to enforce the Fair Labor Standards Act (FLSA). The statute provides that such actions must be commenced within two years “except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” 61 Stat. 88, 29 U. S. C. § 255(a). I Respondent, a manufacturer of shoes and boots, employed seven mechanics to maintain and repair its equipment. In 1984, the Secretary of Labor (Secretary) filed a complaint alleging that “in many work weeks” respondent had failed to pay those employees the overtime compensation required by the FLSA. As an affirmative defense, respondent pleaded the 2-year statute of limitations. The District Court found, however, that the 3-year exception applied because respondent’s violations were willful, and entered judgment requiring respondent to pay a total of $11,084.26, plus interest, to the seven employees. Donovan v. Richland Shoe Co., 623 F. Supp. 667 (ED Pa. 1985). In resolving the question of willfulness, the District Court followed Fifth Circuit decisions that had developed the so-called Jiffy June standard. The District Court explained: “The Fifth Circuit has held that an action is willful when ‘there is substantial evidence in the record to support a finding that the employer knew or suspected that his actions might violate the FLSA. Stated most simply, we think the test should be: Did the employer know the FLSA was in the picture?’ Coleman v. Jiffy June Farms, Inc., 458 F. 2d 1139, 1142 (5th Cir.)[, cert. denied, 409 U. S. 948 (1972)]. “This standard requires nothing more than that the employer has an awareness of the possible application of the FLSA. Id.; Castillo v. Givens, 704 F. 2d 181, 193 (5th Cir.)[, cert. denied, 464 U. S. 850 (1983)]. ‘An employer acts willfully and subjects himself to the three year liability if he knows, or has reason to know, that his conduct is governed by the FLSA.’ Brennan v. Heard, 491 F. 2d 1, 3 (5th Cir. 1974) (emphasis in original). See also Donovan v. Sabine Irrigation Co., Inc., 695 F. 2d 190, 196 (5th Cir.)[, cert. denied, 463 U. S. 1207 (1983)].” 623 F. Supp., at 670-671. On appeal respondent persuaded the Court of Appeals for the Third Circuit “that the Jiffy June standard is wrong because it is contrary to the plain meaning of the FLSA.” Brock v. Richland Shoe Co., 799 F. 2d 80, 82 (1986). Adopting the same test that we employed in Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 125-130 (1985), the Court of Appeals held that respondent had not committed a willful violation unless “it knew or showed reckless disregard for the matter of whether its conduct was prohibited by the FLSA.” 799 F. 2d, at 83 (emphasis in original). Accordingly, it vacated the District Court’s judgment and remanded the case for reconsideration under the proper standard. The Secretary filed a petition for certiorari asking us to resolve the post -Thurston conflict among the Circuits concerning the meaning of the word “willful” in this statute. The petition noted that the statute applies not only to actions to enforce the overtime and recordkeeping provisions of the FLSA, but also to the Equal Pay Act, the Davis-Bacon Act, the Walsh-Healey Act, and the Age Discrimination in Employment Act (ADEA). Somewhat surprisingly, the petition did not endorse the Jiffy June standard that the Secretary had relied on in the District Court and the Court of Appeals, but instead invited us to adopt an intermediate standard. We granted certiorari, 484 U. S. 813 (1987), and now affirm. II Because no limitations period was provided in the original 1938 enactment of the FLSA, civil actions brought thereunder were governed by state statutes of limitations. In the Portal-to-Portal Act of 1947, 61 Stat. 84, 29 U. S. C. §§216, 251-262, however, as part of its response to this Court’s expansive reading of the FLSA, Congress enacted the 2-year statute to place a limit on employers’ exposure to unanticipated contingent liabilities. As originally enacted, the 2-year limitations period drew no distinction between willful and nonwillful violations. In 1965, the Secretary proposed a number of amendments to expand the coverage of the FLSA, including a proposal to replace the 2-year statute of limitations with a 3-year statute. The proposal was not adopted, but in 1966, for reasons that are not explained in the legislative history, Congress enacted the 3-year exception for willful violations. The fact that Congress did not simply extend the limitations period to three years, but instead adopted a two-tiered statute of limitations, makes it obvious that Congress intended to draw a significant distinction between ordinary violations and willful violations. It is equally obvious to us that the Jiffy June standard of willfulness — a standard that merely requires that an employer knew that the FLSA “was in the picture” — virtually obliterates any distinction between willful and nonwillful violations. As we said in Trans World Airlines, Inc. v. Thurston, 469 U. S., at 128, “it would be virtually impossible for an employer to show that he was unaware of the Act and its potential applicability.” Under the Jiffy June standard, the normal 2-year statute of limitations would seem to apply only to ignorant employers, surely not a state of affairs intended by Congress. In common usage the word “willful” is considered synonymous with such words as “voluntary,” “deliberate,” and “intentional.” See Roget’s International Thesaurus §622.7, p. 479; §653.9, p. 501 (4th ed. 1977). The word “willful” is widely used in the law, and, although it has not by any means been given a perfectly consistent interpretation, it is generally understood to refer to conduct that is not merely negligent. The standard of willfulness that was adopted in Thurston — that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute — is surely a fair reading of the plain language of the Act. The strongest argument supporting the Jiffy June standard is that it was widely used for a number of years. The standard was not, however, consistently followed in all Circuits. In view of the fact that even the Secretary now shares our opinion that it is not supported by the plain language of the statute, we readily reject it. We also reject the intermediate alternative espoused by the Secretary for the first time in this Court. Relying on the opinion of the Court of Appeals for the District of Columbia Circuit in Laffey v. Northwest Airlines, Inc., 185 U. S. App. D. C. 322, 352-354, 567 F. 2d 429, 461-462 (1976), cert. denied, 434 U. S. 1086 (1978), she argues that we should announce a two-step standard that would deem an FLSA violation willful “if the employer, recognizing it might be covered by the FLSA, acted without a reasonable basis for believing that it was complying with the statute. ” Brief for Petitioner 41. This proposal differs from Jiffy June because it would apparently make the issue in most cases turn on whether the employer sought legal advice concerning its pay practices. It would, however, permit a finding of willfulness to be based on nothing more than negligence, or, perhaps, on a completely good-faith but incorrect assumption that a pay plan complied with the FLSA in all respects. We believe the Secretary’s new proposal, like the discredited Jiffy June standard, fails to give effect to the plain language of the statute of limitations. Ordinary violations of the FLSA are subject to the general 2-year statute of limitations. To obtain the benefit of the 3-year exception, the Secretary must prove that the employer’s conduct was willful as that term is defined in both Thurston and this opinion. The judgment of the Court of Appeals is Affirmed. Compare Russo v. Trifari, Krussman & Fishel, Inc., 837 F. 2d 40, 45 (CA2 1988) (applying Thurston standard); Peters v. Shreveport, 818 F. 2d 1148, 1167-1168 (CA5 1987) (overruling Jiffy June, applying Thurston), cert. dism’d, 485 U. S. 930 (1988); and Walton v. United Consumers Club, Inc., 786 F. 2d 303, 308-311 (CA7 1986) (applying Thurston), with Brock v. Shirk, 833 F. 2d 1326, 1329 (CA9 1987) (adhering to Jiffy June); Crenshaw v. Quarles Drilling Corp., 798 F. 2d 1345, 1349-1350 (CA10 1986) (adhering to Jiffy June); Donovan v. Bel-Loc Diner, Inc., 780 F. 2d 1113, 1117 (CA4 1985) (adhering to Jiffy June); Secretary of Labor v. Daylight Dairy Products, Inc., 779 F. 2d 784, 789 (CA1 1985) (adhering to Jiffy June); and Brock v. Georgia Southwestern College, 765 F. 2d 1026, 1038-1039 (CA11 1985) (adhering to Jiffy June; no mention of Thurston). See 52 Stat. 1062, as amended, 29 U. S. C. § 206(d)(3). 46 Stat. 1494, as amended, 40 U. S. C. § 276(a) et seq. 49 Stat. 2036, as amended, 41 U. S. C. §35 et seq. (1982 ed. and Supp. IV). See 81 Stat. 604, as amended, 29 U. S. C. § 626(e)(1). See Lorillard v. Pons, 434 U. S. 575, 581, n. 8 (1978). The Portal-to-Portal Act also made the award of liquidated damages discretionary rather than mandatory and authorized exemptions for certain types of wage plans. In this case, respondent contended that one of those exemptions — the exemption for “Belo” plans, see 29 U. S. C. § 207(f) — was applicable. Petitioner directs us to a memorandum placed in the Congressional Record by Senator Taft during a 1974 debate over amendments to the FLSA that did not alter the language at issue here. See Brief for Petitioner 32. The memorandum described the Jiffy June standard as the then-prevailing interpretation of § 255(a). See 120 Cong. Rec. 4710 (1974). Petitioner concludes that “[notwithstanding that explicit focus on the judicial construction of willfulness, Congress amended Section 255 without addressing the ‘willful violation’ standard of Section 255(a).” Brief for Petitioner 33. This passing reference to the then-prevailing standard is too slender a reed, we think, to support the inference petitioner would have us draw, namely, that Congress approved the Jiffy June standard in enacting the 1974 amendments by mentioning it as the current interpretation and failing to amend that reading. The ease with which the Jiffy June standard can be met is exemplified in this case. As the District Court wrote: “[T]he vice president and general manager of the defendant was aware that the FLSA existed and that it governed overtime systems such as that used for the Richland mechanics. . .« Thus, although Isenberg did not state that he thought that the system used was contrary to the provisions of the FLSA, he did state that he knew that the FLSA applied. I believe that this admission is sufficient to satisfy the liberal willfulness requirement of the FLSA.” Donovan v. Richland Shoe Co., 623 F. Supp. 667, 671 (ED Pa. 1985). See, e. g., Coleman v. Jiffy June Farms, Inc., 458 F. 2d 1139, 1142 (CA5 1971), cert. denied, 409 U. S. 948 (1972); Brennan v. Heard, 491 F. 2d 1, 3 (CA5 1974); Marshall v. Union Pacific Motor Freight Co., 650 F. 2d 1085, 1091-1093 (CA9 1981); Marshall v. Erin Food Services, Inc., 672 F. 2d 229, 231 (CA1 1982); Donovan v. Carls Drug Co., Inc., 703 F. 2d 650, 652-653 (CA2 1983); EEOC v. Central Kansas Medical Center, 705 F. 2d 1270, 1274-1275 (CA10 1983). See, e. g., Hodgson v. Cactus Craft of Arizona, 481 F. 2d 464, 467 (CA9 1973) (willful violation after two prior warnings and unkept promises of compliance); Laffey v. Northwest Airlines, Inc., 186 U. S. App. D. C. 322, 352-355, 567 F. 2d 429, 459-462 (1976) (intermediate standard; see text following this footnote), cert. denied, 434 U. S. 1086 (1978); Donovan v. KFC National Management Co., 682 F. 2d 603, 605 (CA6 1982) (voluntary conduct that employer knows might violate Act is willful). The Secretary’s present opinion of the Jiffy June standard is expressed in her brief: “As this Court found in Thurston (469 U. S. at 128), the ‘in the picture’ standard seems to give too little effect to Congress’s express intent to create two tiers of liability in the FLSA limitations provision. Among employers eventually found to have violated the FLSA, it would seem that there are not many who did not know that the Act was ‘in the picture.’ It may be ‘virtually impossible for an employer to show that he was unaware of the Act and its potential applicability’ (ibid.). In addition, the Jiffy June standard would impose a third year of liability even on those employers who firmly and reasonably (albeit wrongly) believe that their pay practices are lawful, a result that seems counter to the concerns expressed in the legislative process during the 89th Congress.” Brief for Petitioner 39-40 (footnote omitted). We recognize that there is some language in Trans World Airlines v. Thurston, 469 U. S. 111 (1985), not necessary to our holding, that would seem to permit a finding of unreasonableness to suffice as proof of knowing or reckless disregard, and thus that would render petitioner’s standard an appropriate statement of the law. See id., at 126. Our decision today should clarify this point: If an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful under either petitioner’s test or under the standard we set forth. If an employer acts unreasonably, but not recklessly, in determining its legal obligation, then, although its action would be considered willful under petitioner’s test, it should not be so considered under Thurston or the identical standard we approve today. Of course, we express no view as to whether, under the proper standard, respondent’s violation was “willful.” That determination is for the District Court to make on remand from the Court of Appeals. 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_usc2sect	3102	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 49. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Bruce FOXWORTHY, Plaintiff-Appellant, v. HILAND DAIRY COMPANY, Defendant-Appellee. No. 92-6139. United States Court of Appeals, Tenth Circuit. May 3, 1993. Guy Clark of Northcutt, Clark, Gardner, Hron & Powell, Ponca City, OK, for plaintiff-appellant. Donald W. Jones and Rebecca A McCoy of Hulston, Jones, Gammon & Marsh, Springfield, MO, and Thomas D. Robertson and Angelyn L. Dale of Nichols, Wolfe, Stamper, Nally & Fallís, Inc., Tulsa, OK, for defendant-appellee. Before MOORE and BRORBY, Circuit Judges, and VAN BEBBER, District Judge. Honorable G. Thomas Van Bebber, District Judge, United States District Court for the District of Kansas, sitting by designation. VAN BEBBER, District Judge. Plaintiff-appellant Bruce Foxworthy appeals the district court judgment in favor of his former employer, Hiland Dairy Company (Hiland), finding Foxworthy exempt from the overtime provisions of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 207, based on application of the Motor Carrier Act exemption, 29 U.S.C. § 213(b)(1). Because Foxworthy was engaged in interstate commerce, as defined in the Motor Carrier Act, we affirm. Foxworthy worked as a route driver for Hiland from November 1990 to March 1991, delivering dairy products to Hiland’s regular customers in the Ponca City area of Oklahoma. Although he regularly worked more than forty hours per week, Foxworthy was not paid overtime compensation. Hiland’s milk and cheese products are processed in Fort Smith, Arkansas. Twice a week, Foxworthy would order milk and cheese products for his customers from the Fort Smith plant. Each of his customers had an authorized “buildup,” or level of Hi-land products which the customer had previously agreed to stock at its facility. Foxwor-thy would estimate the amount to be ordered based upon each customer’s historic sales. The products would be loaded on a refrigerated truck in Arkansas, marked specifically for the Ponca City route, and transported to a distribution center in Oklahoma City. There, the dairy products would simply be refrigerated overnight in the truck. The products would then be transported to a refrigerated trailer in Ponca City, Oklahoma, from which Foxworthy would load his delivery truck. A significant portion of Foxworthy’s route included delivery to Circle K convenience stores. Hiland provided dairy products for these stores with a privately labeled “Circle K” brand. These particular products were intended to be delivered to Circle K stores in Oklahoma from the moment they were loaded onto the truck in Fort Smith, Arkansas. Another component of Foxworthy’s job included collecting empty plastic crates from his customers for transportation back to the Fort Smith processing plant. Foxworthy would pick up approximately 130 to 150 empty crates per day. These plastic crates were indispensable to the processing procedures at the Arkansas plant. Foxworthy brought suit against Hiland for overtime compensation pursuant to the FLSA. Hiland removed the case to the United States District Court for the Western District of Oklahoma. After trial, the district court granted Hiland’s motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 52(c), finding that the Motor Carrier Act exemption applied to exempt Foxworthy from receiving overtime compensation. This appeal followed. In determining whether an employee falls within an exemption to the FLSA, the district court must first make findings as to certain factors, and then apply a legal standard. Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 1530, 89 L.Ed.2d 739 (1986). “ ‘[The] district court’s findings as to the underlying factors must be accepted unless clearly erroneous, while review of the ultimate question of [applicability of the exemption] is de novo.’” Dole v. Snell, 875 F.2d 802, 805 (10th Cir.1989) (quoting Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2d Cir.1988)); see also Icicle Seafoods, 475 U.S. at 712-14, 106 S.Ct. at 1529-30. Pursuant to 29 U.S.C. § 207(a), an employer must pay overtime compensation, at one and one-half times the regular wage, whenever an employee works more than forty hours per week. These requirements do not apply, however, to those employees for whom the Secretary of Transportation has power to establish qualifications and maximum hours. 29 U.S.C. § 213(b)(1). An employee of a private motor carrier is subject to the power of the Secretary of Transportation, and therefore exempt from the FLSA, if the employee in the performance of his duties moves goods in interstate commerce and affects the safe operation of motor vehicles on public highways. 49 U.S.C. §§ 3102, 10521; see United States v. American Trucking Ass’ns, 310 U.S. 534, 553, 60 S.Ct. 1059, 1068, 84 L.Ed. 1345 (1940) (construing former delegation of authority to Interstate Commerce Commission). The question becomes whether Fox-worthy, whose deliveries were performed solely within the State of Oklahoma, was engaged in interstate commerce. Transportation within a single state may remain “interstate” in character when it forms a part of a “practical continuity of movement” across state lines from the point of origin to the point of destination. Walling v. Jacksonville Paper Co., 317 U.S. 564, 568, 63 S.Ct. 332, 335, 87 L.Ed. 460 (1943). The characterization of such transportation as interstate or intrastate depends upon the “essential character” of the shipment. Texas N.O.R.R. v. Sabine Tram Co., 227 U.S. 111, 122, 33 S.Ct. 229, 233, 57 L.Ed. 442 (1913). ‘“Crucial to a determination of the essential character of a shipment is the shipper’s fixed and persisting intent at the time of shipment.’ ” International Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers v. Interstate Commerce Comm’n, 921 F.2d 904, 908 (9th Cir.1990) (quoting Armstrong World Indus., Inc., Transportation Within Texas, 2 I.C.C.2d 63, 69 (1986), aff'd sub nom. Texas v. United States, 866 F.2d 1546, 1556 (5th Cir.1989)). To make this determination, the Interstate Commerce Commission formulated a three-prong test in Ex Parte No. MC-48, Determination of Jurisdiction Over Transportation of Petroleum and Petroleum Products by Motor Carriers Within a Single State, 71 M.C.C. 17, 29 (1957). This test, set out in 29 C.F.R. § 782.7(b)(2), concludes that there is no fixed and persisting intent to ship goods in interstate commerce where: (i) At the time of shipment there is no specific order being filled for a specific quantity of a given product to be moved through to a specific destination beyond the terminal storage, and (ii) the terminal storage is a distribution point or local marketing facility from which specific amounts of the product are sold or allocated, and (iii) transportation in the furtherance of this distribution within the single State is specifically arranged only after sale or allocation from storage. Applying this test, the district court found that Hiland had a “fixed and persisting transportation intent beyond the terminal storage point at the time of shipment, knowing exactly to which customers its product is going to go and knowing, on the basis of history, who is going to buy what.” District Ct. Ruling, p. 7. This conclusion is well supported by the record. Hiland’s shipments were made pursuant to preexisting orders by specific customers who had agreed to stock a specific amount of a particular product. Because the customers had already agreed to purchase such amounts, the orders were for a “specific quantity,” similar to a requirements or supply contract. See, e.g., Middlewest Motor Freight Bureau v. Interstate Commerce Comm’n, 867 F.2d 458, 460 (8th Cir.) (when most shipments involved supply contracts or other arrangements entered into prior to shipment, chemical company intended for its products to continue on in interstate commerce), cert. denied, 493 U.S. 890, 110 S.Ct. 234, 107 L.Ed.2d 185 (1989); Baird v. Wagoner Transp. Co., 425 F.2d 407, 412 (6th Cir.) (when shipper had not entered into requirements contracts or specific quantity arrangements before shipping to terminal, no fixed and persisting transportation intent existed), cert. denied, 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 59 (1970); Galbreath v. Gulf Oil Corp., 413 F.2d 941, 945-46 (5th Cir.1969) (when ninety-seven percent of oil was shipped pursuant to contract, either for specific gallonage or to meet customers’ requirements, oil passed through the terminal storage in a “practical continuity of movement”); Shew v. Southland Corp. (Cabell’s Dairy Div.), 370 F.2d 376, 380 (5th Cir.1966) (when dairy products originated. out of state and were distributed within a day, pursuant to preexisting orders, delivery was part of a continuous movement in interstate commerce). The second and third prongs of the test also indicate that Foxworthy’s deliveries were interstate in nature. The products were not “sold or allocated” from the Ponca City trailer, with transportation being arranged subsequently. That is, “the products were not held in storage or inventory pending the receipt of actual orders.” Baird, 425 F.2d at 412. Instead, any “sale or allocation” of the products, if not made in Fort Smith, took place only after the goods had been transported to Hiland’s customers. Other factors identified as relevant to this determination include: the length of time movement of the product is interrupted by storage; whether the distribution center has a low “through-put” compared to its storage capability; whether the products are shipped on a “predetermined” ordering cycle; whether the carrier is in continuous possession of the product until delivery; whether the product is processed or commingled in any way at the storage location; whether the final destination is designated by the out-of-state shipper or by an instate intermediator; whether the goods were intended for particular customers; and whether temporary storage simply provides an efficient opportunity to convert the means of delivery from one form of transportation to another. See, e.g., Middlewest Motor Freight Bureau, 867 F.2d at 460-61; Texas v. United States, 866 F.2d at 1556-57; Baird, 425 F.2d at 412; Galbreath, 413 F.2d at 947. Here, the products were segregated from the moment they left Arkansas, destined for Foxworthy’s Ponca City customers, and were not commingled. They were stored for an extremely short period of time, never exceeding three days, and then were moved according to a predetermined schedule on a fairly regular basis. At least one of the purposes for maintaining the distribution trailer was to change the method of transporting the products to a smaller vehicle. Hiland maintained control over the dairy products throughout the entire journey and determined their final destination. The products were not processed in any way and were not held in storage or inventory pending the receipt of actual orders. For these reasons, the dairy products did not come to rest at the Ponca City trailer and their delivery was simply a continuation of their interstate movement from Fort Smith, Arkansas, to Ponca City, Oklahoma. In any event, we hold that Foxworthy’s transportation of the empty milk crates is sufficient, in itself, to support his exemption from the overtime provisions of the FLSA The crates were picked up on a daily basis, formed a significant portion of Foxworthy’s duties, and were shipped immediately from Oklahoma to the processing plant in Arkansas. We held in Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1025 (10th Cir.), cert. denied, — U.S. -, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992), that the regular pickup of empty containers, destined for out-of-state facilities, both placed employees in interstate commerce and exempted them from the overtime provisions of the FLSA Because the route drivers’ duties had a “substantial effect” on motor vehicle safety, they were subject to the power of the Secretary of Transportation, and thus were not covered by the FLSA Thomas controls the facts in this case. The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. . This authority, previously vested in the Interstate Commerce Commission, was transferred to the Department of Transportation in 1983. See P.L. 97-449, 96 Stat. 2413, 2438 (1983). Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 49? Answer with a number. Answer:
sc_caseorigin	046	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. WATTS v. UNITED STATES. No. 1107, Misc. Decided April 21, 1969. Joseph Forer for petitioner. Solicitor General Griswold for the United States. Ralph J. Temple, Melvin L. Wulf, and Lawrence Speiser for the American Civil Liberties Union et al. as amici curiae. Per Curiam. After a jury trial in the United States District Court for the District of Columbia, petitioner was convicted of violating a 1917 statute which prohibits any person from “knowingly and willfully . . . [making] any threat to take the life of or to inflict bodily harm upon the President of the United States ....” The incident which led to petitioner’s arrest occurred on August 27, 1966, during a public rally on the Washington Monument grounds. The crowd present broke up into small discussion groups and petitioner joined a gathering scheduled to discuss police brutality. Most of those in the group were quite young, either in their teens or early twenties. Petitioner, who himself was 18 years old, entered into the discussion after one member of the group suggested that the young people present should get more education before expressing their views. According to an investigator for the Army Counter Intelligence Corps who was present, petitioner responded: “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.” “They are not going to make me kill my black brothers.” On the basis of this statement, the jury found that petitioner had committed a felony by knowingly and willfully threatening the President. The United States Court of Appeals for the District of Columbia Circuit affirmed by a two-to-one vote. 131 U. S. App. D. C. 125, 402 F. 2d 676 (1968). We reverse. At the close of the Government’s case, petitioner’s trial counsel moved for a judgment of acquittal. He contended that there was “absolutely no evidence on the basis of which the jury would be entitled to find that [petitioner] made a threat against the life of the President.” He stressed the fact that petitioner’s statement was made during a political debate, that it was expressly made conditional upon an event — induction into the Armed Forces — which petitioner, vowed would never occur, and that both petitioner and the crowd laughed after the statement was made. He concluded, “Now actually what happened here in all this was a kind of very crude offensive method of stating a political opposition to the President. What he was saying, he says, I don’t want to shoot black people because I don’t consider them my enemy, and if they put a rifle in my hand it is the people that put the rifle in my hand, as symbolized by the President, who are my real enemy.” We hold that the trial judge erred in denying this motion. Certainly the statute under which petitioner was convicted is constitutional on its face. The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence. See H. R. Rep. No. 652, 64th Cong., 1st Sess. (1916). Nevertheless, a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech. The judges in the Court of Appeals differed over whether or not the “willfullness” requirement of the statute implied that a defendant must have intended to carry out his “threat.” Some early cases found the will-fullness requirement met if the speaker voluntarily uttered the charged words with “an apparent determination to carry them into execution.” Ragansky v. United States, 253 F. 643, 645 (C. A. 7th Cir. 1918) (emphasis supplied); cf. Pierce v. United States, 365 F. 2d 292 (C. A. 10th Cir. 1966). The majority below seemed to agree. Perhaps this interpretation is correct, although we have grave doubts about it. See the dissenting opinion below, 131 U. S. App. D. C., at 135-142, 402 F. 2d, at 686-693 (Wright, J.). But whatever the “willfullness” requirement implies, the statute initially requires the Government to prove a true “threat.” We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). The language of the political arena, like the language used in labor disputes, see Linn v. United Plant Guard Workers of America, 383 U. S. 53, 58 (1966), is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted and the judgment of the Court of Appeals is reversed. The case is remanded with instructions that it be returned to the District Court for entry of a judgment of acquittal. It is so ordered. Mr. Justice Stewart would deny the petition for certiorari. Mr. Justice White dissents. 18 U. S. C. §871 (a) provides: “Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” 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_casetyp1_7-2	C	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". WAYNE CHEMICAL, INC., Robert C. Tribolet and Thomas C. Tribolet, Plaintiffs-Appellees, v. COLUMBUS AGENCY SERVICE CORPORATION, Defendant-Appellant. No. 77-1281. United States Court of Appeals, Seventh Circuit. Argued Sept. 29, 1977. Decided Nov. 8, 1977. Clifford E. Simon, Jr., Fort Wayne, Ind., Duke W. Thomas, Columbus, Ohio, for defendant-appellant. Theodore L. Sendak, Atty. Gen., Indianapolis, Ind., David J. Brummond, Milwaukee, Wis., for amicus curiae. Sherrill William Colvin, Vincent J. Heiny, Fort Wayne, Ind., for plaintiffs-appellees. Before SWYGERT, CUMMINGS and TONE, Circuit Judges. TONE, Circuit Judge. Thomas C. Tribolet suffered an injury that made him a quadriplegic while he was 18 years old and still covered by a group medical insurance policy purchased by his father’s employer. The insurance agency through which the policy had been obtained had changed insurers 24 days earlier, and it ultimately developed that, under the policy issued by the new carrier, Thomas’ benefits would end on his 20th birthday. This result was not permitted under Indiana law. Also, the new insurer was not authorized to insure risks in Indiana, which made the agent liable under Indiana law if the insurer defaulted on its obligation, as it ultimately did. The determinative question on this interlocutory appeal is whether these provisions of Indiana' law favorable to Thomas were preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq., commonly known as ERISA. In this action by Thomas, joined by his father and his father’s employer, against the agent and others, the District Court held that ERISA did preempt state law but that a federal common law should be developed to fill the regulatory void created by preemption, and that under that federal common law Thomas’ insurance benefits could not be terminated. The court entered a preliminary injunction against the agent enjoining it from terminating coverage and also ordering it to make available to Thomas a policy of individual hospital and surgical insurance, as provided by the policy that had been superseded 24 days before Thomas’ injury. Wayne Chemical, Inc. v. Columbus Agency Service Corp., 426 F.Supp. 316 (N.D.Ind.1977). We modify the order and affirm it as modified, but rely on reasons different from those relied on by the District Court. The Initial Purchase of Insurance In 1974 plaintiff Wayne Chemical, Inc. purchased group medical insurance coverage for several of its employees and their families from an insurance salesman for a Fort Wayne, Indiana, insurance firm, defendant O’Rourke, Andrews & Maroney, Inc. One of these employees was plaintiff Robert C. Tribolet, father of Thomas. The O’Rourke firm obtained the insurance, through an intermediate broker or agent, from defendant Columbus Agency Service Corporation, also known as “CASCO.” The latter firm describes itself in its brief as “an insurance and health plan brokerage company,” which “acts as agents for entities such as National Multiple Employers Foundation and Association Life Insurance Company.” Apparently affiliated with CAS-CO in some way are the CASCO Insurance Trust Fund and its trustees, about whom the record tells us little else. CASCO placed the insurance with Association Life Insurance Company. The insurance salesman from the O’Rourke firm filled in, and Wayne’s president signed, an application for insurance addressed to Association Life. The printed application form included a section entitled “Employer Agreement and Subscription to Trust,” which recited that Wayne “does hereby apply for Group Insurance Benefits set forth in the proposal dated 4-29-74 and subscribes to the Agreement and Declaration of Trust establishing the . . .Insurance Trust Fund.” The proposal referred to is not in the record. No agreement and declaration of trust appears in the record, nor does it appear that Wayne was ever shown or ever signed such a document. As evidence of the insurance, Wayne received a “certificate of insurance,” which described the Trustees of the CASCO Insurance Trust Fund as the “policyholder,” defined the “certificateholder” as the insured employee, and referred to Group Policy No. 1438, and in which “certain provisions of the Policy [were] summarized.” Apparently neither Wayne nor its employees obtained copies of the policy. The Transfer tó a New Carrier The insurance continued with Association Life until July 1, 1975. Sometime earlier that year Wayne received an undated notice from CASCO bearing the salutation, “To our policyholders,” which stated: “We have been advised by the carrier of our CASCO Insurance program, the Association Life Insurance Company, that effective July 1, 1975, a rate increase of approximately 100% will be necessary. We wish to advise you that effective July 1,1975, a new carrier with increased coverages will be made available for continuance of your coverages. “We feel that the new plan will give you a much broader base of coverage and will be a part of a larger block of business; therefore, this should be a very distinct advantage in any cost calculations in the future. We will keep you advised as to the benefits of the new plan and the cost structure within the next ten days.” Subsequently Wayne received another undated notice from CASCO with the salutation, “To our policyholders,” which stated: “We are very pleased to announce that arrangements have been made to transfer your coverage to a new carrier. This coverage will be automatic as of July 1, 1975. “You will notice that your attached premium statements for July are still on the old basis. Effective Aug. 1, 1975, we will have an increase in the health premium of approximately 12V2%. Within a few weeks we will make available for you the option of maintaining your original plan with a few minor changes or a plan giving increased benefits. This has been a very monumental task and we want to thank you for your patience and understanding while these details have been worked out.” CASCO sent a copy of the latter notice to its agents with a separate notice advising the agents as follows: “We are attaching a copy of the letter that was mailed to our policyholders with their July premium statements. We will have a plan very similar to their present coverage with a few minor changes. We will also have two other plans carrying increased benefits that will also be available through another carrier. We feel that by utilizing two different carriers that we can give you a better cross section of coverages than by using one carrier and one plan.” The O’Rourke firm received copies of the latter two notices. All of these.notices were presumably sent before July 1, 1975 and in any event before Thomas Tribolet’s tragic accident on July 24 of that year. The last transition notice received by Wayne from CASCO bore the salutation, “Dear Policyholder,” and stated as follows: “As mentioned in our last letter to you, effective August 1 the rates for your group insurance have been increased. The new rates, as reflected on the accompanying billing, are 12V2% higher than before but affect only the health portion of your statement. Also, because of increasing costs we have been forced to raise the administration charge slightly. We hope you understand the necessity of these increases and realize that we are doing our utmost to offer you the best available coverage at the lowest possible cost. “There is also one change in your coverage which I think you will agree is an improvement. You now have a $100 calendar year deductible with a one-year accumulation period rather than a $50 deductible which had to be accumulated in 90 days. If you have any questions about this or any aspects of your coverage, please contact your agent who will be happy to answer them for you.” Neither Wayne nor the Tribolets were advised of the identity of the “new carrier” or of any adverse change in the terms of coverage until many months after the changeover. As late as November 5, 1975 Wayne, after having repeatedly requested copies of the new policy, received a letter from the O’Rourke firm stating as follows: “Per our discussion, enclosed are several outlines of your group insurance coverage. The only changes made in the program from the previous coverage was the deductible. I am told that new certificates are currently at the printers.” The “outline” referred to in the letter said nothing about any changes in policy terms with respect to either continuation of coverage for an insured disabled at the time coverage would otherwise terminate or con-vertability at that time without evidence of insurability. It ultimately appeared, however, that the new coverage was, with respect to these matters, materially less advantageous to beneficiaries than the Association Life policy. This fact was first disclosed in late December 1975 when CASCO sent Wayne a pamphlet describing the new coverage. The front cover of the pamphlet bears the title, “Comprehensive Major Medical Benefits,” the name CASCO combined with the initials NMEF in a pictorial trademark, and the name National Multiple Employers Foundation. On the back cover appears the recital, “Plan Design and Administration by CASCO” and the name Columbus Agency Service Corporation. The inside of the cover bears the following legend: CASCO NATIONAL MULTIPLE EMPLOYERS FOUNDATION THIS CERTIFICATE IS ISSUED TO EFFECTIVE DATE CERTIFICATE NUMBER R. C. Tribolet 6/1/74 005 PLAN DOCUMENT NUMBER 1438-36 EMPLOYER Wayne Chemical Company IS A PARTICIPATING EMPLOYER IN THE CASCO INDUSTRY TRUST. COVERAGE PROVIDED MAXIMUM $250.000.00 comprehensive MAJOR MEDICAL BASED ON BENEFITS IN THE PARTICIPATION AGREEMENT ON FILE. The record before us contains, in addition to the pamphlet just described, an unsigned document entitled “National Multiple Employers Foundation Plan and Trust Agreement” and dated January 1,1975, which did not come to light until after this action was filed. Named as parties are NMEF, Nicholas J. Dolwett, and Lorraine Dolwett, the Dolwetts being designated as trustees. The document purports to establish a trust fund to be funded by “contributing employers,” provides that the fund is to be administered “for the exclusive benefit of the participants in the plan, or their beneficiaries,” and recites, “The plan, the trust agreement and the Trust Fund created hereby are intended to comply with all the requirements of the Employee Retirement Income Security Act of 1974 as the same may be amended from time to time.” The provisions of the “plan” are not set forth. Neither Wayne nor the Tribolets knew of this document, the parties to it, or the plan or trust fund which it purported to establish. As we have noted, the communications Wayne received from CASCO indicated that Wayne was CASCO’s policyholder and that CASCO had merely shifted the insurance from one carrier to another. Wayne’s president testified that not until 1976, after Wayne had engaged counsel, was it informed for the first time “that we did not have insurance but some other program which I frankly do not understand.” He also testified that after the changeover Wayne continued to receive premium statements and to pay premiums as it had before: “We have operated as the initial major medical thing that we thought that we had.” Authorization To Transact Insurance Business in Indiana Transaction of insurance business in Indiana without a certificate of authority from the Commissioner of Insurance is forbidden, with certain exceptions. Ind.Code § 27 — 4-5-2(a). It appears to be undisputed that, neither NMEF nor the trust created by the agreement just described had an Indiana certificate, and that unless they were protected by the preemption provisions of ERISA, they were in violation of the Indiana unauthorized insurance statute. When an unauthorized insurer defaults on an insurance contract subject to Indiana law, any person who assisted in the procurement of the insurance is liable on the coverage. Ind.Code § 27-4-5-2(c)(2). Purported Termination of Coverage Following Thomas C. Tribolet’s accident, his hospital and medical bills were sent by Wayne to the O’Rourke firm, which in turn sent them to CASCO. Some of these bills were paid, apparently by NMEF, but the later ones were not. On December 23 CAS-CO notified the O’Rourke firm that Thomas’ coverage would terminate when he reached age 19 on January 4, 1976 and that expenses incurred after that date would not be reimbursed. The O’Rourke firm so advised Wayne by letter dated December 31, 1975. Later, however, the date on which reimbursement for expenses was to terminate was extended to January 4, 1977 by a letter written by an attorney on behalf of NMEF. A protest by counsel retained by the Tribolets that the termination-of-coverage provision of the CASCO-NMEF insurance was in conflict with Ind.Code § 27-8-5-10(B)(4) was rejected by NMEF’s attorney on the ground that ERISA preempted that state statute. NMEF is now, it is conceded, insolvent and unable to pay claims. This Action Plaintiffs initially brought this action in an Indiana state court against CASCO, which removed the case to the District Court on the ground of diversity of citizenship. NMEF, Nicholas J. Dolwett (designated as “Administrator”), and the O’Rourke firm were added as defendants after removal. Following an evidentiary hearing, the preliminary injunction described above was entered against CASCO, which is the only appellant. CASCO's position on appeal is that the District Court properly held that ERISA preempted the Indiana insurance statute but erred in determining liability on the basis of federal common law. In CASCO’s view, ERISA preempted Indiana regulation and that is the end of the matter. CASCO also argues that in any event the District Court should not have ordered it to prevent termination of insurance coverage or issue a conversion policy because it is impossible for CASCO to take such action. It is also argued that the injunction is void for vagueness, and that bond should have been required. I. This being an interlocutory appeal, our principal concern is whether it is probable that Thomas C. Tribolet will ultimately be entitled to the relief granted by the preliminary injunction. The other questions typically present in such an appeal, irreparable injury, etc., are not seriously in issue. Because of the view we take of the case, it is unnecessary for us to reach the issue on which the District Court rested its decision, viz., the rule to be adopted as federal common law when state regulatory statutes are preempted. We may, of course, affirm on any ground that finds support in the record. Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Wright v. Heizer, 560 F.2d 236 at 246 (7th Cir. 1977). A. The first issue is whether the provisions of the Indiana Insurance Code that would otherwise protect Thomas from termination of his benefits were preempted by § 514(a) of ERISA, 29 U.S.C. § 1144(a). The answer, in our view, is negative if Wayne was not a participant in an “employee benefit plan” that issued the insurance in question, as the quoted term is defined in the Act. In that event the transaction remained subject to state regulation. If, on the other hand, Wayne was a participant in such a plan, the state laws, “insofar as they may . relate to the plan,” were preempted, § 514(a). Although § 514(b)(2)(A) exempts state insurance regulation from preemption, that exemption is qualified by § 514(b)(2)(B), which states that an “employee benefit plan” is not “deemed to be an insurance company or other insurer.” 29 U.S.C. § 1144(b)(2). The definition that controls this case appears in § 3(1) of the Act,- 29 U.S.C. § 1002(1), which defines “employee welfare benefit plan,” the kind of “employee benefit plan” alleged to be present, in this case. To meet the definition, a plan must be “established or maintained by an employer or by an employee organization, or by both,” and even then it is such an “employee benefit plan” only “to the extent that [it] was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise” medical and hospital benefits. CASCO contends that “the National Multiple Employers Foundation Plan,” presumably referring to the plan purportedly established by the unsigned “National Multiple Employers Foundation Plan and Trust Agreement,” described above, was an “employee benefit plan” and that Wayne was a participant in that plan and maintained it by paying premiums. The District Court took the same view of the transaction, although, as we have noted, he went on to hold against CASCO on an unrelated ground. The record contains no indication, however, that any plan or trust created by the unsigned agreement was ever involved in the Wayne insurance transaction. NMEF itself appears to have provided the insurance to Wayne, for it is the entity or organization that, with CASCO, is named in the pamphlet summarizing coverage and that dealt with the Tribolets when they asserted their claim. NMEF seems not to have been an “employee benefit plan,” and CASCO does not argue that it was. We can perceive no plausible basis for treating insurance obtained for Wayne by CASCO from NMEF as covered by ERISA or as not subject to regulation by Indiana. Even if we assume that the plan purportedly created by the agreement was the insurer, and also assume that the plan was maintained or established by employers for the purpose of providing medical and hospital insurance rather than merely a proprietary insurance venture designed to take advantage of the void created by ERI-SA’s preemption of state regulation, the ERISA preemption provisions do not apply, because Wayne was not one of those employers. Wayne had no knowledge of the existence of such a plan or of NMEF until long after July 1975 and never entered into any agreement to establish any plan. Nor is there any basis in the record for CASCO’s contention that Wayne designated CASCO to act as Wayne’s agent for the purpose of bringing about participation by Wayne in a plan. See § 3(5), 29 U.S.C. § 1002(5). An employer does not become a participant in, or establish or maintain, a plan by applying for insurance and paying premiums for what it understands to be insurance without any knowledge that the plan exists. Establishing, maintaining, or participating in a plan requires an intent, which presupposes an awareness of the existence of the plan. Wayne was therefore not among the “participants” in the NMEF plan, if indeed there were any. That plan was an employee benefit plan, § 3(1) provides, only “to the extent” that it was maintained to provide “its participants or their beneficiaries” with insurance. If it provided insurance to Wayne, a nonparticipant, it was not acting as “an employee benefit plan,” and the transaction was therefore not subject to preemption but was left by § 514(b)(2)(A) to regulation by Indiana law. We find nothing in the legislative history of ERISA inconsistent with our interpretation of the establishment, maintenance, and participation requirements. Congress would have had no reason to exempt from state regulation insurance programs that are established and maintained by entrepreneurs for their own profit. This conclusion is confirmed by a recent report of the House Committee on Education and Labor, which, after a description of entrepreneurial programs such as the one before us, contains the following statement: “They are no more ERISA plans than is any other insurance policy sold to an employee benefit plan. “To the extent that such programs fail to meet the definition of an ‘employee benefit plan,’ state regulation of them is not preempted by section 514, even though such state action is barred with respect to the plans which purchase these ‘products.’ “We are mindful of the potentially harmful effects of an overly broad interpretation of the term employee benefit plan when coupled with the policy of section 514. As we have already noted, we do not believe that the statute and legislative history will support the inclusion of what amounts to commercial products within the umbrella of the definition. Where a plan is, in effect, an entrepreneurial venture, it is outside the policy of section 514 for reasons we have already stated. In short, to be properly characterized as an ERISA employee benefit plan, a plan must satisfy the definitional requirement of section 3(3) in both form and substance. We most earnestly encourage private persons, in particular the membership of the National Association of State Insurance Commissioners, and urge the Department of Labor, to ■take appropriate action to prevent the continued wrongful avoidance of proper state regulation by these entities.” Activity Report of the Committee on Education and Labor, H.R.Rep. No. 94-1785, 94th Cong., 2d Sess. 48 (1977). CASCO does not contend that at the time of Thomas’ accident the CASCO Insurance Trust was the employee benefit plan for purposes of ERISA. That contention would be unavailing for two reasons. First, Wayne never became a participant in that trust for the same reason it never became a participant in the NMEF plan: it had no knowledge of such a trust and was not a party to any agreement to establish, maintain, or participate in such a trust. Thus, even if that trust was an employee benefit plan and it, rather than CASCO, had placed the insurance with NMEF, which does not appear to have been the case, NMEF would not have been thereby exempted by reason of ERISA, from state regulation. Second, the ERISA exemption of a plan does not extend to the insurer, as the House Committee report just referred to recognizes, or to an insurance policy purchased by the plan from an insurer, as the First Circuit has held in Wadsworth v. Whaland, 562 F.2d 70 (1st Cir. 1977). NMEF and insurance policies issued by it are therefore subject to state regulation whether or not the insurance was purchased by an employee benefit plan, and CASCO, which assisted in placing the insurance with NMEF, is subject to whatever consequences attach to that action under Indiana law. B. Having concluded that the Indiana law governing the insurance transaction in issue here was not preempted by ERISA, we apply that law to the facts as they appear on the present record. The insurance was obtained from an unauthorized insurer acting in violation of Ind.Code § 27-4-5-2(a). When that insurer defaulted, CASCO, as a person who assisted in the procurement of the unauthorized insurance, is liable on the Tribolet claim under Ind.Code § 27-4-5-2(c)(2). The obligation that falls to CASCO, is defined by Ind.Code § 27-8-5-10(B)(4), which requires that a group hospital and medical policy providing for termination of coverage upon a dependent’s reaching a given age must also provide that nevertheless coverage does not terminate . . while the child is and continues to be both (a) incapable of self-sustaining employment by reason of mental retardation or physical handicap and (b) chiefly dependent upon the employee or member for support and maintenance.” The NMEF policy that became effective on July 1,1975 did not contain such a provision protecting a disabled dependent. The law will treat it as if it did and impose on CASCO the obligation to make good on the imputed provision. For the foregoing reasons it appears probable that CASCO will ultimately be held obligated to provide continuing hospital and medical coverage to Thomas C. Tribolet while he continues to be “both (a) incapable of self sustaining employment by reason of . physical handicap and (b) chiefly dependent upon the employee ■ for support and maintenance.” Ind.Code § 27-8-5-10(B)(4). The preliminary injunction may properly enforce this obligation pendente lite. II. CASCO also argues that it is unable to prevent coverage from terminating, as the preliminary injunction order now provides. This may be technically correct. The terms of the injunction order should be modified to reflect that CASCO is itself liable on the obligation to continue coverage and to enforce the obligation against CASCO pen-dente lite. The Association Life certificate in force until July 1, 1975 provided that an insured, upon termination of his eligibility as a spouse or child of the employee-certificate-holder, could convert to an individual policy of medical insurance in the form then being issued by the company. The NMEF policy did not include such a conversion privilege. The District Court ordered CASCO to furnish a conversion policy. Inasmuch as CASCO will be required by the preliminary injunction to provide the equivalent of continuing coverage, we see no need to reach the question of whether CASCO is also obligated to furnish a conversion policy and no need for the preliminary injunction to require that such a policy be made available. Whether the final judgment should include such a requirement will depend upon the consequences which Indiana law attaches to CASCO’s representation to Wayne Chemical that the new coverage would be no less favorable than the coverage which it superseded on July 1, 1975. Determination of that question should await the merits. The order should be modified to delete the requirement that CASCO issue a conversion policy. In view of our modification of the District Court’s injunction, it is unnecessary to address the argument that the injunction, insofar as it ordered CASCO to obtain a conversion policy for Thomas Tribolet, was vague and failed to comply with Rule 65(d), Fed.R.Civ.P. Finally, it was not error for the District Court to issue the preliminary injunction without a bond. Under appropriate circumstances bond may be excused, notwithstanding the literal language of Rule 65(c). Scherr v. Volpe, 466 F.2d 1027, 1035 (7th Cir. 1972). Indigence is such a circumstance. Denny v. Health and Social Services Board, 285 F.Supp. 526, 527 (E.D.Wis. 1968) (three-judge court); Bass v. Richardson, 338 F.Supp. 478, 490 (S.D.N.Y.1971). The injunction was in favor riot of Wayne Chemical or Thomas’ father, but of Thomas himself. His indigency, proved by the testimony of his mother, justified the court in excusing bond. The order of the District Court is affirmed as modified. AFFIRMED AS MODIFIED. . CASCO, according to its letterhead, is a division of Dennis Clark & Associates, Inc. It appears in this action, however, in the name of Columbus Agency Service Corporation. . One of the exceptions applies when a master policy for group sickness and accident insurance was lawfully issued and delivered in a state “in which the insurer was authorized to do an insurance business to a group organized for purposes other than the procurement of insurance, and where the policyholder is domiciled or otherwise has a bona fide situs.” Ind. Code § 27-4-5-2(a)(5). This exception was apparently relied upon in connection with the insurance obtained from Association Life, which had been authorized to do business in Tennessee, where the CASCO Insurance Trust Fund claimed to have a bona fide situs, although it does not appear that the latter was organized for purposes other than the procurement of insurance. . When questioned by the court at oral argument about why the Indiana unauthorized insurer statute did not apply, counsel for CASCO did not contend that NMEF or'the NMEF trust met the requirements of that statute. He relied solely on ERISA’s preemption provision. . Section 514(a) provides that, except as provided in § 514(b), the provisions of ERISA’s Titles I (“Protection of Employee Benefit Rights”) and IV (“Plan Termination Insurance”) “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 4(a) and not exempt under section 4(b).” 88 Stat. 897 (1974). Section 4(a) describes “any employee benefit plan . . established or maintained ... by any employer . . . or . . any employee organization ... or both” (in-or-affecting-commerce qualifications omitted). 88 Stat. 839 (1974). The exemptions of § 4(b), 88 Stat. 839-840 (1974), are not applicable in this case. . Section 514(b)(2): “(A) Except as provided in subparagraph (B), nothing in this title shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking or securities. “(B) Neither an employee benefit plan described in section 4(a), which is not exempt under section 4(b) (other than a plan established primarily for the purpose of providing death benefits), nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.” 88 Stat. 897 (1974). . The term “employee benefit plan” is defined in § 3(3) to mean either an “employee welfare benefit plan” or an “employee pension benefit plan” or a plan which is both. 88 Stat. 833 (1974). Inasmuch as no “employee pension benefit plan,” defined in § 3(2), id., as having to do with pension benefits or retirement income for employees, is involved here, we need to be concerned only with the kind of “employee benefit plan” that is an “employee welfare benefit plan.” . Section 3(1): “. . . any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits.....” 88 Stat. 833 (1974). . Although the court spoke of “the plan in question here” without naming it, 426 F.Supp. at 320, we interpret the reference as being to the purported plan described in the text, and CASCO appears to do so also. . “Employer” is defined in § 3(5) to mean “any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association of employers acting for an employer in such capacity.” 88 Stat. 834 (1974). . As the program was held to be in Bell v. Employee Security Benefit Association, 437 F.Supp. 382 (D.Kan.1977). See also Activity Report of the Committee on Education and Labor, H.R.Rep. No. 94-1785, 94th Cong., 2d Sess. 48 (1977), cited in the text, infra. . The question we decide appears not to have been addressed in the reports or the debates on ERISA. Therefore, no purpose would be served by a discussion of the legislative history, which has been reviewed elsewhere. See, e. g., Hewlett-Packard Co. v. Barnes, 425 F.Supp. 1294, 1298-1300 (N.D.Cal.1977). . We do not construe the “Employer Agreement and Subscription to Trust” which was a part of the application for insurance addressed to Association Life as such an agreement. The application form recites that the applicant “subscribes to the agreement and declaration of trust establishing the . . . . Insurance Trust Fund,” but the fund is not named and no trust agreement appears to have ever been submitted to or signed by Wayne Chemical. Receipt by Wayne of the certificate of insurance issued by Association Life which showed “Trustees of the CASCO Insurance Trust Fund” as the “policyholder” could hardly constitute an agreement by Wayne to become a participant in an employee benefit plan. It is to be recalled also that the correspondence received by Wayne from CASCO about the change to a new carrier was addressed to “our policyholders.” 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:
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. Daniel KIM and Richard Bright, Appellants, v. COPPIN STATE COLLEGE; Calvin W. Burnett, individually and as President of Coppin State College; J. Carson Dowell, Chairman; H. Gray Reeves; Edgar F. Berman; George M. Brooks; Charles H. Foelber; Victor Frenkil; A. Harris Grossman; Joyce R. Phillips; James A. Sensenbaugh; George T. Stansbury; The Honorable J. Millard Tawes, individually and constituting the Board of Trustees of the State Universities and Colleges of Maryland, Appellees. No. 79-1386. United States Court of Appeals, Fourth Circuit. Argued May 7, 1981. Decided Oct. 26, 1981. Glen Marcus Fallin, Baltimore, Md., for appellants. William A. Kahn, Asst. Atty. Gen., Baltimore, Md. (Stephen H. Sachs, Atty. Gen. of Maryland, Baltimore, Md., on brief), for ap-pellees. Before WINTER, Chief Judge, and RUSSELL and WIDENER, Circuit Judges. WINTER, Chief Judge: Plaintiffs, two members of the faculty of Coppin State College in Baltimore, appeal from the district court’s directed verdict in favor of defendants issued after the jury failed to reach a determination of their claims of discrimination in compensation, promotion and other working conditions under 42 U.S.C. §§ 1981 and 1983 (1976) and from the district court’s findings that defendants did not violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976). We affirm the judgment of the district court on the issues of promotion and other working conditions, but vacate the judgment on the issue of alleged discrimination in the compensation of plaintiffs and remand the case for a new trial. I. Coppin State College in Baltimore, Maryland, is a college predominantly attended by blacks, and its administration is dominated by blacks, although there are a substantial number of whites on the faculty. The defendant college president, Calvin W. Burnett, Ph.D., is black. Plaintiff, Daniel Kim, Ph.D., a full professor at Coppin State since 1970, was born in Korea and is of Asian extraction. Plaintiff, Richard Bright, Ph.D., an associate professor at the school since 1969, is white. Plaintiffs originally filed charges with the federal Equal Employment Opportunity Commission on June 26, 1974, apparently alleging discrimination in their working conditions. The Commission dismissed the charges and issued a right to sue letter. Plaintiffs thereupon sued Coppin State, Burnett and the Board of Trustees of the State Universities and Colleges of Maryland on February 4, 1977, alleging discrimination in promotion, compensation and other working conditions in violation of the Reconstruction Civil Rights Acts, 42 U.S.C. §§ 1981 and 1983 (1976), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976). Plaintiffs do not contest the district court’s dismissal of the Maryland’s university trustees from the case or its dismissal of the §§ 1981 and 1983 claims against the college. Professors Kim and Bright sought to prove at trial, among other things, that the college administration impermissibly discriminated against them because of their race with respect to telephone service, secretarial assistance, office space, reimbursement for travel expenses, the preparation and administration of a National Science Foundation grant, sabbatical leave, promotion and compensation. The jury failed to reach agreement on a verdict, and the district court declared a mistrial. Defendants moved for a directed verdict, which the district court granted, incorporating its findings as the trier of fact of the claims under Title VII. It determined that plaintiffs had failed to substantiate many of their allegations, that some were barred by limitations, that they had failed to rebut the legitimate nondiscriminatory reasons offered by defendants to justify their actions as required by Title VII, and that they had failed to establish the discriminatory purpose of defendants’ actions as required by the Reconstruction Civil Rights Acts. Plaintiffs have circumscribed their contentions on this appeal. They assert that the district court applied an improper legal standard in granting the directed verdict, that substantial issues of material facts remained in controversy with respect to compensation, promotion and sabbatical leave, that the district court’s findings under Title VII were clearly erroneous, that it improperly excluded evidence, and that they are entitled to attorneys’ fees as prevailing parties in the litigation. II. At the outset, the different legal standards applicable to this case should be noted. Under plaintiffs’ Reconstruction Civil Rights Acts claims, the jury served as the trier of fact, and, in order to prevail, plaintiffs had the burden of proving Dr. Burnett’s discriminatory purpose in taking employment actions adverse to them. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Under their Title VII claims, the district court served as the trier of fact, and, in order to prevail, plaintiffs had the burden of proving employment discrimination. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny, the college could dispel the inference of discrimination raised by plaintiffs’ showing of disparate treatment by demonstrating legitimate, nondiscriminatory reasons for its actions, which plaintiffs in turn could rebut by exposing such reasons as mere pretexts. The Title VII findings of the district court can only be reversed on appeal if they are clearly erroneous. That would be also true of a jury verdict on the Reconstruction Civil Rights Acts claims. In this case, however, the district court directed a verdict for defendants after the jury failed to agree on a verdict. Plaintiffs argue that a directed verdict is appropriate only under circumstances identical to that under which summary judgment is appropriate, so that it may not be granted unless no genuine issue of material fact remains after resolving all conflicting inferences in the evidence in their favor. The legal standards for directed verdicts and summary judgment are indeed similar, but they are sufficiently distinct in a way that bears on this case. In considering a motion for summary judgment, the district court must give the benefit of the doubt to the party who asserts he can prove a dubious proposition at trial. In considering a motion for a directed verdict, in contrast, the district court has had the benefit of seeing what the parties alleged they could prove prior to trial tested in the crucible of open court. Accordingly, the district court is entitled to grant a directed verdict even though some evidence supports the opposite position so long as “there are no controverted issues of fact upon which reasonable minds could differ.” Proctor v. Colonial Refrigerated Transp., Inc., 494 F.2d 89, 93 (4 Cir. 1974); Pogue v. Retail Credit Co., 453 F.2d 336, 338 (4 Cir. 1972), cert. denied, 409 U.S. 1109, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973); Wachovia Bank & Trust Co. v. United States, 288 F.2d 750, 757 (4 Cir. 1961); see also Krotkoff v. Goucher College, 585 F.2d 675 (4 Cir. 1978); Walker Mfg. Co. v. Dickerson, Inc., 560 F.2d 1184, 1188 (4 Cir. 1977). Consequently, it was appropriate for the district court in this case to consider the evidence presented without straining to find inferences supporting the plaintiffs’ position in every shred produced. III. On appeal plaintiffs have limited their allegations of discrimination to the issues of sabbatical leave, promotions and compensation. Plaintiffs failed to introduce any evidence that Professor Bright ever applied for sabbatical leave, much less suffered discrimination from its denial. Professor Kim applied for two sabbatical leaves during his tenure at Coppin State. He was granted such leave in 1966-67, and he was denied leave in 1976-77. He testified that he was entitled to the leave, but was unable to demonstrate that anyone else received leave that year, and if so, that the denial of leave to him was discriminatory. The college maintained at trial that it did not grant any sabbatical leaves in 1976-77 because it needed its full complement of staff during an accreditation review conducted that year. On appeal plaintiffs point to an exhibit introduced by defendants that indicates that Professor Leroy Fitzgerald, a black, received an “HEW fellowship” in 1977. The references to this fellowship in the exhibit are cursory; it is difficult to draw even an inference that Professor Fitzgerald was excused from his teaching responsibilities during 1976-77 as a result. Indeed, Professor Kim’s own testimony distinguished the various forms of leave available, including sabbatical leave, which entailed compensation by the college at one-half salary during the period, and a “study leave” “funded by the Title III program.” Although plaintiffs failed to develop this issue at trial, it is apparent that the Title III leave referred to by Professor Kim stems from Title III of the Higher Education Act of 1965, 20 U.S.C. § 1051 et seq. (1976), under which the former Department of Health, Education and Welfare (HEW) provided fellowships to faculty members at institutions like Coppin State for both teaching and research. 20 U.S.C. § 1054. We think this evidence amply supports a finding of no discrimination under Title VII of the Civil Rights Act of 1964 and a directed verdict on the §§ 1981 and 1983 claims. Plaintiffs simply failed to adduce sufficient evidence that discrimination played any role in the denial of Professor Kim’s sabbatical leave in 1976-77. Even assuming Professor Fitzgerald received leave in that year, the leave taken was not sabbatical leave, but rather leave fully funded by the federal government. In addition, it is by no means clear on this record that Professor Fitzgerald’s “HEW fellowship” interrupted his teaching duties, because the HEW program provides fellowships for teaching as well as research. In any event, Professor Fitzgerald’s leave could not represent improper discriminatory preference by the college for a black over an Asian because HEW, not the college, selected Professor Fitzgerald for the fellowship and paid for it. On the issue of promotions, Professor Kim had already received tenure prior to the period in question. Professor Bright, however, applied several times for promotion to full professor during the period but was denied promotion each time. He concedes that no one was promoted the first year he was eligible, 1974-75. In 1975-76, for some reason his application was not considered. It is therefore uncontroverted that President Burnett did not personally review his application that year, and for purposes of Title VII the record supports the district court’s finding that the failure to consider the application was not discriminatory. The record similarly supports the district court’s findings of no discrimination for the years 1976-77 and 1977-78, when Professor Bright’s application did receive consideration but was nonetheless disapproved prior to review by President Burnett. The only remaining question concerns Professor Bright’s application for promotion in 1978-79, which President Burnett did personally review. In that year, it is uncon-troverted that the college could promote only three individuals. President Burnett appointed Dr. Nancy Wilkey to one of the positions because of a need for a maternal care specialist in order to maintain the accreditation of Coppin State’s nursing school, a need plaintiffs do not contest. It is also uncontroverted that President Burnett selected the number one rated candidates from the Arts and Sciences and Education groups to fill the other two positions. Professor Edward Sommerfeldt was rated number one in Arts and Sciences over Professor Bright, who received the number two rating. Professor Sommerfeldt had more teaching experience than Professor Bright, a more extensive publication record, and was qualified in the fields of physics and computer science, fields in which plaintiffs do not contest the college’s need. Sommerfeldt, moreover, is white. A finding of no discrimination in the college’s preference for Sommerfeldt over Bright is manifestly correct. Plaintiffs nonetheless argue that Professor Bright should have been promoted instead of Professor Leroy Fitzgerald, despite the fact that Professor Fitzgerald was evaluated independently of Professor Bright in the Education group, which rated Fitzgerald number one. Professor Fitzgerald also had a more extensive publication record than Professor Bright, had served as Dean of Graduate Studies, a much more significant administrative position than any held by Bright, and most importantly, had demonstrated a singular talent for attracting federal, state and other grants to the college. We think there is no genuine issue of material fact that Professor Fitzgerald was at least as qualified if not more qualified than Professor Bright was for purposes of promotion to full professor. The district court found that the only evidence in the case was that Professor Fitzgerald was promoted over Professor Bright solely on the grounds of merit. We agree that the record points inescapably to this conclusion. Thus, the record fully supports the district court’s finding of no discrimination under Title VII in the college’s promotion policy, and its decision that no reasonable jury could find discrimination in violation of §§ 1981 and 1983. IV. Plaintiffs advance two major contentions with respect to the alleged discrimination practiced by the college in establishing their compensation. First, they assert that they were unjustifiably paid among the lowest salaries at the college, particularly in view of their credentials, since the time Professor Bright joined the faculty in 1969 and Kim became full professor in 1970. The district court ruled that the “continuing impact” of this alleged discrimination did not defeat the bar of the statute of limitations for college actions taken prior to 1974, citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Evans, however, held that a United flight attendant was not entitled to retroactive seniority for a past act of discrimination when she had departed United for an interval. This court, in contrast, has consistently distinguished Evans when the discriminatory employment practice has continuously affected the complaining employees and is continuing. E. g., Jenkins v. Home Ins. Co., 635 F.2d 310, 311-12 (4 Cir. 1980) (compensation); Patterson v. American Tobacco Co., 586 F.2d 300, 304-05 (4 Cir. 1978), after remand, 634 F.2d 744, 750-51 (4 Cir. 1980), cert. granted, - U.S. -, 101 S.Ct. 3078, 69 L.Ed.2d 951 (1981). Plaintiffs here have not conclusively proven continuing disparity in their salaries vis-a-vis the black faculty at the college, but they have produced sufficient evidence to raise a genuine issue for a jury’s ultimate determination under §§ 1981 and 1983 and for reconsideration of the issue by the district court under Title VII. The district court considered plaintiffs’ contention that they were singled out in the denial of an equalization pay increase granted to most Coppin State professors in 1974. Professors Kim and Bright each received their cost-of-living salary increase that year, but did not receive, along with one black professor, an additional increase of approximately equal size distributed out of surplus funds. The district court found that the college had demonstrated legitimate, nondiscriminatory reasons for denying the increase that were not mere pretexts. The court relied on evidence that suggested that plaintiffs had been uncooperative in the college’s efforts to secure a National Science Foundation grant, that they had participated in and perhaps encouraged a student boycott at the school and that they were generally uncooperative with the college administration. We think that a finding of no discrimination on this issue pursuant to Title VII was not clearly erroneous. As the trier of fact, the district court was entitled to conclude that plaintiffs’ general lack of cooperation with the college administration during this period impelled President Burnett to deny the equalization increases without the taint of discriminatory motive. Although the district court improperly considered evidence of Professor Kim’s administrative failings that actually occurred in 1977, and was thus irrelevant to the 1974 decision, the district court was entitled to credit defendants’ account of the dispute between Kim and Bright and the college administration over the preparation and administration of a proposed National Science Foundation grant in 1972-73. In addition, the district court was entitled to credit President Burnett’s opinion that plaintiffs had participated in the student boycott; this rationale for his action does not raise any issue of racial discrimination. This resolution of plaintiffs’ statutory claims pursuant to Title VII does not, however, necessarily apply to their constitutional claims under §§ 1981 and 1983. The district court conceded that the issue of the National Science Foundation grant was “hotly contested.” Plaintiffs’ basic contention was that the college administration assigned the preparation and administration of the grant to others for racial reasons. The jury was entitled to decide, so they argue, whether President Burnett was racially biased or whether plaintiffs improperly failed to cooperate with the administration on the grant, thus endangering it and justifying their replacement and the subsequent denial of the pay increase. This material fact still very much at issue, coupled with the improper consideration of evidence concerning events in 1977, suffices to render the directed verdict on this compensation issue improper. The denial of the pay increase, moreover, raises an additional constitutional claim in addition to" that of racial discrimination. President Burnett testified that he denied the pay increase in part because of plaintiffs’ participation in a student boycott that occurred at the college in 1974. If we assume that the expression involved was constitutionally protected by the first amendment, there can be no doubt that the expression was a “substantial or motivating factor” in Burnett’s adverse employment action, see Mt. Healthy City Board of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and it is likely that he would not have denied the increase “but for” the protected expression by plaintiffs, Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 417, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979). Plaintiffs would accordingly be entitled to relief for the college’s unconstitutional infringement of their rights to free expression through the punishment meted out under the doctrine enunciated by the Supreme Court in these cases. The district court, however, summarily dismissed the idea that Professors Kim and Bright engaged in constitutionally protected expression. It stated: “Needless to say, joining a picket line and participating in a boycott is highly disruptive to the educational process,” citing Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Such disruption justified President Burnett’s denial of the pay increase in its view, and apparently precluded consideration of their activity by the jury. We have not decided the issue of whether the expression of a public employee is constitutionally protected should be determined by the court or by the jury. See Cooper v. Johnson, 590 F.2d 559 (4 Cir. 1979). Other courts, however, have held that the ultimate question of whether expression is protected is for the court, recognizing, however, the substantial role of the jury in finding facts necessary to strike the balance mandated in Pickering. Van Ooteghem v. Gray, 628 F.2d 488 (5 Cir. 1980), reh’g granted, 640 F.2d 12 (5 Cir.), cert. dismissed, 451 U.S. 935, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981); accord, Schneider v. City of Atlanta, 628 F.2d 915 (5 Cir. 1980); see Tygrett v. Barry, 627 F.2d 1279, 1287 (D.C.Cir.1980); Hickman v. Valley Board of Educ., 619 F.2d 606, 609-10 (6 Cir. 1980). We think that the extent of protection afforded by the first amendment to expression is ultimately a question of law for the courts, but that the jury’s function is to find the underlying facts to which the legal standard is ultimately applied. This division of responsibility, in our view, stems from the reasoning of Pickering. In Pickering, the Court recognized both the substantial interest of government in regulating the conduct of its employees and the rights of public employees to comment on matters of public interest, rights guaranteed by the first amendment and not forfeited by the mere fact of their government employment. In consequence, it stated, “[t]he problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U.S. at 568, 88 S.Ct. at 1734-35. The Court recognized legitimate government interests in maintaining discipline by immediate superiors, harmony among coworkers, personal loyalty and confidence necessary to close working relationships and preventing disruption of government operations. Id. at 569-71, 88 S.Ct. at 1735-36. On the other hand, the Court recognized the strong interest of the employee and indeed the public in “having free and unhindered debate on matters of public importance.” Id. at 573, 88 S.Ct. at 1737. Moreover, in analyzing expression by teachers, the Court has frequently reiterated the country’s deep commitment to safeguarding academic freedom, “which is of transcendent value to us all and not merely to the teachers concerned.” Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967). As the Court stated in Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957): The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die. 354 U.S. at 250, 77 S.Ct. at 1211-12 (opinion of Warren, C.J.). Not only is academic freedom fundamental to freedom of expression under the first amendment, but freedom of expression is likewise fundamental to academic freedom. First amendment values should find their purest realization in our schools and universities. The creators of the American nation were profoundly influenced by Locke and the British empiricists, who propounded the philosophical principles of knowledge based on demonstration and measured reflection, not blind faith, a knowledge secured by probability, not certainty, and the essential check of doubt on all propositions. See, e. g., J. Locke, Essay Concerning Human Understanding (1690). Scepticism goads the mind to further inquiry, and through this relentless process western civilization has advanced. We celebrate Galileo, not only for his discoveries, but for his courage in the face of persecution for his intellectual beliefs. Such old religious shackles that imprisoned scholarship impelled many of the first settlers of this land to leave their homes for a new life of freedom here. It was in the nature of our disparate colonial development that the “free trade in ideas” began to flourish, culminating in the Revolution that would bind thirteen minor states with the common fiber of dedication to the principle of the sovereignty of each individual. We rely on our educational institutions to develop that individual sovereignty, and it can only be attained by encouraging the individual to think independently. Independent thinking, in turn, can only be developed through constant questioning, the expression of new, untried and heterodox beliefs and the willingness to tolerate experimentation — in sum, the traditions upon which the first amendment rests. It follows that our schools, particularly our universities, must serve as great bazaars of ideas where the heavy hand of regulation has little place. Like other bazaars, they may seem rude, cacophonous, even distasteful at times; but they are necessary predicates to the more orderly market of ideas in our public life. See Wieman v. Updegraff, 344 U.S. 183, 194, 73 S.Ct. 215, 220, 97 L.Ed. 216 (1952) (Frankfurter, J., concurring). It is against this background that the Supreme Court struck the balance in Pickering. The Court rejected the school board’s statements that the teacher’s expression was “detrimental to the efficient operation and administration of the schools of the district,” and was “disruptive of faculty discipline,” tending to foster “controversy, conflict and dissension” among faculty, school officials and citizens. 391 U.S. at 564, 567, 88 S.Ct. at 1732, 1734. The Court found the teacher’s expression protected by the first amendment, even if defamatory, because “a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.” Id. at 574-75, 88 S.Ct. at 1737-38. The Court thus designed its approach in order to protect freedom of expression vigorously, balanced by an objective consideration of the state’s interest in efficient public service. The approach protects the employee from the quite subjective ire of superiors over expression they do not approve of. It is fitting, therefore, for the jury to weigh the factors of disruption of operations, disharmony among coworkers or breach of a confidential working relationship enumerated by the Court in Pickering. These are matters of fact for which the jury is uniquely equipped to filter out self-serving claims and apply its judgment based on individual experience and an assessment of the credibility of the disputants. E. g., McGill v. Board of Educ. of Pekin Elem. School, 602 F.2d 774, 776-77 (7 Cir. 1979). On the other hand, the court must ultimately determine whether the first amendment protects the expression involved. See Brown v. Bullard Independent School Disk, 640 F.2d 651, 653 (5 Cir. 1981); Williams v. Board of Regents, 629 F.2d 993, 1002-04 (5 Cir. 1980), cert. denied, 452 U.S. 926, 101 S.Ct. 3063, 69 L.Ed.2d 428 (1981); Columbus Educ. Ass’n v. Columbus City School Disk, 623 F.2d 1155, 1159-60 (6 Cir. 1980). The courts are entrusted with this part of the Pickering balance not only because of the importance of legal questions in reaching the determination but because of the traditional role of the courts in safeguarding expression, however unpopular, from the antagonism of majority views. In applying the Pickering analysis to this case, we note at the outset that the activity engaged in by Professors Kim and Bright is within the ambit of the first amendment. Professor Bright spoke to students about their boycott and allegedly offered them counsel. It is nowhere alleged that he incited them to boycott or encouraged them to engage in disorderly conduct. It is likewise nowhere alleged that any criticism expressed was directed personally at coworkers or college administrators rather than at problems of the institution generally. Compare Bickel v. Burkhart, 632 F.2d 1251, 1256 — 58 (5 Cir. 1980) (institutional criticism) with Smalley v. Eatonville, 640 F.2d 765, 768 (5 Cir. 1981) (personal charges against mayor expressed by his finance director). It was alleged that Professor Kim simply joined a student picket line. The first amendment clearly protects picketing, subject to reasonable time, place and manner restrictions; the message of the expressive conduct involved, however, cannot be regulated. Police Dep’t v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Expressive conduct is protected on school grounds so long as it does not materially and substantially interfere with school activities. Tinker v. Des Moines Community School Disk, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Thus quiet and peaceful picketing on school grounds is generally protected by the first amendment, but noisy demonstrations may be prohibited. Grayned v. City of Rockford, 408 U.S. 104, 118-20, 92 S.Ct. 2294, 2304-05, 33 L.Ed.2d 222 (1972). The district court in this case assumed that the picketing was disruptive and thus not protected expression. The student boycott in its entirety was certainly disruptive of school activities. Under Pickering, however, the disruption of operations and disharmony in the workplace allegedly caused by the employee’s expression must be assessed by the jury. A substantial issue of material fact remains in this case as to whether the involvement of Professors Kim and Bright in the boycott actually resulted in disruption of school activities. An objective evaluation of the actual, harm caused, not perceived or potential harms, is required. Against whatever disruption the jury finds the court must balance the importance of the message Professors Kim and Bright sought to express. Pickering’s public criticisms of the school board no doubt caused some disruption, but the Court held that the public interest in his message and his interest under the first amendment were overriding concerns. As the Court of Appeals for the Fifth Circuit recently noted, “We do not read [Pickering-type cases] as establishing disruption and disharmony as a per se defense to dismissal no matter how egregious the complained of conduct of the superior might have been.” Williams v. Board of Regents, 629 F.2d at 1004. See Tygrett v. Barry, 627 F.2d at 1286-87; Columbus Educ. Ass’n v. Columbus City School Disk, 623 F.2d at 1159-60. We therefore think the directed verdict for defendants on this issue was inappropriate. Our conclusion is supported by the decisions in other circuits. The Court of Appeals for the Fifth Circuit reversed a district court’s judgment notwithstanding the verdict predicated on the material and substantial disruption of the university’s program caused by a professor’s criticism of the program expressed to state officials. The court of appeals held that no 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_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. CITIZENS FOR ALLEGAN COUNTY, INC., Petitioner, v. FEDERAL POWER COMMISSION, Respondent, City of Allegan, Michigan, Consumers Power Company, Intervenors. No. 21842. United States Court of Appeals District of Columbia Circuit. Argued Oct. 16, 1968. April 29, 1969. Mr. William I. Harkaway, Washington, D. C., for petitioner. Mr. David F. Stover, Atty., Federal Power Commission, with whom Messrs. Richard A. Solomon, General Counsel, Peter H. Schiff, Solicitor, and Drexel D. Journey, Asst. General Counsel, Federal Power Commission, were on the brief, for respondent. Mr. Howard E. Wahrenbrock, Washington, D. C., for intervenor, City of Al-legan, Michigan. Mr. George F. Bruder, with whom Messrs. Thomas M. Debevoise and Ernst Liebman, Washington, D. C., were on the brief, for intervenor, Consumers Power Company. Before Danaher, Wright and Leventhal, Circuit Judges. Circuit Judge Danaher became Senior Circuit Judge on January 23, 1969. LEVENTHAL, Circuit Judge: The central question on this appeal is) whether petitioner was denied the hearing to which it is legally entitled by the procedure followed by the Federal Power Commission (FPC) in issuance of orderi authorizing acquisition of the electric system of Allegan City Light Depart • ment and authorizing transfer of i. license of the Calkins Bridge Project, a dam and power house on the Kalamazoo!) River. Petitioner is a citizens group, the Citizens for Allegan County, Inc. (Citizens). Intervenors are the acquiring company, Consumers Power Company (Consumers) and the former owner of the facility and license, the City of Alle-gan, Michigan (City). Although we conclude that the orders should be affirmed, the questions are not free from difficulty, and our ruling is narrowly confined to the facts and circumstances before us, to which we now turn. Prior to 1968 the City owned and operated its electric system — consisting of generating facilities, a 2,550 kw hydroelectric plant at the Calkins Bridge Project and a 4,576 kw diesel plant, and the transmission and distribution facilities necessary to service 1,822 customers in the Allegan, Michigan, area. The City’s electric system was not interconnected with any other system, and generated its own energy requirements. Early in 1966, the City began seeking an interconnection with some other electric system from which it could purchase power. After receiving proposals from Consumers and from Wolverine Electric Cooperative, the City Council decided to consider an offer by Consumers to purchase the entire system from the City. The resulting agreement, dated December 5, 1966, for the sale of the City’s system to Consumers for $1,785,000, was submitted to a referendum election held January 18, 1967, which resulted in a vote — 798 in favor of the sale, and 438 against— that satisfied the 60% vote requirement of the City Charter. Applications were made to the FPC on June 9, 1967, a joint application by the City and Consumers for approval of the license transfer for the Calkins Bridge Project as required by § 8 of the Federal Power Act, and an application by Consumers for approval of the merger under § 203(a) of the Act. On July 12, Citizens filed a petition in opposition to the sale, seeking leave to intervene as a party, with the right to produce evidence, cross-examine witnesses and be heard on brief and oral argument. This petition to intervene was answered by Consumers and the City; it was amended; and the amendment was answered by the applicants. On January 29, 1968, the FPC issued an order granting Citizens intervention, and simultaneously issued orders approving the license transfer and the merger of facilities. Citizens filed a petition for rehearing which was denied, and then petitioned this court to review the orders of the FPC. I The Citizens group was entitled to intervene and to have a meaningful opportunity for hearing in order to oppose the applications of Consumers and the City. It gives us pause, then, to see that when the Commission granted intervention it simultaneously closed out the proceeding without any further presentation from the intervenor. This is indeed “disturbing” — the word used by Commissioner Ross in dissenting from this abbreviated procedure. The use of such a procedure puts a heavy burden on the agency to demonstrate that its procedure comported with fairness and requirements of law. However, the right of opportunity for hearing does not require a procedure that will be empty sound and show, signifying nothing. The precedents establish, for example, that no evidentiary hearing is required where there is no dispute on the facts and the agency proceeding involves only a question of law. An analogy is sometimes drawn from the court rules which provide summary judgment procedure for the cases that involve only legal issues and no bona fide disputed questions of fact, where it is quite clear what the truth is and there is really no issue to try. This analogy calls to mind, however, that even in court litigation there are limitations on use of summary procedure, limitations that may usefully delineate, and restrict, the appropriate use of abbreviated procedures by administrative agencies required to act after opportunity for hearing. For example summary procedures are held to have only limited scope in antitrust litigation. When that approach was first put forward, reference was made to the inappropriateness of summary procedures for an area of law “where motive^ and intent play leading roles?’ The same principle was also applied, however, to an area not turning on intent when the Court, faced with a novel legal issue, decided it was inappropriate “to reach a conclusion on the bare bones of the documentary evidence,” and determined to consider its disposition in the light of a trial developing more information as to the actual impact on competition of the arrangements under attack. White Motor Co. v. United States, 372 U.S. 253, 259, 263-264, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963). Similar considerations may be pertinent when an agency is considering approval of a merger or other issues of consolidation of control. These and other questions of public interest confronting an administrative agency will often be illuminated by an exploration in greater depth than can be provided simply by pleadings and documents. The burden of justification resting on the Commission is even heavier in a case like this where the agency not only failed to notice an evidentiary hearing, but disposed of the matter without even brief or argument from the petitioner. Yet in the particular case we affirm, not without some hesitancy, because the unique setting includes a political decision made by the City coupled with the weakness of the Citizens’ allegations. We conclude that the information" presented to the FPC in the applications, exhibits, affidavits, intervention petition and other pleadings, developed the salient facts of the dispute to a sufficient depth and detail that the Commission was enabled to perceive, define, and resolve the various strands of public interest. It is important that the Commission’s opinion addressed itself to each of the problems raised by petitioner and set forth its reasons for concluding that the public interest lay in approval of the merger. Eeviewing the Citizens’ assertions as well as the setting of the case, we cannot say the Commission abused its discretion either in its conclusions or its procedure, though we in no way endorse the latter. We also feel that the matter was clearly enough presented and apprehended, and that absent some additional allegations or showing no further procedure was required. II The applications of Consumers and Al-legan stated, inter alia, that the acquisition would make possible removal of duplicate distribution facilities; that it would end the hazardous isolated status of Allegan; and that Consumers would establish a service headquarters in Al-legan with 20 employees and a payroll of about $200,000 a year, the number of these employees to increase to about 40 in the future. The issues raised by Citizens were; (1) there were irregularities in the election approving the sale; (2) the acquisition would result in increased electric rates for Allegan residents; (3) the effect of Consumers’ accounting would result in increased costs; (4) the City of Allegan was overborne by Consumers Power on the deal; (5) Consumers Power earned a rate of return higher than authorized by the Michigan Public Service Commission; (6) the transfer of the hydroelectric project would harm the recreational use and water level of Lake Allegan; and (7) in both its petition to intervene and its petition for rehearing, Citizens asserted that alternative courses could be followed — there was no need to sell since ample power existed and an interconnection could be had through a purchase agreement as offered by Wolverine Electric; and if the system were sold, there should be a repurchase agreement covering the hyroelectric plant. A. Significance of City’s Election and Political Decision A unique feature of this case, significantly supporting the Commission’s course both on the merits and procedure, is the fact that the City, through its council and its citizens on referendum, has made a political determination to increase the extent and reliability of its electric system, to entrust that responsibility to Consumers, and to get the municipality out of the electric business. The FPC was aware that its role was not a mere “ministerial one” even though the City had made its choice. As it stated in denying rehearing: it is clear that we would be concerned if the proposed acquisition by a public utility would impair reliability of service or would inherently diminish the potentiality for increased service at the lowest reasonable rates, or was at so low a price as to indicate coercion by the buyer or at so high a price as to impair the financial status of the purchaser. * * * [W]e would also be concerned if there were indications that significant competition between the acquired system and the purchasing utility was being eliminated by the merger, without compensating public benefits which otherwise were not likely of achievement. Yet the Commission correctly pointed out that the over-all balance of public interest involves not only an economic balance but also a political determination of a city council and electorate which “includes other considerations which cannot be quantified, of political and economic philosophy, management capability, governmental priority, etc.” There is considerable overlap in the fields of vision of the FPC and the City. Both are concerned, for example, with the direction and extent to which the cost and rates of utility service may be changed as a result of the transfer. But there is also a difference in their focus on public interest determinations. The FPC is not interested alone in economic costs. It must consider other elements of the publieinterest, including specifically, here, the impact on the recreational use of the lake. The City has an even broader outlook. It may properly consider benefit to other public uses having no nexus whatever to the electrical system as such- — e. g., the possibility of devoting the proceeds to schools, or hospitals, etc. Cities as well as individuals may rightly decide that their over-all interests are served better by renting than buying, even though the benefits of having capital for other purposes are subject to an offset in the need to pay economic rent and profit (here a return regulated now by a state commission). In this vortex of factors affecting the public interest we think the Commission was entitled, in its determination of public interest, to accord significant weight to the determination made by the city council, and electorate, if carried out with fair procedures. The City’s determination was not made decisive, nor could it be. Thus the Commission must take into account the impact of the proposal on consumers who were not voters — here commercial customers. But lit is appropriate to accord more latitude for summary Commission procedures where a public interest determination has been made by a city, at least where, as here, the Commission has carefully analyzed the assertions of those intervening to upset that determination and has found in these allegations significant deficiencies and inadequacies. A greater duty of inquiry in depth may be applicable in a case where the Commission was the sole official guardian of the public interest. B. Review of Citizens’ Allegations and FPC’s Comments It is with this framework in mind that we take up, seriatim, the assertions of Citizens, and conclude that Citizens did not allege sufficient facts, or likelihood of discovery of facts, to require reversal of either the policy determination made by the FPC or its procedure. 1. Alleged Election Irregularities: If, of course, petitioners could undercut the validity of election (or the city council action it asserts was overborne, see paragraph 4 below) the special factor of this case would be destroyed. However, the kind of showing necessary to undermine a vote would hardly seem to be proffered by a claim that the ballot did not properly present the “proposition” as required by the City Charter because the price was not on the ballot. Compare Kohler v. Tugwell, 393 U.S. 531, 89 S.Ct. 879, 21 L.Ed.2d 755 (1969). The claim that Consumers charged election expenditures as operating expenses — an accounting entry easily reversible, if improper — would not invalidate the vote. Citizens also says the ads of Consumers were misleading in asserting protection of water level. The FPC set water level requirements in the license on the basis of independent studies, and future approval of the FPC is needed before Consumers Power can alter these license requirements. The FPC also said it was not authorized to pass on election irregularities. While the FPC may not make a binding adjudication on them, it does not mean that the FPC cannot take them into its consideration. However, there was no effort here to invoke the conventional state procedures available to challenge an election. And the asserted “irregularities” were limited in significance. We certainly are not persuaded that a hearing concerning the election was required. 2. The Balance of Economies: Petitioner’s second point is that the higher rates to be paid by the consumers and the loss of the profits the City had made operating the electric system will not be offset, as asserted by Consumers, by the taxes now to be collected on the facilities and interest from the 1.7 million dollars. Citizens assert the sale means an annual loss, but it reaches this conclusion by looking at the cash flow of the electric system, and failing to provide deductions for depreciation reserve and interest payments. The Commission’s decision did not find as fact that the sale would result in a net gain, it merely stated that Consumers had made that assertion. In denying rehearing the Commission, in its footnote 1, decried as unrealistic the accounting procedure used by Citizens. More importantly, it concluded Thus [because of the political determination made by the city council and voters] even if, after hearing * * * we were to determine that the financial gains to the City, as a municipal body, from selling the system were outweighed by the losses, we would not believe it appropriate to prevent the City from choosing to get out of the electric business. ****** In short, we conclude that the matters over which the petitioner would have us take cognizance and with respect to which it seeks an evidentiary hearing lie peculiarly within the area where Allegan and its citizenry is entitled to make its own determination. Furthermore, even assuming the validity of the factual allegations regarding the financial gains and losses to the City, those obligations do not present a basis for concluding that the proposed acquisition is contrary to the public interest. (Bracketed material added.) This is consistent with the position taken by the Commission in its original determination: The electorate of Allegan chose the somewhat higher rates of Consumers in return for what they apparently feel are adequate offsetting benefits. * * [while] we have independent responsibilities to determine the appropriateness of the acquisition and are not bound by the results of the special election by the City of Allegan. * * Looking at the losses alleged by the intervenor and the benefits to the City resulting through increased tax revenue, interest on investment of the purchase price [undisputed facts], enhanced electric system reliability, and considering the entire record before us, we find that on balance the transaction is consistent with the public interest. (Bracketed material added.) It is not within our province to consider whether we would have made the same determinations at the agency level. Our limited role as a court of review requires us to say that we discern no facts that are in dispute, or which have not been accepted as true, that required factual hearing. Nor can we say after, considering the political determination and factors of added reliability, that the Commission was in error in its policy determination regarding the public interest. 8. Accounting for the Acquisition Adjustment: Citizens objected that $400,000 of an acquisition adjustment of $472,181, the amount paid in excess of the depreciated original cost of the facilities, should not be an above-the-line account as Consumers Power proposed. The FPC required that the adjustment be charged to a below-the-line account. Citizens raises no further question on this aspect of the case. 4. The Contention that the City of Allegan Was Overborne by Consumers Power: As with the issue of election irregularities, the significance of the political determination made by the City would be effectively undercut by any showing of coercion or undue influence. However, the facts alleged by Citizens do not suffice for this purpose. Citizens originally claimed that coercion existed in that Consumers offered the City “no reasonable choice other than to sell,” and that Consumers did not offer to supply Allegan with electric energy on reasonable terms. The answering pleading attached as an exhibit a letter to the City Council from Consumers offering to sell power at the company’s standard wholesale power rate. Citizens then amended its petition suggesting coercion in Consumers’ refusal to furnish electric power at a “rate comparable to the offer of Wolverine Electric Cooperative.” We do not see in this even a glimmer of an indication that Consumers has overborn the free choice of the City. At most it is an allegation that the general tariff structure of Consumers means higher rates to the City than Wolverine would charge. 5. Consumers’ Alleged Excessive Return: Petitioners allege that Consumers Power is earning a rate of return higher than allowed by the Michigan Public Service Commission. The FPC, while not accepting this as a verity, stated that assuming arguendo its correctness, the electorate “at worst” chose to pay the higher rate for offsetting advantages, and that this fact did not alter the Commission’s finding that the merger was consistent with the public interest. Citizens asserted in its amended petition to intervene that the Michigan Public Service Commission had failed effectively to regulate electric utilities due to its “inadequate budget and inadequate staff.” While unfortunate, if true, the alleged failure would seem to be remediable elsewhere, and in any event it does not affect the crucial determination by the FPC. Moreover, it may be assumed, at least arguendo, that a collapse in state regulatory controls that is either documented or notorious would properly be taken into account by a federal agency in determining what is required in the public interest. Compare Atlantic Refining Co. v. Public Service Comm’n of State of New York, 360 U.S. 378, 388-394, 76 S.Ct. 1246, 3 L.Ed.2d 1312 (1959). But it cannot seriously be supposed that a federal agency is required to devote its staff and an evidentiary hearing to an analysis of the effectiveness of a state commission merely because some citizens recite, in terms that are general and eon-clusory, an objection to a city’s willingness to accept the same safeguards that the state law extends generally to consumers. 6. The Alleged Effect on Lake Al-legan: On this issue, as on point 3, it seems that the FPC has not ignored the pleas of Citizens, but has taken effective action in the circumstances. The FPC stated that both Citizens and Consumers were focusing on the wrong issue over whether on not Lake Allegan is presently suited for recreational use, for the important issue is “how can the development of the recreational potential of the Lake be best promoted and effectuated.” The FPC then conditioned its approval upon Consumers’ preparing a satisfactory recreational use plan. It said that petitioners need not fear improvident ultimate disposition of the project since the FPC must approve any future transfer of the license, and that under the Act and regulations, the FPC could proscribe the abandonment or sale of the licensed project without the Commission’s permission. Concerning the desire of Citizens for a re-purchase agreement, the Commission felt that this would give control over disposition of project property to a non-licensee which would be improper. The Commission also conditioned the § 203 approval upon the acceptance by Consumers of the new license which included amendments protecting the lake’s water level, plus conservation, recreational use and public access. 7. Alternative Courses: Citizens argues that the FPC cannot act merely as an arbitrator between two parties, but must discharge its own duty to inquire into the relevant facts concerning the public interest, including possible alternative courses. We agree that the FPC has an active and independent duty to guard the public interest, and that this may require consideration of alternative courses, other than those suggested by the applicant. This does not mean that the FPC must always undertake exhausting inquiries, probing for every possible alternative, if no viable alternatives have been suggested by the parties, or suggest themselves to the agency. We have noted that this case involves sale of an electric system by a city. A sale by a private party would have presented a situation devoid of a prior determination of public interest served by the sale, and would have called on the FPC to make more intensive inquiry before finding the sale consistent with the public interest. Here we have a legitimate political determination by the City of Allegan and its electors — the owners, and to a great extent the consumers of the electric power system. Their choice to stop operating the electric system limits the viable alternatives left open. Citizens did not suggest any possibilities that had not already been rejected by the City, other than a manifestly inadequate reference to a vague and “undisclosed industrial entity” that as-sertedly might have been adapted to safeguard the use of the lake. In this context we cannot say that the FPC stands condemned for failure to give adequate hearing because of the possibility of alternatives. Citizens’ brief on appeal contains, in addition to assertions on the balance of economies, alternatives, and misuse of the lake, various points made in rather summary fashion such as the lessening of competition, unclarity of whether and what duplicate facilities will be removed, and the fact that not all the electric consumers were voters. These points are extremely bare and sketchy and they probably fall within the ambit of our prior discussion upholding the FPC’s disposition. But if not, they cannot receive separate attention because they were not set forth in the petition for rehearing filed with the Commission, and hence, under section 313 of the Act, cannot be urged to this court. Ill We revert for amplification to a point that concerns us, that the agency not only failed to notice an evidentiary hearing, but failed to accord any other opportunity for presentation of views. An agency concerned with public interest would not be opening the door to significant delays or drain of resources if it were to provide opportunity to a petitioner to file a memorandum setting forth his position (and proffer) on the issues of fact and law he deems controlling. Light without heat may be obtained from an on-the-record conference procedure — partaking of the nature of a pre-hearing conference but without the notice of hearing — conducted by a member of the staff or possibly a hearing examiner. This would permit a meaningful exploration of possible public interest considerations without the rigidity and embroilment of an evidentiary hearing. We accept the procedure followed here of shutting off the petitioner without any further presentation because we think it manifest that the document denominated petition for intervention was also, in substance, a brief and written argument. It is possible, as petitioner correctly notes, that a petition for intervention may fall far short of the presentation on the merits, facts, law or both, contemplated by the petitioner for subsequent delivery. And an intervenor should not be prejudiced merely because his petition to intervene contained some argumentation relating to the merits in order to show seriousness of purpose. But here petitioner has given no indication of any argument or presentation omitted from consideration because of the procedure followed. No proffer has been made to the agency or this court either in the form of motion for leave to file additional evidence or otherwise. We are left with the over-all conviction that petitioner has put together a number of objections that have a theoretical predicate but are of no substantial moment in the particular case. IV We stepped over certain jurisdictional matters raised by intervenor at the threshold. We reject the claim that the appeal should be dismissed for lack of showing of aggrievement. Various decisions recognize the broad principles of standing applicable to consumers of a service under regulatory control. Care must be taken to avoid confusing the issue and dismissing a consumer’s claim on jurisdictional grounds when the real grounds of rejection go to the merits. If the Citizens-consumers had been right on the merits of their claims they would plainly have been aggrieved. As for intervenor’s claim that our recent decisions show lack of jurisdiction reaching back to the FPC threshold, this issue presents various difficulties, as indicated in the footnote. Since such difficulties may be curtailed or eliminated if the jurisdictional issue arises again, by focusing the issue and the record on the problem at' the outset, we think it appropriate to invoke the doctrine under which, in appropriate cases, a court' may bypass a jurisdictional issue without decision and dispose of the case by a ruling on the merits. Affirmed. . 16 U.S.C. § 801 (1964). . 16 U.S.C. § 824b (a) (1964). . Though captioned in only one docket the intervention obviously was directed to both applications. . Section 203(a) of the Act, 16 U.S.C. § 824b(a) (1964), provides that when the Commission is considering the grant of approval to a merger of electric facilities within its jurisdiction, the Commissioner must give notice to the state’s Governor, affected state commissions, and “to such other persons as it may deem advisable. i After notice and opportunity for hearing, i if the Commission finds that the proposed disposition, consolidation, acquisition, or control will be consistent with the public interest, it shall approve the same.” While there is no similar wording in the statute governing transfers of licenses, the Commission does not claim that the two dockets can be meaningfully separated for purposes of consideration of the public interest. . United States v. Storer Broadcasting Co., 351 U.S. 192, 202-205, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); Persian Gulf Outward Freight Conference v. FMC, 126 U.S.App.D.C. 159, 164-165, 375 F.2d 335, 340-341 (1967); Virginia Elec. & Power Co. v. FPC, 351 F.2d 408, 410 (4th Cir. 1965); Producers Livestock Marketing Ass’n v. United States, 241 F.2d 192, 196 (10th Cir. 1957), aff’d sub. nom. Denver Union Stockyard Co. v. Producers Livestock Marketing Ass’n, 356 U.S. 282, 78 S.Ct. 738, 2 L.Ed.2d 771 (1958). Cf. Pikes Peak Broadcasting Co. v. FCC, U.S.App.D.C., (Nos. 22023-24 March 24, 1969); Groendyke Transport Inc. v. Davis, 406 F.2d 1158 (5th Cir., decided January 2, 1969); American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624, cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1966). . See Rule 56 of the Federal Rules of Civil Procedure; Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944). . Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed. 2d 458 (1962); Levin v. Joint Comm’n on Accreditation of Hospitals, 122 U.S.App.D.C. 383, 386, 354 F.2d 515, 518 (1965). . Cf. Northern Natural Gas Co. v. FPC, 130 U.S.App.D.C. 220, 399 F.2d 953 (1968); City of Pittsburgh v. FPC, 99 U.S.App.D.C. 113, 237 F.2d 741 (1956). . Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965), cert. denied, Consolidated Edison Co. of N. Y. v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966). . Cf. Pittsburgh v. FPC, supra note 8. . Commissioner Ross, dissenting, felt a hearing should be had on the balance of economies, recreational benefits (discussed in paragraph 6 below), and on the terms and conditions of the § 203 decree. He was disturbed with the precedential tones of the case since intervention was permitted in the same order determining the merits. . Udall v. FPC, 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967); Northern Natural Gas Co. v. FPC, supra note 8; Pittsburgh v. FPC, supra note 8; Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 617-620 (2d Cir. 1965), cert. denied, Consolidated Edison Co. of N. Y. v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966). . Compare Joseph v. FCC, 131 U.S.App.D.C. 207, 404 F.2d 207 (1968); Office of Communication of the United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994 (1966); Bebchick v. Public Util. Comm’n, 109 U.S.App.D.C. 298, 287 F.2d 337 (1961): Pittsburgh v. FPC, supra note 8. . As for Utility Users League v. FPC, 394 F.2d 16 (7th Cir. 1968), cert. denied, 393 U.S. 953, 89 S.Ct. 377, 21 L.Ed.2d 365 (1968), cited by intervenors, we find the approach of the concurring opinion more persuasive than the majority. . Consumers raises the jurisdictional objection that under our ruling in Duke Power Co. v. FPC, 130 U.S.App.D.C. 389, 401 F.2d 930, its purchase of the City’s facilities was not subject to the Commission’s approval, since this was an acquisition of facilities utilized solely in the local distribution of electrical energy for retail sale. This objection was not raised before the Commission. A question arises whether it may be presented for the first time in this court, at least for the purpose of sustaining (not attacking) a Commission order. The brief of counsel for the Commission argues that the case is not moot since part of the facilities transferred were classed under the City’s license as “primary lines,” see § 3(11) of the Act, and with the function of transmitting energy generated at the project to the distribution system, and while the City operated in an isolated manner the acquisition by Consumers might result in a situation where these transmission lines were subject to use for interstate transmission of energy. In this aspect of the ease the jurisdictional issue may turn on factual matters that were not developed in the record as made, and hence would not be suitable for disposition on the papers as filed. It is also noted that the proceeding before the Commis ion involved its undisputed jurisdiction to approve transfer of the license of the hydroelectric project. The Commission might have granted permissive intervention (though denying relief) on a petition objecting solely to transfer of the license. Citizens may be entitled to use this ground to support the intervention as granted. If so at least some of the issues on the merits would be before us anyhow. Under the 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_dueproc	B	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 interpretation of the requirements of due process by the court favor the appellant?" 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". SANDERS ASSOCIATES, INC., Plaintiff, Appellant, v. The GALION IRON WORKS & MANUFACTURING COMPANY, Defendant, Appellee. No. 5980. United States Court of Appeals First Circuit. July 18, 1962. Robert B. Hamblett, Nashua, N. H., with whom Hamblett, Kerrigan & Hamb-lett. Nashua, N. H., was on brief, for appellant. Samuel H. Porter, Columbus, Ohio, with whom Lawrence D. Stanley, Columbus, Ohio, Irving H. Soden, Concord, N. H., Porter, Stanley, Treffinger & Platt, Columbus, Ohio, and Sulloway, Hollis, Godfrey & Soden, Concord, N. H., were on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. HARTIGAN, Circuit Judge. This is an appeal from an order of the United States District Court for the District of New Hampshire dismissing for lack of jurisdiction plaintiff's action for breach of contract against the defendant foreign corporation on the ground that defendant’s activities in New Hampshire did not establish a sufficient nexus with that state to render it amenable to suit by plaintiff. This proceeding involves three principal parties. Plaintiff-appellant, Sanders Associates, Inc., (hereinafter called “Sanders”) is a Delaware corporation with its principal place of business in Nashua, New Hampshire. Plaintiff is engaged in the invention, design and manufacture of electronic and hydraulic devices for a wide variety of uses. Defendant-appellee, the Gabon Iron Works & Manufacturing Company (hereinafter called “Gabon”), is an Ohio corporation with its principal place of business in Gabon, Ohio. Defendant is engaged in the manufacturing and sale of motor graders and road rollers. R. G. Hazelton Company, Inc. (hereinafter called “Hazelton”) is the exclusive distributor for Gabon in New Hampshire. Its activities on behalf of Gabon are governed by an extensive working agreement, some of the details of which will be discussed below. Plaintiff’s action for breach of contract stemmed from the following events. Following two preliminary conferences held at Nashua, New Hampshire, on May 9, 1957 and June 12, 1957 an agreement was executed on July 22, 1957 under the terms of which Gabon placed an order with Sanders for development of a grader attachment (attachable to the regular Gabon grader) by which the slope of the grader blade would adjust automatically to compensate for variations in the terrain under construction. Gabon wanted a control system that would automatically sense true vertical and control the grader blade to maintain a preset level or grade, even over irregular terrain. Such an attachment would simplify the operator’s job and give a more accurate finish. On November 26, 1967 a second agreement denominated as “supplemental” was executed. Under the terms of this instrument Sanders agreed to construct two “preproduction” models which were to be field tested by Galion to insure that they conformed with the specifications which Sanders had prepared. Upon the completion of five hundred hours of satisfactory testing by Galion, Sanders was to receive payment. The research and developmental nature of this project required extensive liaison between Galion and Sanders. In the words of the district court: “The nature of the agreement was such as to require frequent consultation between the parties and such consultation was largely carried out in New Hampshire. The majority of the meetings were engineering conferences generally between Gabon’s project engineer and employees of Sanders at Nashua. At other times, several officials of Galion came into the state to confer and witness demonstrations of the device, mounted on a Galion grader. It appears that such a grader was located in New Hampshire from August, 1957, until June, 1958.” 203 F.Supp. 522 at 524. Gabon’s contacts with Sanders in New Hampshire stemmed from the foregoing implementation of this agreement and, as noted, the instant action arose from an alleged breach of the contract. Gabon’s other contacts with the State of New Hampshire arose from its dealings with Hazelton. Hazelton is one of the largest distributors of heavy construction equipment in New Hampshire, marketing the products and machinery of approximately fifteen manufacturers. In 1955 Hazelton became Gabon’s exclusive New Hampshire distributor and has continued in that capacity down through the date of the present action. During this period, 1955-1961, Hazel-ton sold about $500,000 worth of Gabon’s products in New Hampshire and supplied an estimated 20 to 25 per cent of the New Hampshire grader market and about 25 per cent of the New Hampshire roller market. All of Gabon’s products reaching New Hampshire were sold to Hazelton, f. o. b. Galion, Ohio. The terms of the exclusive distributorship agreement signed by Hazelton provided, inter alia, as follows: Hazelton was granted the exclusive right to market Gabon’s equipment in New Hampshire territory subject to two important exceptions. Galion reserved the right to sell its equipment directly to the United States and State Highways Departments. The agreement also contained an express reservation to other distributors of the right to sell to companies having a place of business in another distributor’s territory, notwithstanding “the fact that the equipment is to be delivered into and initially used in” Hazelton’s territory. Hazelton was prohibited from soliciting outside the State of New Hampshire or from accepting orders from outside its territory without the other distributor’s consent and the consent of Gabon. There was a similar proscription on all export orders. Finally, under the terms of the agreement, Hazelton could not engage directly or indirectly in the marketing and sale or procurement of sales of any new motor graders or road rollers other than those made by Gabon. As found by the district court, Hazelton could handle no other new equipment “that competed with Galion products.” 203 F.Supp. 522 at 524. Galion furnished Hazelton a list of prices and available discounts. Under the agreement Hazelton consented to the insertion of prices in orders received by Gabon and agreed that Hazelton would be bound “thereby as if such details, prices, etc. had been contained in the order at the time he signed it.” Under paragraph 6 of the agreement Hazelton agreed to keep on hand not less than three graders and two rollers as well as a complete supply of replacement parts; to use “its best efforts in the promotion and sale in its territory and diligently canvass and regularly circularize with literature supplied by [Gabon], the town, city, county and contractor trade in such territory;” to provide adequate sales, storage and service facilities; to maintain in good condition, in conspicuous and appropriate location inside and outside of its place of business, signs identifying Hazelton as a distributor of Gabon’s equipment; to engage, train and maintain sales, service, parts, handling and accountant personnel sufficient to obtain a reasonable share of the sales possibilities for motor graders and road rollers in the territory; to promptly and efficiently service the equipment in its territory and to maintain proper and adequate accounting records; and to comply with Gabon’s policies in effect from time to time concerning delivery service and on service after delivery on the equipment embraced by the agreement. Under paragraph 7 of the agreement Hazelton was obliged to “assume complete responsibility for the proper inspection and assembly of the equipment and deliver the same to its vendee in good operating condition; train the operators and mechanics of its vendee to operate, lubricate and maintain such equipment correctly; inspect the equipment free of charge thirty (30) days (as nearly as practicable) after delivery to its vendee; again inspect the equipment free of charge five (5) months (as nearly as practicable) after delivery to its vendee; and furnish to the Company a delivery report, 30-day inspection report and 5-month inspection report on forms furnished by the Company, signed by the Distributor and an authorized representative of its vendee. * * * ” Gabon gave a six months warranty against defective material or workmanship and, as found by the district court, “Hazelton serviced any complaints and apparently bore the labor costs involved.” 203 F.Supp. 522 at 524. Hazelton was required to furnish Galion a monthly sales report indicting sales for the preceding thirty days, inventory, unfilled orders, and projections of future sales. Hazelton contributed to advertising programs of Gabon appearing in trade journals circulated in New Hampshire. Upon the termination of the agreement and under specified conditions, Galion agreed to repurchase from Hazelton all new, current, unused and salable service parts. There was continuing assistance and personal contact between Galion and Hazelton. Galion furnished training services for Hazelton’s salesmen and made available to Hazelton a Gabon airplane by which prospective New Hampshire customers could be flown to Galion's plant in Ohio. One David Gillespie, Galion’s “district representative,” was in periodic personal contact in New Hampshire with Hazel-ton and, as noted, monitored its monthly sales performance. His function was to insure that “Gabon has its share of the New Hampshire market,” and his liaison with Hazelton was aimed at fostering this objective. On these facts the issue is raised whether the Gabon corporation could be subjected to suit in the State of New Hampshire and accordingly, in a United States district court where, as here, there exists diversity of citizenship. As the trial judge correctly noted, in this class of case two questions must be anwered. In Pulson v. American Rolling Mill Co., 170 F.2d 193, 194 (1 Cir.1948), this court indicated the scope of that dual inquiry thusly: “There are two parts to the question whether a foreign corporation can be held subject to a suit within a state. The first is a question of state law; has the state provided for bringing the foreign corporation into its courts under the circumstances of the case presented ? There is nothing to compel a state to exercise jurisdiction over a foreign corporation unless it chooses to do so, and the extent to which it so chooses is a matter for the law of the state as made by its legislature. If the state has purported to exercise jurisdiction over the foreign corporation, then the question may arise whether such attempt violates the due process clause or the interstate commerce clause of the federal constitution. Const, art. 1, § 8, cl. 3; Amend. 14. This is a federal question and, of course, the state authorities are not controlling. But it is a question which is not reached for decision until it is found that the State statute is broad enough to assert jurisdiction over the defendant in a particular situation.” We had occasion to consider the pertinent New Hampshire statute and the relevant state cases in W. H. Elliott & Sons Co. v. Nuodex Products Co., 243 F.2d 116 (1 Cir.1957), cert. den., 355 U.S. 823, 78 S.Ct. 30, 2 L.Ed.2d 38, and there concluded that New Hampshire placed no constrictions on its in 'personam, jurisdiction vis a vis foreign corporations. On the contrary, now Chief Judge Woodbury, concurring, specifically pointed out that it was the objective of the local statute to exercise jurisdiction to the full extent of the constitutional limit. We adhere to that view. Thus, unfettered by local statutory inhibitions, the question then arises as to whether—consistent with the due process clause of the Fourteenth Amendment—Galion may be subjected to New Hampshire in personam jurisdiction by Sanders. The trial court held that Gabon could not. For reasons developed below, we disagree with that conclusion. The district judge, in resolving the present issue, sought to compartmentalize the activities of Gabon vis a vis Hazel-ton and vis a vis Sanders. Thus he stated: “In considering that question, I suggest that two independent areas of activity which relate to the defendant must be examined; those which concern the distributor Hazel-ton and those which concern the plaintiff Sanders. It has been urged by the plaintiff that the court consider both these activities as an integral whole, but this view does not accord with fact or logic. The activities of Gabon in relation to Sanders were clearly collateral to the mainstream of its business and should be so dealt with which I will now proceed to do.” 203 F.Supp. 525-526. Thereafter after analyzing the dealings between Sanders and Gabon (arising from the developmental agreement), the court concluded that these activities did not of themselves rise to a level sufficient to render Galion amenable to service of process in New Hampshire. The court then turned to the relationship obtaining between Hazelton and Galion. Here the district court concluded that while the scope of Gabon’s activities might validly permit a suit by Hazelton, again the activities were not such as would permit Gabon to be sued by a third party (Sanders) on a matter collateral to the “mainstream” of intercourse between Gabon and Hazelton. In the language of the trial judge: “ * * * It might be one thing to say that Gabon should be subject to suit at the instance of Hazelton, but it is quite another to say that it may be called upon to answer to this plaintiff in regard to collateral matters. Were this a suit by Hazel-ton or one of its customers, it might be persuasively argued that the state would have an interest in protecting local purchasers and that Gabon might be reasonably expected to have anticipated that it would be subjected to the jurisdiction of the courts of the state for the purpose of answering complaints by such persons. However, I do not believe that it would comport with ‘traditional notions of fair play and substantial justice’ to hold that Gabon, as a result of its dealings with Hazel-ton, should have foreseen that it was exposing itself to the institution of litigation in respect to matters unconnected with those dealings.” Id., at 526-527. We may pretermit considerations as to the correctness of the district court’s in vacuo approach to Gabon’s activities relative to Sanders and Hazelton as well as the potential jurisdictional ramifications stemming exclusively from the Sanders-Galion relationship. For it is our belief that Gabon so injected and impressed itself upon the State of New Hampshire through its distributor Hazel-ton as to render it liable to suit on any and all claims otherwise properly brought in the New Hampshire courts; whether or not these suits be “unconnected” with the central course of conduct involving Gabon and Hazelton. Any resolution of an issue of this kind starts with International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 164, 90 L.Ed. 95 (1946). That case, in assaying the question of state court jurisdiction over foreign corporations eschewed the “consent” and “presence” theories of jurisdiction formerly in vogue in favor of a new standard. Under that standard, courts were to inquire as to whether the foreign corporation had such “minimum contacts” with the forum that the maintenance of the action would not offend “traditional notions of fair play and substantial justice.” The Court said that the question of whether due process is satisfied turns on the “ * * * quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure” Id., at 319, 66 S.Ct. at 159. In short, jurisdiction is to turn on a qualitative analysis of the nature and kind of a defendant’s local activities. It is our belief that a qualitative analysis of Gabon’s activities in New Hampshire compels the conclusion that it had established “sufficient contacts or ties” with that state “to make it reasonable and just, according to our traditional conception of fair play and substantial justice, to permit the state to enforce the obligations which appellant has incurred there.” Id., at 320, 66 S.Ct. 160. While it has been held that the mere sale of goods to a local distributor will not in itself provide a basis of jurisdiction over a foreign corporation, Schmidt v. Esquire, Inc., 210 F.2d 908 (7 Cir. 1954); Favell-Utley Realty Co. v. Harbor Plywood Corp., 94 F.Supp. 96 (N.D.Cal.1950), the degree of control which Gabon maintained over Hazelton removes their relationship from that line of cases. Although Hazelton technically acquired complete title to a piece of Gabon equipment in Ohio, f. o. b., it was anything but free in regard to what it might thereafter do with that equipment. It was neither the complete captain of its marketing fate in the initial sale of the goods or for a considerable time thereafter. Under the terms of its distributorship agreement Hazelton could not sell this equipment to a federal highway department without the express approval of Gabon. It could not sell to a state highway department without the express approval of Gabon. It could not sell outside its territory. It could not export the equipment. It could not sell other new equipment performing functions similar to Gabon’s. All of these provisions (together with the corollary provision that other distributors might not otherwise sell or solicit in Hazelton’s territory) demonstrate the very meaningful and effective control which Gabon exercised over the New Hampshire market in general and over Hazelton in particular, a leverage which would scarcely seem to comport with the surface appearance of “an independent distributor." Moreover, Gabon reserved the right to establish prices and discounts and Hazel-ton agreed to be bound “thereby as if such * * * prices had been contained in the order at the time [it was signed].” Gabon dictated the size of Hazelton’s inventory and the extent of its replacement parts supply. It molded Hazel-ton’s advertising policies and promotional policy and dictated the use of Gabon signs on “conspicuous and appropriate” places on the Hazelton outlet. It required Hazelton to hire men skillful in sales, service, and parts, handling of its equipment. After Hazelton sold a piece of equipment its obligations flowing from the Galion distributorship agreement were not over. Hazelton had to promptly and efficiently service the Galion equipment in its territories. Hazelton was obliged under the agreement to train the mechanics and operators of the customers to which it sold a particular piece of equipment. It was required to inspect the. customer’s equipment free of charge on both the first and fifth month after the date of sale and to furnish Galion with reports covering both inspections. In addition, Hazelton was required to submit estimates of future sales, records of sales and inventory reports. Galion gives a six months warranty against defective parts or workmanship. Hazelton understood this to be a warranty by Galion to Hazelton’s vendee. Significantly as the court found, “Hazel-ton serviced any complaints and apparently bore the labor costs involved.” Finally, there is the pattern of continuing assistance between Galion and Hazelton manifested by such items as the ready availability of the Galion airplane to fly customers to the Galion plant in Ohio. In sum, we believe that a consideration of all the foregoing factors compels the conclusion that the manifested activities of Galion— albeit accomplished through the “independent” distributor Hazelton—makes it eminently reasonable that Galion here should be subject to service of process within the State of New Hampshire. Surely there would be no serious question if Galion had established its own branch outlet in New Hampshire and staffed it with its own personnel, whose work was to perform functions coextensive with those now handled by Hazel-ton, that it would be “doing business” within the state sufficient to satisfy the minimum constitutional requirements of jurisdiction. However, in the instant case, Galion through control of the retail price, requirements as to the maintenance of a sales force, proscription against selling the comparable products of competitors, specifications as to the maintenance of a service department and display area, insured a diligence in the marketing of Gabon’s products which compels the conclusion that, when all was said and done, Galion had actually obtained all the economic benefits that could have been derived from establishing its own distribution outlet in New Hampshire and derived this economic benefit without incurring the burden of capital outlay to establish its own distribution force. We believe that the degree of control and leverage which it exercised over Hazelton negates any due process objection on the face of this record. In this connection the language of the Fourth Circuit in Kahn v. Maico Company, 216 F.2d 233 (1954), is particularly appropriate. The question in that case was whether a foreign corporation was “doing business” within the meaning of the local Maryland statute so as to render it amenable to service of process. Although that case involved a suit by a Maryland partnership against the nonresident corporation for breach of its franchise contract with defendant (and thus was an action “connected” with the business of the defendant), we believe that its rationale is equally applicable here. “ * * * Upon the evidence taken as a whole, however, it is impossible to escape the conclusion that through the plaintiffs, defendant was advertising and selling its hearing aids in the State of Maryland, that the business was in effect done in defendant’s name and that it was as completely controlled by defendant as it would have been if plaintiffs had been mere selling agents. Furthermore, there can be no doubt but that defendant actually participated in the sales made by plaintiffs, since the guaranty given in connection with the sale of a hearing aid was a part of the sale, and in making the guaranty the plaintiffs were unquestionably acting as agents of defendant. They were also acting as agents of defendant in adjusting complaints made under the guarantees. “On these facts, we think that defendant was clearly doing business in the state within the meaning of the statute. In La Porte Heinekamp Motor Co. v. Ford Motor Co., D.C., 24 F.2d 861, and the very recent case of Thomas v. Hudson Sales Corp., [204] Md. [460,] 106 A.2d 225, 228, in both of which jurisdiction was sustained, it was pointed out that, while it did not constitute doing business within the state for a foreign corporation to make sales outside the state to distributors who carried on business therein, even though a district superintendent might visit them and advise with respect to selling policies, nevertheless such foreign corporation would be held to be doing business within the state if it went beyond this pattern and exercised substantial control over the business of the local distributor. Here the defendant not only controlled the business policies of the distributor, but also regulated the details of the business almost as completely as if the distributor had been an agent in all repects. No one would contend that what was done did not constitute doing business by defendant if plaintiffs had been compensated on a commission basis instead of by discounts allowed from the sale price which defendant fixed; but the method of compensating the one who carries on the business cannot defeat jurisdiction when it appears that it was in reality defendant’s business that was being carried on. "The case is not one where sporadic or occasional transactions are relied on to establish the doing of business within the state; but one in which it is shown that business of defendant was regularly carried on. * * " Id., at 235. Moreover, the Supreme Judicial Court of Massachusetts has consistently held that where the agents of a foreign corporation set about investigating and servicing complaints arising from the sale of goods of the foreign corporation that such activity will be sufficient to bring the corporation within the local “doing business statute.” These cases have arisen both in the context of claims “connected” and “unconnected” with the mainstream of defendant’s business in the state. In Wyshak v. Anaconda Copper Mining Co., 328 Mass. 219, 103 N.E.2d 230 (1952), the court stated: “ * * The investigation of complaints is an important factor in the completion "of business transactions, an indispensable aid to performance and a conservor of good will. Investigation and correspondence as to complaints partake of activity outside the simple solicitation of business. * * ” Id., 103 N.E.2d at 232. This result was followed in Jet Mfg. Co. v. Sanford Ink Co., 330 Mass. 173, 112 N.E.2d 252 (1953), where the Massachusetts court stated: “ * * Here again there was more than mere solicitation. There was the investigation of complaints by a permanent representative resident in the Commonwealth, who was empowered to do whatever was incidental to selling and fostering good relations with the trade. We are unable to see where the functions of this representative were substantially different from the handling of complaints and the ‘promotional work’ which were present in the Wy-shak case. That it is not necessary to maintain an office in order to become subject to the jurisdiction of this Commonwealth is manifest from the language of § 38.” Id., 112 N.E.2d at 254. In the instant case the district court found that Hazelton serviced any complaints stemming from the sale of the Galion equipment. While, as the trial judge noted, Hazelton apparently bore the cost of this activity, the activity was undoubtedly calculated to inure to Galion’s benefit and undertaken at its direction. Upon a consideration of the record as a whole, we believe that Galion was “doing business” within the State of New Hampshire and that its contacts with the forum were of sufficient sweep and scope to make it eminently reasonable that it be amenable to suit in that jurisdiction both as to claims related and unrelated to the “mainstream” of its commercial intercourse within the state. Judgment will be entered vacating the judgment of the district court and remanding the action to that court for further proceedings not inconsistent herewith. Question: Did the interpretation of the requirements of due process by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed 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. MASSACHUSETTS ASSOCIATION OF OLDER AMERICANS, et al., Plaintiffs, Appellants, v. Alexander SHARP, II, etc., Defendant, Appellee. No. 82-1592. United States Court of Appeals, First Circuit. Argued Jan. 7, 1983. Decided Feb. 15, 1983. Suzanne Harris, Cambridge, Mass., with whom Steven A. Hitov, New Rochelle, N.Y., was on brief, for plaintiffá, appellants. Thomas Noonan, Deputy Gen. Counsel, Hyde Park, Mass., Dept, of Public Welfare, with whom Francis X. Bellotti, Atty. Gen., and E. Michael Sloman, Asst. Atty. Gen., Boston, Mass., Government Bureau, were on brief, for defendant, appellee. Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges. BOWNES, Circuit Judge. Plaintiffs-appellants are a subclass consisting of approximately 4,400 families with stepchildren whose Medicaid and Aid to Families with Dependent Children (AFDC) has been terminated as a result of the stepparent liability provision recently added to the AFDC program. 42 U.S.C. § 602(a)(31) (as amended). Defendant-appellee is the Commissioner of the Department of Public Welfare of the Commonwealth of Massachusetts. Plaintiffs appeal from the district court’s denial of their motion for a preliminary injunction to prevent the termination of Medicaid. See 28 U.S.C. § 1292. We reverse. The Medicaid program was established in 1965 as Title XIX of the Social Security Act to provide federal financial assistance to states choosing to reimburse needy persons for certain medical treatment costs. Act of July 30, 1965, Pub.L. No. 89-97, tit. I, § 121(a), 79 Stat. 343; see Schweiker v. Hogan,-U.S. --,-, 102 S.Ct. 2597, 2600, 73 L.Ed.2d 227 (1982). States are not required to participate in the program, but if they do, they must comply with all requirements imposed both by the Act itself and by regulations promulgated by the Secretary of the Department of Health and Human Services. See 42 U.S.C. § 1396; Schweiker v. Gray Panthers, 453 U.S. 34, 37, 101 S.Ct. 2633, 2636, 69 L.Ed.2d 460 (1981). A participating state must submit a plan for medical assistance that conforms to the requirements of 42 U.S.C. § 1396a. Massachusetts has chosen to participate in the Medicaid program. See Mass.Gen.Laws Ann. ch. 118E (West Supp. 1982). A participating state is required to provide assistance to the “categorically needy” and may provide assistance to the “medically needy.” 42 U.S.C. § 1396a(a)(10); 42 C.F.R. §§ 435.100-.340 (1981). The categorically needy are those persons receiving federal aid through other federal cash assistance programs such as AFDC and Supplemental Security Income (SSI). 42 U.S.C. § 1396a(a)(10)(A). Also included in the categorically needy are those individuals who are excluded from AFDC because of an eligibility requirement that does not apply to the Medicaid program. The medically needy are persons who are unable to pay for medical expenses, but whose income is too large to qualify for aid under other federal financial assistance programs. See Schweiker v. Gray Panthers, 453 U.S. at 37, 101 S.Ct. at 2636. The Act mandates that assistance provided to the categorically needy “shall not be less in amount, duration, or scope than the medical assistance made available to [the medically needy] .... ” 42 U.S.C. § 1396a(a)(10)(B)(ii). Congress imposed this preference for the categorically needy to ensure that those .most in need of assistance would receive it first and in amounts not less than that received by other individuals. Schweiker v. Hogan, - U.S. at - & n. 6, 102 S.Ct. at 2601 & n. 6. Plaintiffs, as recipients of AFDC, were all eligible for and received Medicaid pursuant to the mandatory coverage of the categorically needy. The federal regulations governing Medicaid guarantee automatic enrollment in Medicaid upon qualification for AFDC and prohibit a state from requiring an additional Medicaid application from an individual receiving AFDC. 42 C.F.R. § 435.909(a) (1981). Plaintiffs, thus, have never filed a separate application for Medicaid. In 1981 Congress, as part of the Omnibus Budget Reconciliation Act, P.L. No. 97-35, 95 Stat. 843, amended the AFDC Act to require that states include income of stepparents in determining a stepchild’s eligibility for AFDC. See 42 U.S.C. § 602(a)(31) (as amended). Prior to this amendment a stepparent’s income was not considered in the AFDC eligibility determination. The Medicaid Act specifically excludes stepparent’s income from eligibility determinations. 42 U.S.C. § 1396a(a)(17)(D). Acting pursuant to this new AFDC provision, defendant in March 1982 began notifying plaintiffs, AFDC families containing stepchildren, that their AFDC benefits were being terminated. These notices also advised the families that their Medicaid benefits were ending. After many families were terminated, plaintiffs brought this action seeking to have their Medicaid benefits restored and to prevent further terminations. Plaintiffs claim that the terminations were illegal because defendant failed to comply with federal regulations requiring the state welfare agency to redetermine eligibility on other grounds before termination. See 42 C.F.R. § 435.916(e) (1981). They admit that they are no longer automatically eligible for Medicaid as AFDC recipients. Nonetheless, they claim that most of them are still covered as categorically needy because stepparent income is an AFDC eligibility requirement specifically excluded from consideration in Medicaid eligibility. Defendant responds that the regulations requiring a redetermination prior to termination do not apply to plaintiffs because they never independently qualified for Medicaid. Rather, defendant contends, the re-determination provisions cover only Medicaid recipients who applied for Medicaid directly and are not receiving it as a function of their eligibility for some other federal assistance program. Defendant argues that the proper course for plaintiffs is to make a new application for Medicaid. The district court denied plaintiffs’ motion for a preliminary injunction. The court’s denial was based on its belief that any harm suffered by the plaintiffs could be avoided in the main by application for Medicaid benefits. The court conditioned its denial on defendant’s sending notices to all plaintiffs informing them of the reasons for their termination from AFDC and Medicaid and advising them that they could still apply for Medicaid benefits. In determining whether to grant a preliminary injunction the court must consider four criteria: “(1) [whether] plaintiff will suffer irreparable injury if the injunction is not granted; (2) [whether] such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) [whether] plaintiff has exhibited a likelihood of success on the merits; and (4) [whether] the public interest will not be adversely affected by the granting of the injunction.” Auburn News Co., Inc. v. Providence Journal Co., 659 F.2d 273, 277 (1st Cir.1981) (quoting Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981)), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). While each of these factors must be considered, “the probability-of-success component has loomed large in cases before this court.” Auburn News Co., Inc. v. Providence Journal Co., 659 F.2d at 277. At the appellate level our review is limited. The decision to grant or deny a preliminary injunction is generally left to the discretion of the district court, and we will reverse only if the district court abused its discretion or if the denial was based on a clear error of law. See Massachusetts Association for Retarded Citizens, Inc. v. King, 668 F.2d 602, 607 (1st Cir.1981); Massachusetts Coalition of Citizens with Disabilities v. Civil Defense Agency, 649 F.2d 71, 74 (1st Cir.1981); Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d at 1009. We think that the district court committed a clear error of law by failing to examine all of the criteria relevant to a determination of whether a preliminary injunction should issue. In particular, the district court failed to examine the legal arguments raised by the parties. In so doing, it failed to make the required appraisal of the plaintiffs’ likelihood of success on the merits. We think that an examination of the merits so clearly indicates that the plaintiffs will prevail that an injunction should issue on their behalf. We briefly reiterate the legal claims raised by the parties. Plaintiffs contend that the federal regulations governing the Medicaid program require the defendant to redetermine their eligibility prior to terminating their Medicaid benefits. That is, although they are no longer automatically eligible for Medicaid as recipients of AFDC, the defendant, before terminating their benefits, must reexamine the relevant eligibility criteria and determine whether they qualify for Medicaid under some other eligibility category. In support of their argument plaintiffs rely primarily on two regulations. Both regulations appear in a single subpart: “Eligibility in the States and the District of Columbia.” The first of these, 42 C.F.R. § 435.916 (1981), comes under the heading “Redeterminations of Medicaid Eligibility.” Section 435.916 requires that the state agency responsible for administering the Medicaid program must promptly redetermine eligibility when it receives information about changes in a recipient’s circumstances that may affect his or her eligibility. 42 C.F.R. § 435.916(c)(1) (1981). The second regulation is found in the section entitled “Furnishing Medicaid.” This regulation requires the state agency to continue to furnish Medicaid to all eligible individuals until they are found to be ineligible. Plaintiffs argue that, taken together, these regulations require the state agency, once it receives possibly disqualifying information, to continue to furnish benefits until it determines that a recipient is ineligible under any possible method of qualifying for benefits. Defendant disputes this interpretation of the regulations. He argues that section 435.916(c)(1) covers only individuals who have directly applied for Medicaid and claims that the redetermination procedure “only makes sense” if the state agency has a separate Medicaid application on file. His argument boils down to essentially one of administrative convenience. As to section 435.930, defendant agrees that this regulation requires the state agency to continue to furnish Medicaid benefits until a recipient is found to be ineligible. Defendant argues, however, that the agency satisfied this requirement because it only discontinued benefits upon learning of plaintiffs’ ineligibility for automatic Medicaid coverage due to their loss of AFDC benefits. Defendant sees no interrelationship between sections 435.916 and 435.930 with respect to these plaintiffs. He argues that the agency was not required to do anything upon learning of plaintiffs’ loss of AFDC benefits because this made plaintiffs automatically ineligible for Medicaid and did not trigger a redetermination process. We do not agree. In Stenson v. Blum, 476 F.Supp. 1331 (S.D.N.Y.1979), aff’d without opinion, 628 F.2d 1345 (2d Cir.), cert. denied, 449 U.S. 885,101 S.Ct. 239, 66 L.Ed.2d 111 (1980), the District Court for the Southern District of New York was confronted with an issue that is nearly identical to the one presented in this case. In Stenson the plaintiffs, a class consisting of recently terminated SSI recipients, sought a preliminary injunction to prevent the state Department of Social Services from suspending their Medicaid benefits until their eligibility was redetermined and, if they were ineligible, until they were afforded notice and an opportunity for a hearing. Id. at 1333. SSI recipients, as is so with the present plaintiffs, are mandatorily covered categorically needy individuals for the purposes of the Medicaid Act. The plaintiffs relied primarily on the same regulations that are dispositive in the present case. In a comprehensive and well-reasoned opinion, Judge Sweet concluded that these regulations require the state agency, upon receipt of notification of an individual’s termination from SSI, to reconsider the recipient’s eligibility for Medicaid benefits. Pending this ex parte determination the state must continue to furnish such individuals with Medicaid benefits, and if it determines that an individual is ineligible, it must give notice and an opportunity for a hearing before termination. Id. at 1339-41. The court explained that these regulations apply to individuals who qualified for Medicaid under any eligibility category. Id. at 1339. We agree with the Stenson court’s conclusion as appropriate to the case before us. Nothing in the relevant regulations evidences an intent to exclude from coverage individuals who automatically qualified for Medicaid as categorically needy. Indeed, the regulatory and statutory scheme points to the opposite conclusion. The regulatory provisions are included in the subpart which “sets forth requirements for processing applications, determining eligibility, and furnishing Medicaid.” 42 C.F.R. § 435.900 (1981). That automatically eligible recipients are covered in this subpart is clear from the inclusion of the regulation prohibiting separate Medicaid applications from AFDC recipients. Moreover, the mere determination that these plaintiffs are “disqualified” from AFDC eligibility cannot in and of itself amount to a speedy “redetermination" of their eligibility for Medicaid within the meaning of the regulations. To the contrary, the regulations suggest that the applicants are still “categorically needy,” since the reason for their disqualification (stepparent income deeming) is expressly made irrelevant to Medicaid eligibility. See 42 U.S.C. § 1396a(a)(17)(D); 42 C.F.R. § 435.113. Our conclusion is also supported by the Medicaid statute itself. Congress mandated that the assistance provided to the mandatorily covered categorically needy cannot be less in “amount, duration, or scope” than the assistance provided to other needy groups. 42 U.S.C. § 1396a(a)(10)(B)(ii). This provision reflects the congressional preference accorded the categorically needy; they are to receive assistance first and in no less comprehensive a form because they are “persons whom Congress considered especially deserving of public assistance . . .. ” Schweiker v. Gray Panthers, 453 U.S. at 37,101 S.Ct. at 2636; see also Schweiker v. Hogan,-U.S. at- & n. 6, 102 S.Ct. at 2601 & n. 6. Thus congressional intent leads to the conclusion that any procedural protections that ensure continuity in benefits should be accorded to the categorically needy. We conclude that plaintiffs have made an extremely strong showing of likelihood of success gn their claim that defendant terminated their Medicaid benefits without following the requisite regulations. Plaintiffs argue that given this strong showing of likelihood of success on the merits, their burden of showing irreparable injury should be commensurately reduced. See Massachusetts Coalition of Citizens with Disabilities v. Civil Defense Agency, 649 F.2d 71, 75 (1st Cir.1981). We need not consider this, however, because plaintiffs have made a sufficient showing of irreparable harm. Plaintiffs presented affidavits of several class members who, since termination, have been financially unable to obtain necessary medical treatment. Termination of benefits that causes individuals to forgo such necessary medical care is clearly irreparable injury. See Becker v. Toia, 439 F.Supp. 324, 336 (S.D.N.Y.1977); Bass v. Richardson, 338 F.Supp. 478, 489 (S.D.N.Y. 1971). At oral argument counsel for defendant admitted that the plaintiffs would be eligible for Medicaid unless their income drastically increased or the children reached the age of twenty-one. An increase in income for any of these plaintiffs sufficient to render them ineligible for Medicaid would be a minor miracle; reaching the age of twenty-one for most of the children is not actuarially possible within the time limits of this case. Defendant’s claimed injury from the loss of public funds to ineligible individuals is, in reality, no injury at all, just a remote possibility of injury. Thus the harm to plaintiffs far outweighs that of defendant and a preliminary injunction must issue. The order of the district court denying preliminary injunctive relief to the subclass of plaintiffs is vacated. The case is remanded to the district court with instructions to issue forthwith a preliminary injunction reinstating the Medicaid benefits of the subclass of plaintiffs until the defendant complies with the statutory and regulatory provisions requiring redetermination of Medicaid eligibility prior to termination of benefits and affords plaintiffs their requisite fair hearing rights if they are found ineligible. So ordered. . Defendant’s claim that plaintiffs never applied for Medicaid benefits is simply incorrect. Since the federal regulations prohibit a state from requiring a separate application for Medicaid from AFDC recipients, an AFDC application once granted is an application for Medicaid. See Dixon v. Quern, 537 F.Supp. 983, 988 (N.D.I11.1982). . The parties stipulated that since defendant’s issuance of notices in compliance with the district court’s order, only 82, or 1.86%, of the 4,400 terminated families have had their Medicaid benefits restored. 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_casedisposition	C	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. BUTZ, SECRETARY OF AGRICULTURE, et al. v. GLOVER LIVESTOCK COMMISSION CO., INC. No. 71-1545. Argued February 27, 1973 Decided March 28, 1973 Brennan, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Stewart, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 189. Keith A. Jones argued the cause for petitioners. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wood, Morton Hollander, and William Kanter. R. A. Eilbott, Jr., argued the cause for respondent. With him on the brief was Edward I. Staten. Mr. Justice Brennan delivered the opinion of the Court. The Judicial Officer of the Department of Agriculture, acting for the Secretary of Agriculture, found that respondent, a registrant under the Packers and Stockyards Act, 1921, 42 Stat. 159, 7 U. S. C. § 181 et seq., wilfully violated §§ 307 (a) and 312 (a) of the Act, 7 U. S. C. §§ 208 (a) and 213 (a), by incorrect weighing of livestock, and also breached § 401, 7 U. S. C. § 221, by entries of false weights. An order was entered directing that respondent cease and desist from the violations and keep correct accounts, and also suspending respondent as a registrant under the Act for 20 days. Upon review of the decision and order, the Court of Appeals for the Eighth Circuit upheld, as supported by substantial evidence, the findings that respondent violated the Act by short-weighting cattle, and also sustained the cease-and-desist order and the order to keep correct accounts. The Court of Appeals, however, set aside the 20-day suspension. 454 F. 2d 109 (1972). We granted certiorari to consider whether, in doing so, the Court of Appeals exceeded the scope of proper judicial review of administrative sanctions. 409 U. S. 947 (1972). We conclude that the setting aside of the suspension was an impermissible judicial intrusion into the administrative domain under the circumstances of this case, and reverse. Respondent operates a stockyard in Pine Bluff, Arkansas. As a registered “market agency” under § 303 of the Act, 7 U. S. C. § 203, respondent is authorized to sell consigned livestock on commission, subject to the regulatory provisions of the Act and the Secretary’s implementing regulations. Investigations of respondent’s operations in 1964, 1966, and 1967 uncovered instances of underweighing of consigned livestock. Respondent was informally warned to correct the situation, but when a 1969 investigation revealed more underweighing, the present proceeding was instituted by the Administrator of the Packers and Stockyards Administration. Following a hearing and the submission of briefs, the Department of Agriculture hearing examiner found that respondent had “intentionally weighed the livestock at less than their true weights, issued scale tickets and accountings to the consignors on the basis of the false weights, and paid the consignors on the basis of the false weights.” The hearing examiner recommended, in addition to a cease-and-desist order and an order to keep correct records, a 30-day suspension of respondent’s registration under the Act. The matter was then referred to the Judicial Officer.After hearing oral argument, the Judicial Officer filed a decision and order accepting the hearing examiner’s findings and adopting his recommendations of a cease-and-desist order and an order to keep correct records. The recommended suspension was also imposed but was reduced to 20 days. The Judicial Officer stated: “It is not a pleasant task to impose sanctions but in view of the previous warnings given respondent we conclude that we should not only issue a cease and desist order but also a suspension of respondent as a registrant under the act but for a lesser period than recommended by complainant and the hearing examiner.” 30 Agri. Dec. 179, 186 (1971). The Court of Appeals agreed that 7 U. S. C. § 204 authorized the Secretary to suspend “any registrant found in violation of the Act,” 454 F. 2d, at 113, that the suspension procedure here satisfied the relevant requirements of the Administrative Procedure Act, 5 U. S. C. § 558, and that “the evidence indicates that [respondent] acted with careless disregard of the statutory requirements and thus meets the test of wilfulness.’ ” 454 F. 2d, at 115. The court nevertheless concluded that the suspension order was “unconscionable” under the circumstances of this case. The court gave two reasons. The first, relying on four previous suspension decisions, was that the Secretary’s practice was not to impose suspensions for negligent or careless violations but only for violations found to be “intentional and flagrant,” and therefore that the suspension in respondent’s case was contrary to a policy of “ ‘achieving] . . . uniformity of sanctions for similar violations.’ ” The second reason given was that “[t]he cease and desist order coupled with the damaging publicity surrounding these proceedings would certainly seem appropriate and reasonable with respect to the practice the Department seeks to eliminate.” Id., at 114, 115. The applicable standard of judicial review in such cases required review of the Secretary’s order according to the “fundamental principle . . . that where Congress has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy 'the relation of remedy to policy is peculiarly a matter for administrative competence.’ ” American Power Co. v. SEC, 329 U. S. 90, 112 (1946). Thus, the Secretary’s choice of sanction was not to be overturned unless the Court of Appeals might find it “unwarranted in law or . . . without justification in fact . . . Id., at 112-113; Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 194 (1941); Moog Industries, Inc. v. FTC, 355 U. S. 411, 413-414 (1958); FTC v. Universal-Rundle Corp., 387 U. S. 244, 250 (1967); 4 K. Davis, Administrative Law §30.10, pp. 250-251 (1958). The Court of Appeals acknowledged this definition of the permissible scope of judicial review but apparently regarded respondent’s suspension as “unwarranted in law” or “without justification in fact.” We cannot agree that the Secretary’s action can be faulted in either respect on this record. We read the Court of Appeals’ opinion to suggest that the sanction was “unwarranted in law” because “uniformity of sanctions for similar violations” is somehow mandated by the Act. We search in vain for that requirement in the statute. The Secretary may suspend “for a reasonable specified period” any registrant who has violated any provision of the Act. 7 U. S. C. § 204. Nothing whatever in that provision confines its application to cases of “intentional and flagrant conduct” or denies its application in cases of negligent or careless violations. Rather, the breadth of the grant of authority to impose the sanction strongly implies a congressional purpose to permit the Secretary to impose it to deter repeated violations of the Act, whether intentional or negligent. Hyatt v. United States, 276 F. 2d 308, 313 (CA10 1960) ; G. H. Miller & Co. v. United States, 260 F. 2d 286 (CA7 1958); In re Silver, 21 Agri. Dec. 1438, 1452 (1962). The employment of a sanction within the authority of an administrative agency is thus not rendered invalid in a particular case because it is more severe than sanctions imposed in other cases. FCC v. WOKO, 329 U. S. 223, 227-228 (1946); FTC v. Universal-Rundle Corp., 387 U. S., at 250, 251; G. H. Miller & Co. v. United States, supra, at 296; Hiller v. SEC, 429 F. 2d 856, 858-859 (CA2 1970); Dlugash v. SEC, 373 F. 2d 107, 110 (CA2 1967) ; Kent v. Hardin, 425 F. 2d 1346, 1349 (CA5 1970). Moreover, the Court of Appeals may have been in error in acting on the premise that the Secretary’s practice was to impose suspensions only in cases of “intentional and flagrant conduct.” The Secretary’s practice, rather, apparently is to employ that sanction as in his judgment best serves to deter violations and achieve the objectives of that statute. Congress plainly intended in its broad grant to give the Secretary that breadth of discretion. Therefore, mere unevenness in the application of the sanction does not render its application in a particular case “unwarranted in law.” Nor can we perceive any basis on this record for a conclusion that the suspension of respondent was so “without justification in fact” “as to constitute an abuse of [the Secretary’s] discretion.” American Power Co. v. SEC, 329 U. S., at 115; Moog Industries, Inc. v. FTC, 355 U. S., at 414; Barsky v. Board of Regents, 347 U. S. 442, 455 (1954). The Judicial Officer rested the suspension on his view of its necessity in light of respondent’s disregard of previous warnings. The facts found concerning the previous warnings and respondent’s disregard of these warnings were sustained by the Court of Appeals as based on ample evidence. In that circumstance, the overturning of the suspension authorized by the statute was an impermissible intrusion into the administrative domain. Similarly, insofar as the Court of Appeals rested its action on its view that, in light of damaging publicity about the charges, the cease-and-desist order sufficiently redressed respondent’s violations, the court clearly exceeded its function of judicial review. The fashioning of an appropriate and reasonable remedy is for the Secretary, not the court. The court may decide only whether, under the pertinent statute and relevant facts, the Secretary made “an allowable judgment in [his] choice of the remedy.” Jacob Siegel Co. v. FTC, 327 U. S. 608, 612 (1946). Reversed. 7 U. S. C. §§ 201-217a. Specifically, registrants are prohibited from engaging in or using “any unfair, unjustly discriminatory, or deceptive practice or device in connection with . . . receiving, marketing, buying, or selling on a commission basis or otherwise, feeding, watering, holding, delivery, shipment, weighing, or handling ... of livestock,” 7 U. S. C. §213 (a), and are required to “keep such accounts, records, and memoranda as fully and correctly disclose all transactions involved in his business 7 U. S. C. §221. The Secretary’s regulations may be found in 9 CFR pt. 201. App. 35. The Court of Appeals stated: “Ordinarily it is not for the courts to modify ancillary features of agency orders which are supported by substantial evidence. The shaping of remedies is peculiarly within the special competence of the regulatory agency vested by Congress with authority to deal with these matters, and so long as the remedy selected does not exceed the agency’s statutory power to impose and it bears a reasonable relation to the practice sought to be eliminated, a reviewing court may not interfere. . . . [A]ppellate courts [may not] enter the more spacious domain of public policy which Congress has entrusted in the various regulatory agencies.” 454 F. 2d 109, 114. The Court of Appeals cited a 1962 decision by the Secretary in which appears a reference to “uniformity of sanctions for similar violations.” In re Silver, 21 Agri. Dec. 1438 (1962). That reference is no support for the Court of Appeals’ decision, however, for the Secretary said expressly in that decision: “False and incorrect weighing of livestock by registrants under the act is a flagrant and serious violation thereof ...” and “even if respondent did not give instructions for the false weighings, his negligence in allowing the false weighings over an extended period brings such situation unthin the reach of the cited cases [sustaining sanctions] and we would still order the sanctions below.” Id., at 1452 (emphasis added). It is by no means clear that respondent’s violations were merely negligent. The hearing examiner found that respondent had “intentionally” underweighed livestock, and the Judicial Officer stated: “We conclude then, as did the hearing examiner, that respondent wilfully violated . . . the act.” (Emphasis added.) “Wilfully” could refer to either intentional conduct or conduct that was merely careless or negligent. It seems clear, however, that the Judicial Officer sustained the hearing examiner’s finding that the violations were “intentional.” See, e. g., In re Martella, 30 Agri. Dec. 1479 (1971); In re Meggs, 30 Agri. Dec. 1314 (1971); In re Producers Livestock Mar keting Assn., 30 Agri. Dec. 796 (1971); In re Trimble, 29 Agri. Dec. 936 (1970); In re Anson, 28 Agri. Dec. 1127 (1969); In re Williamstown Stockyards, 27 Agri. Dec. 252 (1968); In re Middle Georgia Livestock Sales Co., 23 Agri. Dec. 1361 (1964). These cases involve suspension of registrants under the Packers and Stockyards Act for false weighing of producers’ livestock and in none was there a finding that the violation was intentional or flagrant. There are also many cases of suspension for diverse other violations without a finding that the conduct was intentional or flagrant. See, e. g., In re Wallis, 29 Agri. Dec. 37 (1970). 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_casesource	028	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. UNITED STATES, Petitioner v. Evelyn SINENENG-SMITH No. 19-67 Supreme Court of the United States. Argued February 25, 2020 Decided May 7, 2020 Noel J. Francisco, Solicitor General, Brian A. Benczkowski, Assistant Attorney General, Eric J. Feigin, Matthew Guarnieri, Assistants to the Solicitor General, Scott A.C. Meisler, Attorney, Department of Justice, Washington, DC, for Petitioner. Daniel F. Cook, Bodega Bay, CA, Alan E. Schoenfeld, Emily J. Barnet, Wilmer Cutler Pickering, Hale and Dorr LLP, New York, NY, Beth C. Neitzel, Wilmer Cutler Pickering, Hale and Dorr LLP, Washington, DC, Mark C. Fleming, Eric L. Hawkins, Vinay Nayak, Wilmer Cutler Pickering, Hale and Dorr LLP, Boston, MA, Thomas G. Sprankling, Wilmer Cutler Pickering, Hale and Dorr LLP, Palo Alto, CA, for Respondent. Justice GINSBURG delivered the opinion of the Court. This case concerns 8 U.S.C. § 1324, which makes it a federal felony to "encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law." § 1324(a)(1)(A)(iv). The crime carries an enhanced penalty if "done for the purpose of commercial advantage or private financial gain." § 1324(a)(1)(B)(i). Respondent Evelyn Sineneng-Smith operated an immigration consulting firm in San Jose, California. She was indicted for multiple violations of § 1324(a)(1)(A)(iv) and (B)(i). Her clients, most of them from the Philippines, worked without authorization in the home health care industry in the United States. Between 2001 and 2008, Sineneng-Smith assisted her clients in applying for a "labor certification" that once allowed certain aliens to adjust their status to that of lawful permanent resident permitted to live and work in the United States. § 1255(i)(1)(B)(ii). There was a hindrance to the efficacy of Sineneng-Smith's advice and assistance. To qualify for the labor-certification dispensation she promoted to her clients, an alien had to be in the United States on December 21, 2000, and apply for certification before April 30, 2001. § 1255(i)(1)(C). Sineneng-Smith knew her clients did not meet the application-filing deadline; hence, their applications could not put them on a path to lawful residence. Nevertheless, she charged each client $5,900 to file an application with the Department of Labor and another $900 to file with the U.S. Citizenship and Immigration Services. For her services in this regard, she collected more than $3.3 million from her unwitting clients. In the District Court, Sineneng-Smith urged unsuccessfully, inter alia , that the above-cited provisions, properly construed, did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First Amendment as applied. See Motion to Dismiss in No. 10-cr-414 (ND Cal.), pp. 7-13, 20-25; Motion for Judgt. of Acquittal in No. 10-cr-414 (ND Cal.), pp. 14-19, 20-25. She was convicted on two counts under § 1324(a)(1)(A)(iv) and (B)(i), and on other counts (filing false tax returns and mail fraud) she does not now contest. Throughout the District Court proceedings and on appeal, she was represented by competent counsel. On appeal from the § 1324 convictions to the Ninth Circuit, both on brief and at oral argument, Sineneng-Smith essentially repeated the arguments she earlier presented to the District Court. See Brief for Appellant in No. 15-10614 (CA9), pp. 11-28. The case was then moved by the appeals panel onto a different track. Instead of adjudicating the case presented by the parties, the appeals court named three amici and invited them to brief and argue issues framed by the panel, including a question Sineneng-Smith herself never raised earlier: "[W]hether the statute of conviction is overbroad ... under the First Amendment." App. 122-124. In the ensuing do over of the appeal, counsel for the parties were assigned a secondary role. The Ninth Circuit ultimately concluded, in accord with the invited amici 's arguments, that § 1324(a)(1)(A)(iv) is unconstitutionally overbroad. 910 F.3d 461, 485 (2018). The Government petitioned for our review because the judgment of the Court of Appeals invalidated a federal statute. Pet. for Cert. 24. We granted the petition. 588 U.S. ----, 140 S.Ct. 36, 204 L.Ed.2d 1194 (2019). As developed more completely hereinafter, we now hold that the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion. We therefore vacate the Ninth Circuit's judgment and remand the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel. I In our adversarial system of adjudication, we follow the principle of party presentation. As this Court stated in Greenlaw v. United States , 554 U.S. 237, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008), "in both civil and criminal cases, in the first instance and on appeal ..., we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present." Id ., at 243, 128 S.Ct. 2559. In criminal cases, departures from the party presentation principle have usually occurred "to protect a pro se litigant's rights." Id. , at 244, 128 S.Ct. 2559 ; see, e.g. , Castro v. United States , 540 U.S. 375, 381-383, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003) (affirming courts' authority to recast pro se litigants' motions to "avoid an unnecessary dismissal" or "inappropriately stringent application of formal labeling requirements, or to create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis" (citation omitted)). But as a general rule, our system "is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief." Id. , at 386, 124 S.Ct. 786 (Scalia, J., concurring in part and concurring in judgment). In short: "[C]ourts are essentially passive instruments of government." United States v. Samuels , 808 F.2d 1298, 1301 (CA8 1987) (Arnold, J., concurring in denial of reh'g en banc). They "do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties." Ibid. The party presentation principle is supple, not ironclad. There are no doubt circumstances in which a modest initiating role for a court is appropriate. See, e.g. , Day v. McDonough , 547 U.S. 198, 202, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (federal court had "authority, on its own initiative," to correct a party's "evident miscalculation of the elapsed time under a statute [of limitations]" absent "intelligent waiver"). But this case scarcely fits that bill. To explain why that is so, we turn first to the proceedings in the District Court. In July 2010, a grand jury returned a multicount indictment against Sineneng-Smith, including three counts of violating § 1324, three counts of mail fraud in violation of 18 U.S.C. § 1341, and two counts of willfully subscribing to a false tax return in violation of 26 U.S.C. § 7206(1). Sineneng-Smith pleaded guilty to the tax-fraud counts, App. to Pet. for Cert. 78a-79a, and did not pursue on appeal the two mail-fraud counts on which she was ultimately convicted. We therefore concentrate this description on her defenses against the § 1324 charges. Before trial, Sineneng-Smith moved to dismiss the § 1324 counts. Motion to Dismiss in No. 10-cr-414 (ND Cal.). She asserted first that the conduct with which she was charged-advising and assisting aliens about labor certifications-is not proscribed by § 1324(a)(1)(A)(iv) and (B)(i). Being hired to file lawful applications on behalf of aliens already residing in the United States, she maintained, did not "encourage" or "induce" them to remain in this country. Id. , at 7-13. Next, she urged, alternatively, that clause (iv) is unconstitutionally vague and therefore did not provide fair notice that her conduct was prohibited, id. , at 13-18, or should rank as a content-based restraint on her speech, id. , at 22-24. She further asserted that she has a right safeguarded to her by the Petition and Free Speech Clauses of the First Amendment to file applications on her clients' behalf. Id., at 20-25. Nowhere did she so much as hint that the statute is infirm, not because her own conduct is protected, but because it trenches on the First Amendment sheltered expression of others. The District Court denied the motion to dismiss, holding that Sineneng-Smith could "encourag[e]" noncitizens to remain in the country, within the meaning of § 1324(a)(1)(A)(iv), "[b]y suggesting to [them] that the applications she would make on their behalf, in exchange for their payments, would allow them to eventually obtain legal permanent residency in the United States." App. to Pet. for Cert. 73a. The court also rejected Sineneng-Smith's constitutional arguments, reasoning that she was prosecuted, not for filing clients' applications, but for falsely representing to noncitizens that her efforts, for which she collected sizable fees, would enable them to gain lawful status. Id. , at 75a. After a 12-day trial, the jury found Sineneng-Smith guilty on the three § 1324 counts charged in the indictment, along with the three mail-fraud counts. App. 118-121. Sineneng-Smith then moved for a judgment of acquittal. She renewed, "almost verbatim," the arguments made in her motion to dismiss, App. to Pet. for Cert. 65a, and the District Court rejected those arguments "[f]or the same reasons as the court expressed in its order denying Sineneng-Smith's motion to dismiss," ibid . She simultaneously urged that the evidence did not support the verdicts. Motion for Judgt. of Acquittal in No. 10-cr-414 (ND Cal.), at 1-14. The District Court found the evidence sufficient as to two of the three § 1324 counts and two of the three mail-fraud counts. App. to Pet. for Cert. 67a. Sineneng-Smith's appeal to the Ninth Circuit from the District Court's § 1324 convictions commenced unremarkably. On brief and at oral argument, she reasserted the self-regarding arguments twice rehearsed, initially in her motion to dismiss, and later in her motion for acquittal. Brief for Appellant in No. 15-10614 (CA9), at 9-27, 35-41; Recording of Oral Arg. (Apr. 18, 2017), at 37:00-39:40; see supra , at 1579 - 1580. With the appeal poised for decision based upon the parties' presentations, the appeals panel intervened. It ordered further briefing, App. 122-124, but not from the parties. Instead, it named three organizations-"the Federal Defender Organizations of the Ninth Circuit (as a group)[,] the Immigrant Defense Project[,] and the National Immigration Project of the National Lawyers Guild"-and invited them to file amicus briefs on three issues: "1. Whether the statute of conviction is overbroad or likely overbroad under the First Amendment, and if so, whether any permissible limiting construction would cure the First Amendment problem? "2. Whether the statute of conviction is void for vagueness or likely void for vagueness, either under the First Amendment or the Fifth Amendment, and if so, whether any permissible limiting construction would cure the constitutional vagueness problem? "3. Whether the statute of conviction contains an implicit mens rea element which the Court should enunciate. If so: (a) what should that mens rea element be; and (b) would such a mens rea element cure any serious constitutional problems the Court might determine existed?" Ibid. Counsel for the parties were permitted, but "not required," to file supplemental briefs "limited to responding to any and all amicus/amici briefs ." Id. , at 123 (emphasis added). Invited amici and amici not specifically invited to file were free to "brief such further issues as they, respectively, believe the law, and the record calls for." Ibid. The panel gave invited amici 20 minutes for argument, and allocated only 10 minutes to Sineneng-Smith's counsel. Reargument Order in No. 15-10614 (CA9), Doc. No. 92. Of the three specified areas of inquiry, the panel reached only the first, holding that § 1324(a)(1)(A)(iv) was facially overbroad under the First Amendment, 910 F.3d at 483-485, and was not susceptible to a permissible limiting construction, id., at 472, 479. True, in the redone appeal, Sineneng-Smith's counsel adopted without elaboration counsel for amici 's overbreadth arguments. See Supplemental Brief for Appellant in No. 15-10614 (CA9), p. 1. How could she do otherwise? Understandably, she rode with an argument suggested by the panel. In the panel's adjudication, her own arguments, differently directed, fell by the wayside, for they did not mesh with the panel's overbreadth theory of the case. II No extraordinary circumstances justified the panel's takeover of the appeal. Sineneng-Smith herself had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that § 1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother's plea to her alien grandchild to remain in the United States. 910 F.3d at 483-484. Nevermind that Sineneng-Smith's counsel had presented a contrary theory of the case in the District Court, and that this Court has repeatedly warned that "invalidation for [First Amendment] overbreadth is 'strong medicine' that is not to be 'casually employed.' " United States v. Williams , 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (quoting Los Angeles Police Dept. v. United Reporting Publishing Corp. , 528 U.S. 32, 39, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) ). As earlier observed, see supra, at 1579, a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit's radical transformation of this case goes well beyond the pale. * * * For the reasons stated, we vacate the Ninth Circuit's judgment and remand the case for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties. It is so ordered. Addendum of cases, 2015-2020, in which this Court called for supplemental briefing or appointed amicus curiae This Court has sought supplemental briefing: to determine whether a case presented a controversy suitable for the Court's review, Trump v. Mazars USA, LLP, --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ----, 2020 WL 1978940 (2020) (ordering briefing on application of political question doctrine and related justiciability principles); Frank v. Gaos , 586 U.S. ----, 139 S.Ct. 475, 202 L.Ed.2d 363 (2018) (ordering briefing on Article III standing); Wittman v. Personhuballah , 576 U.S. 1093, 136 S.Ct. 25, 192 L.Ed.2d 996 (2015) (same); Docket Entry in Gloucester County School Bd. v. G. G. , O. T. 2016, No. 16-273 (Feb. 23, 2017) (ordering briefing on intervening Department of Education and Department of Justice guidance document); Kingdomware Technologies, Inc. v. United States , 577 U.S. 970, 136 S.Ct. 444, 193 L.Ed.2d 345 (2015) (ordering briefing on mootness); to determine whether the case could be resolved on a basis narrower than the question presented, Zubik v. Burwell , 578 U.S. ----, --- S.Ct. ----, 194 L.Ed.2d 599 (2016) (ordering briefing on whether the plaintiffs could obtain relief without entirely invalidating challenged federal regulations); and to clarify an issue or argument the parties raised, Google LLC v. Oracle America, Inc., --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ----, 2020 WL 2105207 (2020) (ordering further briefing on the parties' dispute over the standard of review applicable to the question presented); Babb v. Wilkie , 589 U.S. ----, 140 S.Ct. 917, 205 L.Ed.2d 518 (2020) (ordering briefing on an assertion counsel made for the first time at oral argument about alternative remedies available to the plaintiff); Sharp v. Murphy , reported sub nom. Carpenter v. Murphy , 586 U.S. ----, 139 S.Ct. 626, 202 L.Ed.2d 452 (2018) (ordering briefing on the implications of the parties' statutory interpretations). In rare instances, we have ordered briefing on a constitutional issue implicated, but not directly presented, by the question on which we granted certiorari. See Jennings v. Rodriguez , 580 U.S. ----, 137 S.Ct. 471, 196 L.Ed.2d 490 (2016) (in a case about availability of a bond hearing under a statute mandating detention of certain noncitizens, briefing ordered on whether the Constitution requires such a hearing); Johnson v. United States , 574 U.S. 1069, 135 S.Ct. 939, 190 L.Ed.2d 718 (2015) (in a case involving interpretation of the Armed Career Criminal Act's residual clause, briefing ordered on whether that clause is unconstitutionally vague). But in both cases, the parties had raised the relevant constitutional challenge in lower courts; the question was not interjected into the case for the first time by an appellate forum. In Jennings , moreover, the parties' statutory arguments turned expressly on the constitutional issue. Jennings v. Rodriguez , 583 U.S. ----, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018). And in Johnson , although this Court had interpreted the Act's residual clause four times in the preceding nine years, there still remained "pervasive disagreement" in the lower courts about its application. Johnson v. United States , 576 U.S. 591, 601, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). We have appointed amicus curiae : to present argument in support of the judgment below when a prevailing party has declined to defend the lower court's decision or an aspect of it, Seila Law LLC v. Consumer Financial Protection Bureau , 589 U. Question: What is the court whose decision the Supreme Court reviewed? 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. 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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 Answer:
songer_genresp1	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 first listed respondent. Larry Francis WEIR, Appellant, v. H. A. SIMMONS, First True and Real Name Unknown, Appellee. No. 17980. United States Court of Appeals Eighth Circuit. March 9, 1966. See also, D.C., 233 F.Supp. 657. Richard J. Bruckner, of Schrempp, Lathrop & Rosenthal, Omaha, Neb., Henry C. Rosenthal, Jr., and David S. La-throp, of Schrempp, Lathrop & Rosen-thal, Omaha, Neb., for appellant. Howard E. Tracy, of Luebs, Elson, Tracy & Huebner, Grand Island, Neb., Richard A. Huebner, of Luebs, Elson, Tracy & Huebner, Grand Island, Neb., for appellee. Before VOGEL, Chief Judge, and VAN OOSTERHOUT and MEHAFFY, Circuit Judges. MEHAFFY, Circuit Judge. Plaintiff, Larry Francis Weir, brought this action for damages against defendant, H. A. Simmons, for personal injuries received in a collision between plaintiff’s motorcycle and defendant’s tractor-trailer near Heartwell, Nebraska. Plaintiff specified numerous acts of negligence, all of which were denied by defendant, who in turn pleaded contributory negligence by plaintiff. Diversity of citizenship and the requisite amount in controversy established jurisdiction. The case was tried to a jury which returned a verdict for defendant. Judgment was entered thereon and we affirm. Early in its comprehensive charge to the jury, the trial court recited the allegations of negligence pleaded by each party. In the concluding paragraph of said instruction, the court explained: “The foregoing is an extended statement of the contentions of the parties as set forth in their pleadings, and is given you to inform you as to the issues involved in these cases.” Plaintiff now argues “that it was prejudicial error to instruct the jury on these allegations of negligence for the record is absolutely devoid of any evidence to support them.” These instructions were not binding and amounted to nothing more than an explanation by the court of the respective claims of the parties. The purpose of instructions is to apprise the jury of the questions and issues involved and the applicable rules of law. Terminal R. R. Ass’n v. Howell, 165 F.2d 135, 139 (8th Cir. 1948); Coyle v. Stopak, 165 Neb. 594, 86 N.W.2d 758 (1957); Barney v. Adcock, 162 Neb. 179, 75 N.W.2d 683 (1956). We cannot conceive how these innocuous portions of the pleadings could have been in any wise prejudicial as they were justified by the evidence as hereafter will be shown, and would have been proper even if they had been binding on defendant’s theory of the case, e. g., Kroeger v. Safranek, 161 Neb. 182, 72 N.W.2d 831 (1955). It is proper for a court to state the respective claims of the parties and, if there is evidence to support the proposition, each party is entitled to instructions on its theory of the case. Chicago & N. W. Ry. v. Green, 164 F.2d 55, 61 (8th Cir. 1947); Beck v. Trustin, 177 Neb. 788, 131 N.W.2d 425, 432 (1964); Gain v. Drennen, 160 Neb. 263, 266, 69 N.W.2d 916, 918 (1955); Rice v. American Protective Health & Acc. Co., 157 Neb. 256, 263-264, 59 N.W.2d 378, 383 (1953). A brief recitation of the facts disclosed by the evidence is helpful because, in our opinion, the circumstantial evidence and proof of physical facts justified the trial court in submitting the issue of plaintiff’s negligence to the jury. Both plaintiff and defendant’s vehicles were traveling east on U. S. Highway 6-34 and approaching the north-south intersection with a public road leading north into Heartwell, Nebraska. The accident occurred about 8:30 a. m. April 20, 1962 on a dry, sunshiny morning. There was little vehicular traffic. Some two thousand feet west of the intersection, defendant, while traveling at a speed of approximately fifty-five miles per hour, approached a viaduct and with knowledge that he was going to turn north, or to his left, at the intersection, activated his electrical left turn signal. The edges of the two lane concrete highway were bordered by six inch drainage curbing. The intersecting road was dirt and gravel. Defendant was familiar with the curbing and to avoid damaging his tractor-trailer reduced his speed to approximately five miles per hour before leaving the highway. At no time during this approach did defendant see the plaintiff in his rear view mirror. Somewhere near the crest of the viaduct and approximately one hundred fifty feet west of the intersection, plaintiff undertook to pass defendant, and as defendant turned left and entered the gravel road leading to Heartwell the two vehicles collided. Plaintiff admitted only that he noticed the trailer’s lights as defendant applied his brakes and reduced his speed in approaching the intersection. Engineering maps and photographs of the existing conditions approaching and at the scene of the accident were introduced as stipulated exhibits. These disclosed, among other things, a clearly obvious highway sign warning of the intersecting road. Within minutes after the accident, a Nebraska highway patrolman arrived at the scene. His investigation report revealed that the left turn signal on defendant’s truck was still activated. A “squash” mark was found on the north curbing and pavement indicating that the motorcycle had struck the north curb forty-six feet west of the point of impact. Physical marks defined the path of the motorcycle from the point where it struck the north curbing up to the point of impact. The last eight to ten feet of this distance denoted a “feathered out mark” suggesting that the motorcycle skidded on its side into the truck. From all of the circumstantial evidence and physical facts, the jury could have properly inferred that plaintiff, from a position close behind the tractor, undertook to pass in spite of approaching the intersection, and in so doing the motorcycle first collided with the north curbing causing plaintiff to lose control and skid into the side of defendant’s tractor which had partially entered the intersection. There was ample room for the motorcycle to turn left at the intersection short of striking the truck if plaintiff had been in reasonable control of his machine. Plaintiff bases his argument primarily on the fact that aside from his testimony there was no other eyewitness evidence. There need be none as negligence is a factual issue and can as well be proven by circumstantial evidence. The Supreme Court of Nebraska, quoting from earlier authority, said in Davis v. Dennert, 162 Neb. 65, 73, 75 N.W.2d 112, 118 (1956): “ ‘Negligence is a question of fact and may be proved by circumstantial evidence and physical facts. All that the law requires is that the facts and circumstances proved, together with the inferences that may be properly drawn therefrom, shall indicate with reasonable certainty the negligent act charged.’ ” (Citation omitted.) See also Flory v. Holtz, 176 Neb. 531, 126 N.W.2d 686 (1964); Howell v. Robinson Iron & Metal Co., 173 Neb. 445, 113 N.W.2d 584 (1962); Coyle v. Stopak, supra. Defendant would have us hold as a matter of law that plaintiff’s testimony was not sufficient to make a prima facie case because it was manifestly untrue. Plaintiff did indeed testify at trial contrary to his pretrial deposition. His reason for changing his version of the accident was that the testimony of the highway patrolman had proved him wrong. It is only in extraordinary cases that a court is justified in disregarding sworn testimony, and it is primarily and preferably a question for the trial court’s determination. The trial court here did not disregard plaintiff’s testimony, and we do not reach the question because sufficient evidence was adduced making a proper basis for the jury’s verdict. Plaintiff next complains of the court’s usage of the word “proper”, rather than “reasonable,” when expressing defendant’s contention that plaintiff “failed to keep his motorcycle under proper control in that he failed to keep it upright on its wheels.” (Emphasis ours.) We note that in Instruction No. 17 when the court specifically instructed on the law of the case the jury was admonished that the driver of a motor vehicle should have such vehicle under reasonable control. There was no error, but even so plaintiff did not object to this language at trial and he cannot effectively do so here for the first time. Fed.R.Civ.P. 51. Plaintiff also objects to the giving of part of Instruction No. 18. This instruction applied to both vehicles. It was general in nature, and when read in context with Instruction No. 17 could not have misled or confused the jury with respect to the degree of control necessary under the circumstances. Again, plaintiff failed to make proper objection at trial and again Rule 51 precludes him from raising it here. The trial court gave thirty-nine instructions. We have carefully considered all of them. They fully, fairly and properly charge the jury on all aspects of the case. As a reviewing court, we must consider them as a whole and have done so and find no error. Jiffy Markets, Inc. v. Vogel, 340 F.2d 495 (8th Cir. 1965); Dun & Bradstreet, Inc. v. Nicklaus, 340 F.2d 882 (8th Cir. 1965), cert. denied, 382 U.S. 825, 86 S.Ct. 57, 15 L.Ed.2d 70 (1965); Hiner v. Nelson, 174 Neb. 725, 119 N.W.2d 288 (1963). Finally, plaintiff submits that the court erred in permitting defendant to describe the turn signals on his truck. It is claimed that no foundation was laid that the signals were of the type approved by the Nebraska Motor Vehicle Department. Defendant described his turn signal as an electric type operated by a small lever below the steering wheel that activated the signals to flash and that said signal device was the same as would be found on trucks of “that nature” and approved by the Motor Vehicle Department. Additionally, he testified that the truck was purchased new in 1960, some six years after the passage of the Nebraska statute requiring this type signal. At the time of the objection, the court advised plaintiff that he would be permitted to rebut defendant’s evidence that the signal device was of the type approved by the Motor Vehicle Department. Whether the signal device did or did not comply with the Nebraska statute is irrelevant as to the admissibility of defendant’s testimony describing the device. It was not incumbent upon defendant to prove anything more, and if plaintiff felt the device was not of the type approved by the Motor Vehicle Department, he was perfectly free to offer such evidence. The trial court did not specifically inform the jury of the type signals authorized or required by Nebraska statute, but undoubtedly would have done so had plaintiff desired it. Both plaintiff’s objection at trial and motion for new trial went only to the admissibility of the evidence and were properly overruled. We have carefully canvassed the entire record and find it free of prejudicial error. The judgment is affirmed. . The following testimony resulted from an inquiry of plaintiff’s speed at the time defendant began his left-hand turn: “Q. Do you mean, sir, that that answer is not true now? A.' Sir, there has been some testimony from the patrolman, from some statements that in the definition that I gave that I can see that I was wrong. “Q. And you have changed your testimony because you heard the testimony of the patrolman; is that what you mean? A. Because the patrolman proved that I was wrong. “Q. And so you bave now taken another version of the accident because of what you heard the patrolman say? A. Yes, sir. sje $ í}: s¡c “Q. You have changed them because of what you heard the patrolman say? A. I have changed them because the patrolman showed me that I was wrong, sir. “Q. And so your version is now different because you have been proven wrong; is that right? A. Yes, sir.” . Instruction No. 17: “A driver of a motor vehicle should have said vehicle under such reasonable control as will enable such driver to avoid collision with other vehicles, assuming that the drivers of other vehicles exercise due care. Reasonable control by drivers of motor vehicles is such as will enable them to avoid collision with other vehicles operated without negligence upon the highways in the exercise of due care; but complete control such as will only prevent a collision by anticipation of negligence or illegal disregard of traffic regulations, in the absence of notice, warning or knowledge, is not required by the laws of Nebraska.” (Emphasis ours.) . Instruction No. 18: “Now you are instructed that the driver of a leading automobile and the operator of a vehicle following have reciprocal duties. Each must exercise due care, must keep his vehicle under reasonable control, must drive at a speed which is reasonable and proper under the circumstances and must give due regard to the rights of others, and in general must so operate his vehicle as to avoid unnecessary collision with the other. The driver of a leading automobile has no absolute legal right superior to the driver of the vehicle following. The leading driver must exercise due care not to turn, slow up or stop without adequate warning of his intention to do so to the driver of the vehicle following. You are instructed that the driver of the vehicle following must exercise reasonable care, likewise, in the control of his vehicle. The driver of the vehicle following must exercise ordinary care as herein defined by watching for signals given by the driver ahead indicating an intention to turn from a direct course and to take such action in event of movement upon the part of the vehicle ahead as a reasonably prudent person would do under the circumstances and conditions then existing.” . Neb.Rev.Stat. § 39-7,116 (Reissue 1960) provides : “The signals required by sections 39-7,-111 and 39-7,115 shall be given either by means of the hand and arm or by a signal lamp or signal device of a type approved by the Department of Motor Vehicles. When a vehicle is so constructed or loaded that a hand and arm signal would not be visible both to the front and rear of such vehicle the signals must be given by such a lamp or device. It shall be unlawful to operate on any public street or highway in this state, any motor vehicle having four or more wheels manufactured or assembled after January 1, 1954, designed or used for the purpose of carrying passengers or freight, unless such vehicle is equipped with the automatic turn signals in workable order.” . “Q. Did you have turn signals on your vehicle? A. I did have. “Q. What type of turn signal were they? A. Electric. “Q. And how were they operated? A. They are operated by a small lever which is below the steering wheel. “Q. And when you turn that lever what happens? A. The turn signals would start flashing. “Q. And where would they flash? A. There is one on the — on each front fender of the tractor and one at — on each corner of the rear of the trailer. “Q. Was there anything unusual about your turn signals, or were they of the same standard type that one finds on trucks of this type generally? A. They are the same as will be found on trucks of that nature. “Q. And they are approved by the highway department, aren’t they? A. They are. “Mr. Rosenthal: I would object, Your Honor, to that because there is no proper foundation that he knows what type has been approved, nor has there been any evidence of the type that has been approved for his vehicle. “The Court: Let’s find out when he bought the truck. I think that may cover it. It had to be on all trucks sold after 1954, wasn’t it, some date in January? “Mr. Rosenthal: The important thing is, Your Honor, they have to be approved by the State. “The Court: Yes, but if the truck was purchased on the open market after that time I think I will not require any further proof. We will see what the answer is. “Q. When did you purchase this truck? A. The truck was purchased new in 1960. “The Court: Now I think I will let the answer stand, and if you have any evidence that they were not proper on rebuttal you can put it in.” 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_genstand	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 civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". In the Matter of VIRTUAL NETWORK SERVICES CORPORATION, Debtor-Appellee. Appeal of UNITED STATES of America. No. 89-2335. United States Court of Appeals, Seventh Circuit. Argued Feb. 22, 1990. Decided May 14, 1990. As Amended May 24, 1990. Thomas R. Lamons, D. Patrick Mullar-key, Gary R. Allen, Debra J. Stefanik, Gary D. Gray, Joanne Rutkowski, U.S. Dept, of Justice, Tax Div., Washington, D.C., for appellant. Stephen T. Bobo, Towbin & Zazove, Richard G. Smolev, Sheldon L. Solow, Chicago, Ill., for debtor-appellee. Before BAUER, Chief Judge, and CUMMINGS, Circuit Judge, and PELL, Senior Circuit Judge. PELL, Senior Circuit Judge. In this appeal, we must decide whether the district court erred in holding, contrary to the bankruptcy court’s judgment, that 11 U.S.C. § 510(c)(1) empowers the bankruptcy court to equitably subordinate the Internal Revenue Service’s (IRS) claim for non-pecuniary loss tax penalties to claims of other creditors in this Chapter 11 liquidation proceeding. I. BACKGROUND On September 23, 1986, Virtual Network Services Corporation (“VNS”), a long-distance telephone service company, filed for Chapter 11 relief. Shortly thereafter, and pursuant to bankruptcy court order, VNS became a debtor-in-possession, operating the business for the benefit of the creditors. See 11 U.S.C. §§ 1107, 1108. VNS subsequently sold most of its operating assets, and filed an amended reorganization plan to liquidate the company. In response, the IRS filed a Proof of Claim against the estate for $625,118.78. The majority of this sum constituted a priority claim for employment and withholding taxes under 11 U.S.C. § 507(a)(7); the remaining $63,022.79 represented pre-petition tax penalties which the IRS identified as a general unsecured claim. See 11 U.S.C. § 507(a)(4). VNS filed an objection with the bankruptcy court contending that the Government’s non-pecuniary loss tax penalty claims should be subordinated to the claims of the other general unsecured creditors based on principles of equitable subordination. The bankruptcy court ruled in favor of the IRS, concluding that equitable subordination principles did not operate in this case and that the claims were considered properly on a par status with the other general unsecured creditors’ claims. VNS appealed to the district court. Following a thorough analysis of § 510(c)’s equitable subordination provision, the district court reversed the bankruptcy court’s judgment, and ordered equitable subordination in the bankruptcy court subordinating the IRS’s claims to those of VNS’s other general unsecured creditors. 98 B.R. 343. Now the Government appeals. II. ANALYSIS Our analysis of the district court’s judgment reversing the decision of the bankruptcy court is governed by a de novo standard of review. See 28 U.S.C. § 157(b)(2)(B) and § 157(b)(1). Section 510(c)(1) allows bankruptcy courts to reorder existing priorities among creditors “under principles of equitable subordination.” As the district court noted in its judgment order, no definition of the phrase appears in the Bankruptcy Reform Act of 1978 (“the Act”). We, therefore, look to the legislative history of § 510(c)(1) to determine whether that throws light on what meaning Congress intended for it, and its applicability here. The IRS claims the district court erred in concluding that the legislative history of § 510(c)(1) authorized equitable subordination in this case for essentially one reason: the historical meaning of equitable subordination. The IRS argues that when the drafters of the Act adopted the language in § 510(c)(1), equitable subordination had a definite and established meaning; the IRS contends that in applying equitable subordination, courts at that time required some inequitable or wrongful conduct on the part of the creditor who sought par status with other general creditors. The IRS urges us to conclude that Congress did not intend for this “established meaning” to be changed by subsequent case law. Since the IRS has not acted inequitably in this case, it contends that the non-pecuniary loss tax penalty claims are not subject to equitable subordination under § 510(c)(1). In analyzing the legislative history, we begin, as did the district court, by noting that the history of the passage of the Bankruptcy Reform Act is unique. Representative Edwards, the House floor manager and the Chairman of the subcommittee introducing the House Amendments on September 28, 1978, stated, “[This] ... is the culmination of over 8 years’ work by a congressional commission, two congressional committees, and numerous outside groups. The amendment accomplishes the substantial reform of the bankruptcy laws for the first time in 40 years.” 124 Cong. Rec. H11,089-H11,117 (daily ed. Sept. 28, 1978), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 6436. Only a few members of Congress were involved in the negotiations of the final versions of the bill. See Klee, Legislative History of the New Bankruptcy Code, 28 DePaul L.Rev. 941 (1979). And although the “eleventh-hour” hearings secured passage of the Act, they resulted in a document representing compromises which were previously unevaluated by congressional committee. See Kennedy, Foreward: A Brief History of the Bankruptcy Reform Act, 58 N.C.L.Rev. 667, 676-77 (1980). Particularly, the committees in charge of evaluating § 510 did not prepare a final report on the section. See Wald, Justice in the Ninety-fifth Congress: An Overview, 64 A.B.A.J. 1854, 1855 (1978). A review of the earlier committee reports reveals, as Representative Edwards noted, that § 510(c)(1) represented a compromise in the language used between the House and Senate versions. See, e.g., S.Rep. No. 989, 95th Cong., 2d Sess. 74 (1978), reprinted in, 1978 U.S.Code & Cong.Admin.News 5787, 5860; H.R.Rep. No. 595, 95th Cong., 1st Sess. 359 (1978), reprinted in, 1978 U.S.Code & Cong.Admin.News 5963, 6315. In addition, as the district court explained, the earlier committee reports could not assess the language of § 510(c)(1) as enacted at that final congressional session. Finally, members of Congress relied extensively on * Representative Edwards and Senator DiConcini, the sponsor and co-sponsor of the House and Senate bills, respectively, to inform them of the numerous compromises recommended prior to final passage of the bill. Accordingly, the district court concluded that the committee reports were inconclusive on the meaning of the term “equitable subordination.” Upon our examination, we are persuaded that the committee reports are necessarily inconclusive as to the meaning of “equitable subordination” as enacted in § 510(c)(1). Also for the reasons above, in analyzing § 510(c)(1), the district court chose to rely on statements made during the final hearings by Representative Edwards and Senator DiConcini. Looking to Representative Edwards’ comments to Congress regarding § 510(c)(1) specifically, we note he stated that, “It is intended that the term “principles of equitable subordination” follow existing case law and leave to the courts development of this principle. To date, under existing law, a claim is generally subordinated only if [the] holder of such claim is guilty of inequitable conduct, or the claim itself is of a status susceptible to subordination, such as a penalty....” 124 Cong.Rec. H11,089-H11,117 (daily ed. Sept. 28, 1978), reprinted in, 1978 U.S. Code & Cong.Admin.News 5787, 6452. Senator DiConcini's statements mirror those made by Representative Edwards. See 124 Cong.Rec. S17,403-S17,434 (daily ed. Sept. 28, 1978), reprinted in, 1978 U.S. Code & Cong.Admin.News 5787, 6521. Based on these statements, the district court concluded that the legislative history of § 510(c)(1) favors a broad reading of the “principles of equitable subordination” and authorizes equitable subordination “as the courts develop[] those principles.” It is true that when Congress adopted the language in § 510(c)(1), equitable subordination was imposed virtually only where there was some wrongful conduct on the part of the creditor. See, e.g., Pepper v. Litton, 308 U.S. 295, 304-05, 60 S.Ct. 238, 244, 84 L.Ed. 281 (1939). As both the IRS and VNS are aware, however, equitable subordination of tax penalty claims did not occur prior to passage of the Act because under the then-existing law, the Bankruptcy Act of 1898, 11 U.S.C. § 93(j), noncompensatory penalty claims owed to the Government were specifically disallowed. See In re Kline, 403 F.Supp. 974 (D.Md.1975), aff'd, 547 F.2d 823 (4th Cir.1977). More telling than this, though, is the Second Circuit’s opinion in In re Stirling Homex Corp., 579 F.2d 206 (2nd Cir.1978), which was decided more than three months prior to passage of the Act. After exploring the equitable jurisdiction of the bankruptcy courts, and the courts’ power to equitably subordinate claims in bankruptcy, the Second Circuit explicitly ordered subordination of claims made by defrauded shareholders who had not acted wrongfully. Id. at 212-13. In addition, the court specifically discussed the thrust of the versions of § 510(c)(1) (formerly numbered § 510(b)) that persuaded it to rule in favor of subordination; the Court concluded that any thing other than equitable subordination in that case “would ... violate [the court’s] sense of simple fairness_” Id. at 215. We think it is eminently not unreasonable to think that the principal managers of the bill were aware of this decision and its implications prior to passage of the section. With this decision, the Government’s position on the historical and established meaning of “equitable subordination” is incorrect. In addition, under § 510(c)(1), a number of courts have provided for equitable subordination without making creditor misconduct a necessary prerequisite for its application. See, e.g., In re Merwede, 84 B.R. 11 (Bkrtcy D.Conn.1988). In fact, this represents the overwhelming view of the bankruptcy courts which have analyzed § 510(c)(1). See, e.g., In re Colin, 44 B.R. 806, 810 (Bankr.S.D.N.Y.1984); In re Quality Sign Co., Inc., 51 B.R. 351 (Bankr.S.D.Ind.1985); In re A.H. Robins Co., Inc., 89 B.R. 555 (Bankr.E.D.Va.1988); In re Johns-Manville Corp., 68 B.R. 618, 627 (Bankr.S.D.N.Y.1986), aff'd, 78 B.R. 407 (S.D.N.Y.1987); In re Airlift Int’l, Inc., 97 B.R. 664 (Bankr.S.D.Fla.1989). The IRS argues, even so, that applying § 510(c)(1) without requiring some wrongful conduct on the part of the creditor nullifies the complementary provision at 11 U.S.C. § 726(a)(4). Section 726(a)(4) is part of Chapter VII, which provides for straight liquidations, not bankruptcies as in Chapter XI. Under § 726(a)(4), noncompensatory penalty claims are automatically subordinated to fourth priority. See 11 U.S.C. § 726(a)(4) (emphasis added). The district court determined, and we agree, that § 726(a) poses “no danger” of inconsistency with § 510(c)(1), since § 726(a) governs the priorities of claims in bankruptcy “[e]xcept as provided in section 510.” Thus, by its very terms, § 726(a)(4) is not rendered meaningless or void by our interpretation of § 510(c)(1). See also Epling, Proposal for Equality of Treatment for Claims in Chapter 7 and Claims in a Liquidating Chapter 11 Case, 4 Bankr. Dev.J. 399, 403, 415 (1987). The IRS also argues, based in large part on language in earlier versions of § 510(c)(1), that the section does not authorize subordination of tax claims, which it contends its present claims are more like than non-pecuniary claims. We have already stated above that the earlier versions of § 510(c)(1), and the committee reports discussing those versions, are inconclusive on the meaning of “principles of equitable subordination.” But the IRS does find some support for its argument in other language in the legislative history. It provides in part: Since the House amendment authorizes subordination of claims only under principles of existing case law, a tax claim would rarely be subordinated under this provision of the bill. 124 Cong.Rec. 32398, 32416 (Rep. Edwards); 124 Cong.Rec. 33998, 34016 (Rep. DeConcini). The district court did not find that the claims made by the IRS were the type considered to be a “tax claim.” As the district court noted, however, the penalty provisions in the tax code are expressly meant to deter and punish: two goals in contravention of any equity or equitable considerations. The IRS’s attempt to re-characterize the tax penalty as a tax claim in order to avoid subordination is not new but it has never succeeded nor do we conclude it should be successful here. See In re Merwede, 84 B.R. at 12; In re Mansfield Tire & Rubber Co., 80 B.R. 395 (Bankr.N.D.Ohio 1987). After considering the congressional statements and legislative history and scheme, we agree with the district court that Congress intended the courts to “develop” the “principles of equitable subordination.” We further conclude, as did the district court, that the principles of equitable subordination are broader than the doctrine which developed prior to § 510(c)(l)'s enactment. It is clear that in principle, equitable subordination no longer requires, in all circumstances, some inequitable conduct on the part of the creditor. In the event this court concluded as we have, the IRS argues that the district court did not, as required, weigh the equities in this particular case, and instead issued a blanket approval allowing courts to equitably subordinate all non-pecuniary loss tax penalty claims involving liquidating Chapter 11 proceedings. The district court concluded that equitable subordination under § 510(c)(1) could be applied in this case, inter alia, because 1) the goal of equitable subordination focuses not on the conduct of the creditor but on fairness to creditors in a particular case, 2) punishing or deterring VNS’s innocent creditors because of VNS’s wrongful conduct serves no purpose, and 3) the IRS’s claims in this case are punitive in nature. The IRS challenges the district court’s reasoning on grounds 2 and 3. The Government argues that it is just as innocent as the general unsecured creditors and therefore it is unfair to make it suffer in relation to those other creditors. Not to the contrary, the district court found that the IRS was innocent, but that it had waited too long to collect its debt, therefore, making it unfair for the court to shift the burden of the debt to other innocent creditors. The facts of this case support this rationale, and we conclude, as did the district court, that as between the various unsecured creditors, those with actual losses in this instance are entitled to have the IRS’s claims equitably subordinated. The IRS also attacks the district court’s findings that the tax penalty claims are punitive by recharacterizing the nature of its claims as “unlike other nonpecuniary loss penalties, [in that they] are designed not just to punish the debtor, but also serve to protect the integrity of tax systems and to reimburse the Government for ... costs incurred as a result of certain taxpayer misconduct.” Appellant’s brief, at 9. This argument also surfaced at oral argument, but in searching the pleadings before the district court, we did not uncover this contention, and question, therefore, whether it is properly before us. See Hays v. Sony Corp. of America, 847 F.2d 412 (7th Cir.1988). Moreover, even if properly raised before the district court, we find this vague assertion is an attempt to diffuse the purpose behind the tax penalties, i.e., to punish those who fail to abide by the taxing structure, and to deter those who might be inclined to avoid tax payment. As such, we conclude that allowing the IRS to recover its non-pecuniary loss claims along with others who have actually “invested” in VNS and lost would be unfair on these facts. As for the other grounds that the district court relied on in applying equitable subordination to the IRS’s claims, we are persuaded that the district court accurately addressed the equities of this case. The district court correctly considered that it was unfair to allow the IRS’s tax penalty claims to come out of the “pockets” of other general unsecured creditors who had not been paid their pecuniary losses. Moreover, in this case the debtor has sold most of its operating assets and filed an amended plan for liquidation. In other words, VNS exists in name only, as an entity out of which remaining funds are distributed, in this case between 15-30% of that due, to its creditors. We agree that the equities in this case favor the subordination of the IRS’s claims to those of the other general unsecured creditors. In sum, we conclude that § 510(c)(1) authorizes courts to equitably subordinate claims to other claims on a ease-by-case basis without requiring in every instance inequitable conduct on the part of the creditor claiming parity among other unsecured general creditors. The district court’s judgment directing the bankruptcy court to equitably subordinate the IRS’s claims in this case is affirmed. Affirmed. . "Non-pecuniary loss tax penalty claims", in other words, are claims by the IRS to collect money from VNS for its delinquent payment of taxes, see 26 U.S.C. § 6653; since the amount is in excess of the tax due and owing, these claims are considered non-pecuniary losses. . Although VNS challenged all of the IRS’s calculations in its Proof of Claim before the bankruptcy court, we limit our discussion to the status of the non-pecuniary loss tax penalty claims which VNS solely contested in the district court. . In the bankruptcy court, VNS made two arguments for equitable subordination: one pursuant to 11 U.S.C. § 726(a), and the other based on 11 U.S.C. § 510(c). The latter ground was primarily relied on in the district court and is also principally relied on here. .11 U.S.C. § 510(c)(1) provides: (c) Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may— (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest...." Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appfed	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 "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. NATIONAL PACKING COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 8839. United States Court of Appeals Tenth Circuit. May 23, 1967. Edward A. Smith, Kansas City, Mo. (George Schwegler, Jr., Wayne F. Caskey, Jr., and Smith, Schwegler & Swartzman, Kansas City, Mo., and Holme, Roberts & Owen, Denver, Colo., of counsel, were with him on the brief), for petitioner. Warren Davison, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Joseph C. Thackery, Atty., N. L. R. B., were with him on the brief), for respondent. Before LEWIS, BREITENSTEIN and SETH, Circuit Judges. BREITENSTEIN, Circuit Judge. This case is before us for the second time. On the first appearance, National Packing Company v. National Labor Relations Board, 10 Cir., 352 F.2d 482, we held that the evidence sustained a finding that the Company had violated § 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), by discharging a group of employees for participation in a protected concerted activity, an economic strike. We declined to enforce the usual order requiring reinstatement with backpay because the Board had not considered the Company’s defense that the strikers were not entitled to the protection of the Act because they had engaged in an activity proscribed by the Act, recognitional picketing within 12 months of a valid election. We remanded the case to the Board for determination of the applicability of the defense. Without taking additional evidence, the Board made a supplemental decision and order holding that no unlawful picketing had occurred. The Company petitions for review of that order and the Board has filed a cross-application for enforcement. The Company is in the business of slaughtering cattle and processing meat at Kansas City, Kansas. During the pertinent period it had about 64 production and 10 maintenance employees. We are concerned with a group of 17 employees made up principally of those on the kill floor and referred to as the Charging Parties because they brought the unfair labor practice charges. In the fall of 1962, the United Packinghouse, Food and Allied Workers, AFL-CIO, petitioned for certification as the collective-bargaining representative of the employees. In these proceedings the Union acted through Felix Hayes, its organizer. At an election held November 1. 1962, the Union lost. No question is raised on the validity of the election. After a 20-minute work stoppage on November 29, about 20 of the production employees walked out on November 30 to protest dangerous working conditions that had caused an injury to an employee. The Company then shut down the plant for several days. The employees set up a committee which met with the Company to discuss wages and working conditions. Nothing was accomplished and, at the suggestion of the Company, the committee was dissolved. A second committee was then formed. After several meetings, the president of the Company said there would be no more meetings. Although the record is not clear, the committee members thought the Company had promised a three-step wage increase with the first step to be reflected in the April 17 paychecks. The April 17 paychecks did not include the increase. When complaint was made, the assistant general manager said that he had heard nothing of the promise. On the next day, a group composed mostly of men from the kill floor struck and began picketing. The strikers told a supervisor that the main reason for their action was that they did not get the promised raise. The next day the supervisor told them that they would have the raise if they went back to work. They refused and said that they “wanted a few things straightened up”; that they wanted Organizer Hayes of the Packinghouse Workers to “talk for them”; that they had been “having nothing but promises”; and that they desired “a better kill standard” and “something in writing.” Shortly thereafter the strikers were all discharged. Hayes talked with the strikers and furnished banners, none of which bore the union name. The signs used by the picketers read “On Strike” and “National Packing Company pays substandard wages.” There was no distribution of leaflets or other materials. The strikers told Hayes that they wanted him to negotiate with the Company for them. He called a supervisor and asked permission to “come in and represent the men.” This request was denied. The conditions surrounding the picketing were of such a disturbing character that a Kansas state court entered an injunction against acts of violence in connection therewith. The pertinent provisions on picketing are contained in the Labor-Management Reporting and Disclosure Act of 1959. The Supreme Court said with reference thereto [National Labor Relations Board v. Drivers, Chauffeurs, Helpers Local Union (Curtis Bros. Case), 362 U.S. 274, 291, 80 S.Ct. 706, 716, 4 L.Ed.2d 710] : “That Act goes beyond the TaftHartley Act to legislate a comprehensive code governing organizational strikes and picketing and draws no distinction between ‘organizational’ and ‘recognitional’ picketing.” Picketing becomes an unfair labor practice (1) when done by a labor organization (2) within 12 months after a valid election (3) for the purpose of “forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees.”2 In the instant case, the picketing took place within 12 months-of a valid election. We are concerned only with the other two elements. The Board assumed that the Charging1 Parties were a labor organization and confined its consideration to whether the picketing had an organizational or recognitional object. An assumption is not a finding. We must determine if the admitted facts establish the existence of a labor organization. Section 2(5), 29 U.S.C. § 152(5), defines “labor organization” thus: “ * * * any organization of any kind, or any agency or employee represtation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” Although the Charging Parties did not have the organic structure of a typical labor union, they were a group which acted in unison to obtain mutual objectives by combined efforts. They existed and acted to deal with the Company in regard to labor disputes, rates of pay, and working conditions. This brings them within the statutory definition of labor organization. The controlling issue is whether the Charging Parties picketed to force the Company “to recognize or bargain” with them. Here it should be noted that in National Labor Relations Board v. Cabot Carbon Co., 360 U.S. 203, 211, 79 S.Ct. 1015, 3 L.Ed.2d 1175, the Supreme Court said that the term “dealing with” as used in the definition section was not synonymous with the more limited term “bargaining with.” Hence, the conclusion that the Charging Parties were a labor organization does not of itself establish a violation of § 8(b) (7) where the reference is to “recognize or bargain with.” The Board found that the strike was not for organizational purposes; that the Packinghouse Workers’ business agent “was on the scene” because of “his experience in such matters”; and that the picketing was a “spontaneous protest against Respondent’s broken promises.” It also found that “while the strikers indicated a desire for ‘something in writing’ we do not view this as an attempt to establish a continuing relationship, but only as an attempt to bind the Respondent to its promises.” These findings are based on substantial evidence or reasonable references therefrom and, considering the record in its entirety, we must accept them. Although the Board made no specific finding on the point, the record conclusively shows that the picketers wanted “something in writing” to cover wages and conditions of employment. The examiner specifically found: “It appears from the testimony of several of the witnesses that the strikers refused to return to work, even after the raise was offered, because they wanted other terms and conditions of employment changed and ‘something in writing’ setting forth the changes.” The issue is thus narrowed to a determination of whether, as a matter of law, a violation of § 8(b) (7) occurs when the object of recognition and bargaining does not encompass an effort to establish a “continuing relationship”. The statute proscribes picketing with “an object” to force an employer “to recognize or bargain.” In our opinion this means that a violation occurs if any object of the picketing is to force recognition or bargaining. Indeed, the Board has so held. The picketing here was not only to protest an employer’s unfair labor practices and broken promises but also to come to terms on wages and working conditions and to obtain the recognition of those terms in writing. Although the object may not have been to “negotiate an overall formal collective-bargaining agreement” as the Board found, the picketing had the purpose of forcing the Company to agree in writing on the matters in dispute. In our opinion, this is an effort to force bargaining within the purview of the statute. This result may not be avoided by a finding of no attempt to establish a “continuing relationship.” The statute refers to bargaining- — -not to bargaining for any period of time. The Board would write into the statute a condition that is not included within its specific language. Such an effort to restrict the statute is not helped by the argument that the picketing provisions must be construed “broadly and concomitantly,” with the provisions of § 7 relating to collective bargaining and the provisions of § 13 assuring the right to strike. The point is that Congress has declared certain types of picketing to be unfair labor practices and we are concerned with the single issue of whether the picketing here is forbidden. The Charging Parties had the right to strike but they did not have the right to picket in violation of the Act. We are convinced that their actions were prohibited by § 8(b) (7) (B). In our former opinion in this case, we held that if the Charging Parties violated the Act by forbidden picketing, they were not entitled to invoke the Act to compel reinstatement. We adhere to that decision. We now hold that unlawful picketing occurred. Accordingly, enforcement is denied and the order of the Board is set aside and held for naught. . National Packing Co., Inc., 158 N.L.R.B. No. 142. . Act of Sept. 14, 1959, Pub.L. 86-257, 73 Stat. 519, 542-543. . The material provisions of § 8(b) (7) (B), 29 U.S.C. § 158(b) (7) (B), are: “It shall be an unfair labor practice for a labor organization or its agents — (7) to picket * * * any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, * * * (B) where within the preceding twelve months a valid election under section § 9(c) of this title has been conducted * * . See Centralia Building and Construction Trades Council v. National Labor Relations Board, 124 U.S.App.D.C. 212, 363 F.2d 699, 701. . In Warehouse and Mail Order Employees Union, Local 743, 144 N.L.R.B. 888, 892, it was held: “Assuming arguendo that one purpose of the picketing was to protest alleged company unfair labor practices, this cannot serve as a defense since it need be established only that an object of the picketing be one proscribed by the Act.” The decision in Hoisting and Portable Engineers Local Union 101, 140 N.L.R.B. 1175, 1178, says: “ * * *• we nevertheless hold that forcing or requiring an employer to recognize and bargain with a labor organization as the representative of his employees is an object within the scope of Section 8(b) (7), even though exclusive recognition for all employees in an appropriate unit is not also being sought.” . 352 F.2d 482, 485. 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_caseorigin	109	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. BELL, WARDEN v. CONE No. 01-400. Argued March 25, 2002 — Decided May 28, 2002 Michael E. Moore, Solicitor General of Tennessee, argued the cause for petitioner. With him on the briefs were Gordon W. Smith, Associate Solicitor General, and Jennifer L. Smith, Assistant Attorney General. Lisa Schiavo Blatt argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, and Deputy Solicitor General Dreeben. Robert L. Hutton, by appointment of the Court, 534 U. S. 1111, argued the cause for respondent. Briefs of amicus curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, David M. Gormley, State Solicitor, and Matthew Heilman, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Bill Lock-yer of California, M. Jane Brady of Delaware, Robert A Butterworth of Florida, Steve Carter of Indiana, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, David Samson of New Jersey, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Mark Barnett of South Dakota, John Cornyn of Texas, Mark L. Shurtleff of Utah, Iver A. Stridiron of the Virgin Islands, Jerry Kilgore of Virginia, Christine O. Gregoire of Washington, and Hoke MacMillan of Wyoming; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger. Walter Dellinger, Pamela Harris, and David M. Porter filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance. Larry W Yackle and Steven R. Shapiro filed a brief for the American Civil Liberties Union et al. as amicus curiae. Chief Justice Rehnquist delivered the opinion of the Court. The Tennessee Court of Appeals rejected respondent’s claim that his counsel rendered ineffective assistance during his sentencing hearing under principles announced in Strickland v. Washington, 466 U. S. 668 (1984). The Court of Appeals for the Sixth Circuit concluded that United States v. Cronic, 466 U. S. 648 (1984), should have controlled the state court’s analysis and granted him a conditional writ of habeas corpus. We hold that respondent’s claim was governed by Strickland, and that the state court’s decision neither was “contrary to,” nor involved “an unreasonable application of, clearly established Federal law” under the provisions of 28 U. S. C. § 2254(d)(1). I In 1982, respondent was convicted of, and sentenced to death for, the murder of an elderly couple in Memphis, Tennessee. The killings culminated a 2-day crime rampage that began when respondent robbed a Memphis jewelry store of approximately $112,000 in merchandise on a Saturday in August 1980. Shortly after the 12:45 p.m. robbery, a police officer in an unmarked vehicle spotted respondent driving at a normal speed and began to follow him. After a few blocks, respondent accelerated, prompting a high-speed chase through midtown Memphis and into a residential neighborhood where respondent abandoned his vehicle. Attempting to flee, respondent shot an officer who tried to apprehend him, shot a citizen who confronted him, and, at gunpoint, demanded that another hand over his car keys. As a police helicopter hovered overhead, respondent tried to shoot the fleeing car owner, but was frustrated because his gun was out of ammunition. Throughout the afternoon and into the next morning, respondent managed to elude detection as police combed the surrounding area. In the meantime, officers inventorying his ear found an array of illegal and prescription drugs, the stolen merchandise, and more than $2,400 in cash. Respondent reappeared early Sunday morning when he drew a gun on an elderly resident who refused to let him in to use her telephone. Later that afternoon, respondent broke into the home of Shipley and Cleopatra Todd, aged 93 and 79 years old, and killed them by repeatedly beating them about the head with a blunt instrument. He moved their bodies so that they would not be visible from the front and rear doors and ransacked the first floor of their home. After shaving his beard, respondent traveled to Florida. He was arrested there for robbing a drugstore in Pompano Beach. He admitted killing the Todds and shooting the police officer. A Tennessee grand jury charged respondent with two counts of first-degree murder in the perpetration of a burglary in connection with the Todds’ deaths, three counts of assault with intent to murder in connection with the shootings and attempted shooting of the car owner, and one count of robbery with a deadly weapon for the jewelry store theft. At a jury trial in the Criminal Court of Shelby County, the prosecution adduced overwhelming physical and testimonial evidence showing that respondent perpetrated the crimes and that he killed the Todds in a brutal and callous fashion. The defense conceded that respondent committed most of the acts in question, but sought to prove that he was not guilty by reason of insanity. A clinical psychologist testified that respondent suffered from substance abuse and posttrau-matic stress disorders related to his military service in Vietnam. A neuropharmacologist recounted at length respondent’s history of illicit drug use, which began after he joined the Army and escalated to the point where he was daily consuming “rather horrific” quantities. Tr. 1722-1763. That drug use, according to the expert, caused chronic amphetamine psychosis, hallucinations, and ongoing paranoia, which affected respondent’s mental capacity and ability to obey the law. Defense counsel also called respondent’s mother, who spoke of her son coming back from Vietnam in 1969 a changed person, his honorable discharge from service, his graduation with honors from college, and the deaths of his father and fiancée while he was in prison from 1972-1979 for robbery. Although respondent did not take the stand, defense counsel was able to elicit through other testimony that he had expressed remorse for the killings. Rejecting his insanity defense, the jury found him guilty on all charges. Punishment for the first-degree murder counts was fixed in a separate sentencing hearing that took place the next day and lasted about three hours. Under then-applicable Tennessee law, a death sentence was required if the jury found unanimously that the State proved beyond a reasonable doubt the existence of at least one statutory aggravating circumstance that was not outweighed by any mitigating circumstance. Tenn. Code Ann. § 39-2-203 (1982). In making these determinations, the jury could (and was instructed that it could) consider evidence from both the guilt and punishment phases. Ibid.; Tr. 2219. During its opening statement, the State said .it would prove four aggravating factors: that (1) respondent had previously been convicted of one or more felonies involving the use or threat of violence to a person; (2) he knowingly created a great risk of death to two or more persons other than the victim during the act of murder; (3) the murder was especially heinous, atrocious, or cruel; and (4) the murder was committed for the purpose of avoiding lawful arrest. In his opening statement, defense counsel called the jury’s attention to the mitigating evidence already before them. He suggested that respondent was under the influence of extreme mental disturbance or duress, that he was an addict whose drug and other problems stemmed from the stress of his military service, and that he felt remorse. Counsel urged the jury that there was a good reason for preserving his client’s life if one looked at “the whole man.” App. 26. He asked for mercy, calling it a blessing that would raise them above the State to the level of God. The prosecution then called a records custodian and fingerprint examiner to establish that respondent had three armed robbery convictions and two officers who said they tried unsuccessfully to arrest respondent for armed robbery after the jewelry store heist. Through cross-examination of the records custodian, respondent’s attorney brought out that his client had béen awarded the Bronze Star in Vietnam. After defense counsel successfully objected to the State’s proffer of photos of the Todds’ decomposing bodies, both sides rested. The junior prosecuting attorney on the case gave what the state courts described as a “low-key” closing. Defense counsel waived final argument, preventing the lead prosecutor, who by all accounts was an extremely effective advocate, from arguing in rebuttal. The jury found in both murder cases four aggravating factors and no mitigating circumstances substantial enough to outweigh them. The Tennessee Supreme Court affirmed respondent’s convictions and sentence on appeal, State v. Cone, 665 S. W. 2d 87, and we denied certiorari, 467 U. S. 1210 (1984). Respondent then petitioned for state postconviction relief, contending that his counsel rendered ineffective assistance during the sentencing phase by failing to present mitigating evidence and by waiving final argument. After a hearing in which respondent’s trial counsel testified, a division of the Tennessee Criminal Court rejected this contention. The Tennessee Court of Criminal Appeals affirmed. Cone v. State, 747 S. W. 2d 353 (1987). The appellate court reviewed counsel’s explanations for his decisions concerning the calling of witnesses and the waiving of final argument. Id., at 356-357. Describing counsel’s representation as “very conscientious,” the court concluded that his performance was within the permissible range of competency, citing Baxter v. Rose, 523 S. W. 2d 930 (Tenn. 1975), a decision the Tennessee Supreme Court deems to have announced the same attorney performance standard as Strickland v. Washington, 466 U. S. 668 (1984). See, e. g., State v. Burns, 6 S. W. 3d 453, 461 (1999). The court also expressed its view that respondent received the death penalty based on the law and facts, not on the shortcomings of counsel. 747 S. W. 2d, at 357-358. The Tennessee Supreme Court denied respondent permission to appeal, and we denied further review, Cone v. Tennessee, 488 U. S. 871 (1988). In 1997, after his second application for state postconviction relief was dismissed, respondent sought a federal writ of habeas corpus under 28 U. S. C. § 2254 as amended by the Antiterrorism and Effective Death Penalty Act of 1996. His petition alleged numerous grounds for relief including ineffective assistance at the sentencing phase. The District Court ruled that respondent did not meet § 2254(d)’s requirements and denied the petition. The Court of Appeals affirmed the refusal to issue a writ with respect to respondent’s conviction, but reversed with respect to his sentence. 243 F. 3d 961, 979 (CA6 2001). It held that respondent suffered a Sixth Amendment violation for which prejudice should be presumed under United States v. Cronic, 466 U. S. 648 (1984), because his counsel, by not asking for mercy after the prosecutor’s final argument, did not subject the State’s call for the death penalty to meaningful adversarial testing. 243 F. 3d, at 979. The state court’s adjudication of respondent’s Sixth Amendment claim, in the Court of Appeals’ analysis, was therefore an unreasonable application of the clearly established law announced in Strickland. 243 F. 3d, at 979. We granted certiorari, 534 U. S. 1064 (2001), and now reverse the Court of Appeals. II The Antiterrorism and Effective Death Penalty Act of 1996 modified a federal habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas “retrials” and to ensure that state-court convictions are given effect to the extent possible under law. See Williams v. Taylor, 529 U. S. 362, 403-404 (2000). To these ends, § 2254(d)(1) provides: “(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” As we stated in Williams, § 2254(d)(l)’s “contrary to” and “unreasonable application” clauses have independent meaning. 529 U. S., at 404-405. A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. Id., at 405-406. The court may grant relief under the “unreasonable application” clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. Id., at 407-408. The focus of the latter inquiry is on whether the state court’s application of clearly established federal law is objectively unreasonable, and we stressed in Williams that an unreasonable application is different from an incorrect one. Id., at 409-410. See also id., at 411 (a federal habeas court may not issue a writ under the unreasonable application clause “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly”). Petitioner contends that the Court of Appeals exceeded its statutory authority to grant relief under § 2254(d)(1) because the decision of the Tennessee courts was neither contrary to nor an unreasonable application of the clearly established law of Strickland. Respondent counters that he is entitled to relief under § 2254(d)(l)’s “contrary to” clause because the state court applied the wrong legal rule. In his view, Cronic, not Strickland, governs the analysis of his claim that his counsel rendered ineffective assistance at the sentencing hearing. We address this issue first. In Strickland, which was decided the same day as Cronic, we announced a two-part test for evaluating claims that a defendant’s counsel, performed so incompetently in his or her representation of a defendant that the defendant’s sentence or conviction should be reversed. We reasoned that there would be a sufficient indication that counsel’s assistance was defective enough to undermine confidence in a proceeding’s result if the defendant proved two things: first, that counsel’s “representation fell below an objective standard of reasonableness,” 466 U. S., at 688; and second, that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id., at 694. Without proof of both deficient performance and prejudice to the defense, we concluded, it could not be said that the sentence or conviction “resulted from a breakdown in the adversary process that rendered the result of the proceeding unreliable,” id., at 687, and the sentence or conviction should stand. In Cronic, we considered whether the Court of Appeals was correct in reversing a defendant’s conviction under the Sixth Amendment without inquiring into counsel’s actual performance or requiring the defendant to show the effect it had on the trial. 466 U. S., at 650,658. We determined that the court had erred and remanded to allow the claim to be considered under Strickland’s test. 466 U. S., at 666-667, and n. 41. In the course of deciding this question, we identified three situations implicating the right to counsel that involved circumstances “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id., at 658-659. First and “[mjost obvious” was the “complete denial of counsel.” Id., at 659. A trial would be presumptively unfair, we said, where the accused is denied the presence of counsel at “a critical stage,” id., at 659,662, a phrase we used in Hamilton v. Alabama, 368 U. S. 52, 54 (1961), and White v. Maryland, 373 U. S. 59, 60 (1963) (per curiam), to denote a step of a criminal proceeding, such as arraignment, that held significant consequences for the accused. Second, we posited that a similar presumption was warranted if “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Cronic, supra, at 659. Finally, we said that in cases like Powell v. Alabama, 287 U. S. 45 (1932), where counsel is called upon to render assistance under circumstances where competent counsel very likely could not, the defendant need not show that the proceedings were affected. Cronic, supra, at 659-662. Respondent argues that his claim fits within the second exception identified in Cronic because his counsel failed to “mount some case for life” after the prosecution introduced evidence in the sentencing hearing and gave a closing statement. Brief for Respondent 26. We disagree. When we spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s failure must be complete. We said “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Cronic, supra, at 659 (emphasis added). Here, respondent’s argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points. For purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree but of kind. The aspects of counsel’s performance challenged by respondent — the failure to adduce mitigating evidence and the waiver of closing argument — are plainly of the same ilk as other specific attorney errors we have held subject to Strick land’s performance and prejudice components. In Darden v. Wainwright, 477 U. S. 168, 184 (1986), for example, we evaluated under Strickland a claim that counsel was ineffective for failing to put on any mitigating evidence at a capital sentencing hearing. In Burger v. Kemp, 483 U. S. 776, 788 (1987), we did the same when presented with a challenge to counsel’s decision at a capital sentencing hearing not to offer any mitigating evidence at all. We hold, therefore, that the state court correctly identified the principles announced in Strickland as those governing the analysis of respondent’s claim. Consequently, we find no merit in respondent’s contention that the state court’s adjudication was contrary to our clearly established law. Cf. Williams, 529 U. S., at 405 (“The word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed’ ” (quoting Webster’s Third New International Dictionary 495 (1976))). Ill The remaining issue, then, is whether respondent can obtain relief on the ground that the state court’s adjudication of his claim involved an “unreasonable application” of Strickland. In Strickland we said that “[jjudicial scrutiny of a counsel’s performance must be highly deferential” and that “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” 466 U. S., at 689. Thus, even when a court is presented with an ineffective-assistance claim not subject to § 2254(d)(1) deference, a defendant must overcome the “presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Ibid, (quoting Michel v. Louisiana, 350 U. S. 91, 101 (1955)). For respondent to succeed, however, he must do more than show that he would have satisfied Strickland’s test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal ha-beas court that, in its independent judgment, the state-court decision applied Strickland incorrectly.. See Williams, supra, at 411. Rather, he must show that the Tennessee Court of Appeals applied Strickland to the facts of his case in an objectively unreasonable manner. This, we conclude, he cannot do. Respondent’s counsel was faced with the formidable task of defending a client who had committed a horribly brutal and senseless crime against two elderly persons in their home. He had just the day before shot a police officer and an unarmed civilian, attempted to shoot another person, and committed a robbery. The State had near conclusive proof of guilt on the murder charges as well as extensive evidence demonstrating the cruelty of the killings. Making the situation more onerous were the facts that respondent, despite his high intelligence and relatively normal upbringing, had turned into a drug addict and had a history of robbery convictions. Because the defense’s theory at the guilt phase 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. 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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_origin	D	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. In re James E. COMER and Martha E. Comer, his wife, Debtors. Lefferage B. MOXLEY a/k/a Pete Moxley, and Anna Pauline Moxley, Appellees, v. James E. COMER and Martha E. Comer, Appellants. No. 82-3469. United States Court of Appeals, Third Circuit. Argued May 10, 1983. Decided Aug. 26, 1983. William C. Anderson (argued), Anderson, Converse & Fenniek, York, Pa., for appellants. Gilbert G. Malone (argued), Malone & Neubaum, York, Pa., for appellees. Before ADAMS and WEIS, Circuit Judges, and DEBEVOISE, District Judge . The Honorable Dickinson R. Debevoise, United States District Judge for the District of New Jersey, sitting by designation. OPINION OF THE COURT WEIS, Circuit Judge. In this case we conclude that we have jurisdiction to hear an appeal from a district court order that lifted the automatic stay provided by the Bankruptcy Reform Act against a lien enforcement action. The district court found that the bankruptcy judge had erred in allocating a series of pre-bankruptcy payments by debtors to mortgages rather than to unsecured obligations. We agree with the district court’s reasoning but direct a remand to the bankruptcy judge for findings of fact on one transaction that might affect the creditors’ security and the validity of the stay modification. Debtors James and Martha Comer were in the residential home construction business when they filed a Chapter 11 bankruptcy petition on February 13, 1981. Two weeks later, creditors Lefferage and Anna Pauline Moxley sought modification of the automatic stay imposed under section 362 of the Bankruptcy Code so they could foreclose on several mortgages they held on the debtors’ real estate. After a hearing, the bankruptcy judge denied the application in an order entered on March 30, 1982, and creditors appealed the decision to the district court. In an opinion dated September 28, 1982, the district court determined that the bankruptcy judge’s findings were clearly erroneous, lifted the stay as to one lot, and remanded the case for reconsideration. Debtors secured a significant amount of the financing for their home building from creditors who are appellees here. Debtors owned three parcels of land in York County, Pennsylvania and creditors held a mortgage on each one as security for construction loans. They also held promissory notes evidencing unsecured sums advanced for the financing of structures on two of the parcels. In addition, when debtors were unable to pay the interest on the three mortgages, creditors took a note for the amount due and entered judgment on it in November 1979. For purposes of construction and resale, each parcel was subdivided into three lots. When construction on a lot was complete and it was sold, debtors paid a portion of the sale proceeds to creditors, who then released that particular lot from the parcel-wide mortgage. In the exchange, creditors also returned promissory notes evincing unsecured advances for construction on the parcel containing the lot being sold. At the time the Chapter 11 petition was filed, two lots in parcel 1, one in parcel 2, and one in parcel 3 remained unsold. The situation in parcel 2 illustrates the problem presented to the bankruptcy court by the request to modify the automatic stay. The mortgage on that parcel was $90,000 and unsecured loans totaled $48,000. When lot 31 was sold in September 1978, creditors received $40,000. Lot 30 was sold in November 1979 and creditors were paid $54,223. Thus, creditors received a total of $94,223 from the sale of the two lots. They contended that they first applied this amount against unsecured loans and the remainder to the mortgage. According to the creditors’ contention, therefore, the unsecured debt on parcel 2 had been paid in full and an amount in excess of the value of lot 32 was owed on the mortgage obligation, including the remaining principal of $43,-777, accrued interest, and attorney’s commission. The bankruptcy judge, however, took a different view. He concluded that in parcel 2, for example, the total of $94,223 should be applied first to the mortgage of $90,000, thus extinguishing it. The remaining $4,223 was applied to the unsecured debt. A similar conclusion was reached as to parcel 3, resulting in the satisfaction of the mortgage and some reduction in the unsecured indebtedness. The bankruptcy judge reasoned that although the parties had no express written agreement on the allocation of payments, there was an implied understanding to apply the funds against the secured debt. He drew that inference from the practice of releasing the lot being sold from the mortgage. In addition, the bankruptcy court concluded that since a trustee has the status of a hypothetical lien-creditor under section 544 of the Bankruptcy Code, he could demand allocation of the payments “in the way most beneficial to him to the extent that the parties had not previously applied the proceeds.” In this instance, application against the secured debt would be the most beneficial arrangement for a lien-creditor. Creditors received $22,000 from the sale of lot 28. They contended that, unlike the other transactions, they specifically requested allocation of these funds to the judgment note for interest due on the mortgage. However, the bankruptcy judge concluded that in this instance also creditors had allocated the money to the mortgage on parcel 1. The net effect of the findings by the bankruptcy court was that payments were found to be allocated to the secured debt, and as a result, the bulk of the secured debt was viewed as extinguished. As a consequence, debtors had equity in the property and the creditors’ remaining secured interest was adequately protected. Accordingly, the bankruptcy court concluded that the statutory requirements for lifting the automatic stay were not satisfied. In contrast, the district court found that the creditors’ conduct demonstrated allocation of the proceeds to the unsecured debt and held that the bankruptcy judge’s findings on this point were clearly erroneous. The district judge pointed to the uncontroverted evidence that creditors had returned the promissory notes covering the unsecured advances but had never satisfied any of the mortgages. These facts convinced the district judge that payment had first been made against the unsecured debt and only the remainder had been applied to the mortgages. The district court also concluded that debtors had acquiesced in the crediting of $22,000 from the sale of lot 28 to the amount due on the judgment note for mortgage interest. Finding little or no equity in lot 32, and that the lot was not necessary for reorganization, the court lifted the stay on it. As to the other lots covered by the stay, the case was remanded for “reconsideration not inconsistent with this decision.” I We first consider whether this appeal is properly before us. Because the case arises under the Bankruptcy Reform Act of 1978, we examine that statute for a jurisdictional basis. Although portions of the Act do not go into effect until April 1, 1984, the courts are vested during the transitional phase with the appellate authority they will have after that date. In re Marin Motor Oil, Inc., 689 F.2d 445, 447-48 (3d Cir.1982), cert. denied,-U.S.-, 103 S.Ct. 1196, 75 L.Ed.2d 440 (1983); Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 100 n. 2 (3d Cir.1981); see Pub.L. 95-598, title IV, § 405(c)(2), 92 Stat. 2685 (transitional provision of Act vesting courts with appellate authority). But see In re Cantwell, 639 F.2d 1050,1053, n. 3 (3d Cir.1981) (dictum). Because of our disposition of the jurisdietional issues in this case, we need not consider whether jurisdiction in the court of appeals also lies under 28 U.S.C. §§ 1291 and 1292, and we need not decide whether the Supreme Court’s decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), should be applied retroactively. Cf. Coastal Steel Corp. v. Tilghman Wheelabrator, Ltd., 709 F.2d 190 (3d Cir.1983) (using sections 1291 and 1292 as jurisdictional bases and applying interim reference rule retroactively). Section 1293(b) of Title 28 provides that in bankruptcy cases the court of appeals “shall have jurisdiction of an appeal from a final judgment, order or decree of ... a District Court.” Although this provision incorporates a finality requirement, “it is not clear that this requirement must in all circumstances be given the same construction that it would have under [28 U.S.C. §] 1291.” Marin Motor Oil, 689 F.2d at 448. Considerations unique to bankruptcy appeals have, in the past, led us to conclude that “we need be somewhat less concerned about the dangers of interpreting finality in appeals under section 1293(b) slightly more broadly than in appeals under section 1291.” Id. at 449. See also In re Saco Local Development Corp., 711 F.2d 441 (1st Cir.1983). In Universal Minerals, Inc. v. C.A. Hughes & Co., this court treated a judgment as final under section 1293 because “nothing remained for the district court to do” and “reversal of its judgment ‘would be preclusive of any further litigation on the relevant cause of action.’ ” 669 F.2d at 101 (quoting Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 482-483, 95 S.Ct. 1029, 1039-1040, 43 L.Ed.2d 328 (1975)). We also referred to Radio Station WOW v. Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092 (1945), which held a judgment was reviewable when it directed immediate delivery of physical property because that act was disassociated from and unaffected by a provision in the same order remanding for an accounting. Thus, in our determination of whether a district court’s order is final for purposes of section 1293(b), Universal Minerals suggests a pragmatic approach that looks at the effect of the district court’s ruling. See also Marin Motor Oil, 689 F.2d at 448-49. In the case at hand, the district court’s order lifting the stay as to lot 32 is final in the sense that it completes litigation on the question and subjects the property to a foreclosure action in state court. Nothing more need be done by the district court or the bankruptcy court on the matter of the automatic stay, and the order of the district court ends this particular controversy between debtors and creditors. Moreover, testimony at the hearing indicates that foreclosure on the lots in question may require that the proceeding be converted from a Chapter 11 reorganization to a Chapter 7 liquidation. The matter here is not one that can await final resolution of the bankruptcy proceedings. It seems clear, therefore, that although the bankruptcy case will continue, the district court’s order is final in the sense that this particular controversy will not return to the court and effective review of the order lifting the stay cannot await final disposition of the case in the bankruptcy court. This situation is quite different from Growth Realty Cos. v. Regency Woods Apartments (In re Regency Woods Apartments, Ltd.), 686 F.2d 899 (11th Cir.1982), a decision dismissing an appeal from a district court order modifying an automatic stay order of the bankruptcy court. In that case, the district court remanded to the bankruptcy court, ordering both an accounting of the debtor’s use of cash collateral, and a lifting of the stay if the debtor could not compensate the creditors for the loss of their collateral. The court of appeals reasoned that since the order lifting the stay was contingent, no important interest as yet required the decision to be considered final. Here, by contrast, the substance of the stay proceedings as to lot 32 is complete in both the district and bankruptcy courts and important rights of the parties have been determined. It must be understood, however, that the question of appealability is not resolved by the determination that a particular matter will not require further adjudication in the district court. Universal Minerals did not intend that factor to be the sole consideration. For example, a purely interlocutory order of the bankruptcy court, such as a discovery order, might be entertained by the district court as an interlocutory appeal, “by leave” of that court under 28 U.S.C. § 1334(b). See International Horizons, Inc. v. Committee of Unsecured Creditors (In re International Horizons, Inc.), 689 F.2d 996, 1000 (11th Cir.1982). The district court’s appellate decision would be final in the sense that its work is finished and, in all likelihood, the court would not be called upon to resolve that issue again. Nevertheless, that order would not be final so as to permit review by the court of appeals. In substance, the matter would be interlocutory and one that we would not entertain under section 1293. See id. at 1000-01; Bello Broadcasting v. Rubin (In re Rubin), 693 F.2d 73, 76 (9th Cir.1982). See also Fondiller v. Robertson (In re Fondiller), 707 F.2d 441, 441 n. 1 (9th Cir.1983). All that would be resolved in the example above is a discovery matter, traditionally regarded as interlocutory because the merits of the underlying proceeding have yet to be decided. See In re W.F. Breuss, Inc., 586 F.2d 983, 985-86 (3d Cir.1978); Borden Co. v. Sylk, 410 F.2d 843, 845-46 (3d Cir.1969). In short, even if the disposition by a district court is final as to an issue, the substance of the controversy might remain interlocutory and would not be appealable to this court. If, however, the bankruptcy court's order is final, it puts a different complexion on the case. As we observed in Marin Motor Oil Corp., “when the bankruptcy court issues what is indisputably a final order, and the district court issues an order affirming or reversing, the district court’s order is also a final order for purposes of § 1293(b).” 689 F.2d at 449. This test also supports the conclusion that the order at issue here is final and appealable. We note that appeals from final orders of the bankruptcy court may be taken of right to the district court under section 1334(a). Appeals of interlocutory orders are reviewed only by leave of the district court under section 1334(b). The parties did not ask for leave to appeal to the district court nor was such leave granted sua sponte. See Interim Bankruptcy Rules, Rule 8004(a) and (d). We may assume, therefore, that the district court and the parties treated the appeal as taken under section 1334(a) from a final order of the bankruptcy court. That circumstance, however, does not end the inquiry into whether the bankruptcy court order in fact qualified as final under subsection (a). Section 1334 does not squarely address the issue of appeals from orders granting or denying a request to lift the automatic stay — a matter of substantial importance in Chapter 11 proceedings. Moreover, as the majority opinion in Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d at 200 n. 7, points out, resolution of the differing Senate and House bankruptcy bills by the floor managers resulted in some ambiguity in the appellate jurisdiction intended by Congress in its drafting of section 1293. COLLIER ON BANKRUPTCY reads the legislative history as indicating that automatic stay orders should be treated for purposes of appeal as interlocutory. 1 COLLIER ON BANKRUPTCY ¶ 3.03[7][e] (15th ed. 1983). COLLIER correctly states that the original House bill provided for direct appeals of all bankruptcy court orders to the court of appeals and that 28 U.S.C. § 1292(a)(1) was to be amended to allow for the appeal of certain interlocutory orders. Id. at 3-312; see H.R. 8200, 95th Cong., 1st Sess. §§ 237, 238 (1977). The treatise then observes that the House report analogized the three-stage stay procedure to the typical civil proceeding that ultimately results in a permanent injunction. “The stay has been likened to a temporary restraining order; the preliminary hearing ... to a hearing on a preliminary injunction, and the final hearing and order to a permanent injunction.” 1 COLLIER ON BANKRUPTCY ¶ 3.03[7][e] at 3-312 (citing H.R.Rep. No. 595, 95th Cong., 1st Sess. 344 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6300). Based on this analogy and the failure of the compromise bill to adopt the House amendment to section 1292, the commentary seems to conclude that injunctions, and thus stay orders, are not final orders and therefore require leave to appeal to the district court. COLLIER appears to be in error on this point because section 1292(a), by its terms, applies only to interlocutory orders. It follows that if a permanent injunction is final, an appeal can be had without resort to section 1292(a). The Court of Appeals for the Second Circuit, taking issue with COLLIER’S conclusion, addressed the question in the context of an automatic stay. The court treated the denial of relief from the stay as a permanent injunction that was appealable under section 1334(a). “We cannot agree [with COLLIER’S analysis]. An order granting a permanent injunction is a final order. See Vicksburg v. Henson, 231 U.S. 259, 266-67, 34 S.Ct. 95, 97-98, 58 L.Ed. 209 (1913). Congress manifestly intended to treat final denial of relief from the automatic stay as a final order.” Di Pierro v. Taddeo (In re Taddeo), 685 F.2d 24, 26 n. 4 (2d Cir.1982); see also Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306 (11th Cir.1982). We caution that in some instances a permanent injunction that did not dispose of all the matters at issue might not be final under section 1291. Under the facts of this case, however, we agree with the courts in Taddeo and Borg-Warner that a bankruptcy judge’s denial of relief from the automatic stay is a final order appealable under section 1334(a). See also Farmers & Merchants Bank & Trust v. Trail West, Inc., 28 B.R. 389, 391-92 (D.S.D.1983). The bankruptcy judge’s order, resting on an erroneous finding of past events, became the law of the case in that court and resulted in a diminution of the creditors’ secured debt. Creditors were precluded from foreclosing on their mortgages and the effect of the order, therefore, was to make a reorganization possible at the expense of the creditors’ interests. Moreover, as we noted in our discussion of section 1293, review which sufficiently protects the party’s rights cannot be had at the close of the bankruptcy proceedings. In the context of appealability in the bankruptcy area, the order in this case may appropriately be considered final for purposes of section 1334(a). Since the order of the district court is also final, this court has jurisdiction to consider the appeal. II We turn then to the merits. Our first matter for consideration is the appropriate standard of review. As with so much of the Bankruptcy Reform Act after Northern Pipeline, uncertainty is the norm. In response to the Supreme Court’s decision holding the Article III jurisdiction of the bankruptcy court unconstitutional, the district court for the Middle District of Pennsylvania adopted the interim rule recommended by the Judicial Conference of the United States, effective December 24, 1982, the date the Supreme Court’s stay in Northern Pipeline expired. That rule provides that in an appeal from a bankruptcy judge’s order, “the district judge need give no deference to the findings of the bankruptcy judge.” Before adoption of this rule, however, review by the district judge was governed by the clearly erroneous test. See Bankruptcy Rule 810. The case at hand was reviewed by the district court before adoption of the interim rule and the judge applied the clearly erroneous standard. Since the parties and the district court proceeded on the assumption that the clearly erroneous standard applied, we do so also. But cf. Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190 (3d Cir.1983) (interim rule may be applied retroactively in “related” proceedings to establish jurisdiction under sections 1291 and 1292). There appears to be little dispute between the parties that the applicable law on the substantive issue of allocation was stated by the Superior Court of Pennsylvania in Page v. Wilson, 150 Pa.Super. 427, 433, 28 A.2d 706, 709 (1942), and later quoted with approval by the Pennsylvania Supreme Court in Woods Trust, 350 Pa. 290, 294, 38 A.2d 28, 30 (1944). The rule is stated as: “The debtor has the right to make the application in the first instance, and failing to exercise it, the same right devolves upon the creditor. When no application is made by either party, the law determines how the payments are to be applied in accordance with equitable rules and principles .... [I]t will apply the payment, when not appropriated by either party, in the way most beneficial to the creditor, that is, to the debt least secured, unless to the prejudice of a surety.” See also Toll-Barkan Co. v. Toll, 193 Pa.Super. 221, 225, 164 A.2d 36, 38 (1960); RESTATEMENT (SECOND) OF CONTRACTS §§258, 259, 260(1981). The bankruptcy court gathered that there was an agreement to apply the payments first to the mortgage debt because each lot sold was released from the mortgage lien in exchange for a substantial portion of the sale proceeds. The district court judge, however, determined that this conclusion was clearly erroneous, and we agree. As the district judge observed, the uncontroverted facts establish a course of conduct demonstrating that the sale proceeds were first applied by creditors to the unsecured debts. This was shown by the creditors’ return of the unsecured notes to debtors when a specific lot was sold. The unsecured debt represented by the notes was thus extinguished by the return of the notes. The only conduct of creditors contrary to this conclusion applies to lot 30. Upon receiving the sale proceeds, Mrs. Moxley gave the debtors a receipt stating: “Received ... on mortgage.” (Emphasis added.) However, neither the bankruptcy court nor the district court even mentioned the wording of the receipt. Moreover, any inference from it is overcome by the return of the promissory notes and creditors’ consistent course of conduct. Clearly, debtors could not have assumed that, in exchange for approximately $54,000, creditors would reduce the mortgage by that amount and also extinguish a substantial amount of the unsecured debt. The release of the mortgage lien on a lot being sold did not have the significance attributed to it by the bankruptcy judge. As the district court noted, release of one lot from the lien covering several lots did not work a satisfaction of the mortgage. The lien was still effective as to the remaining lots and the mortgage remained valid although it covered less property. As a practical matter, release of the lot being sold was essential in order to convey clear title. The failure to satisfy the mortgage of record or return the mortgage documents to debtors is strong evidence of the creditors’ application of the proceeds to the unsecured debt and is completely consistent with the return of the promissory notes. The district court’s conclusion that the bankruptcy judge’s decision was erroneous finds ample support in the record insofar as it speaks to the application of the payments between secured and unsecured debts. Indeed, if there were no indication that creditors had taken steps to show their intention, the Page rules of construction would be applicable. The preference given for the benefit of the creditor by applying the payments “to the debt least secured” would come into play. We reject the debtors’ contention that this preference, as well as the creditors’ freedom of application, is limited in this case by a rule requiring that money “from a particular fund .. . must be applied ... in relief of the source from which the fund arose.” Pardee v. Markle, 111 Pa. 548, 555, 5 A. 36,40 (1886). Debtors urge that under this rule proceeds derived from the sale of land must be applied to the mortgage debt of that land, as opposed to an unrelated indebtedness. That argument is unavailing here because both the secured and unsecured funds were used to finance construction on the lots at issue. See Ellingsen v. Western Farmers Association, 12 Wash. App. 423, 529 P.2d 1163, 1167 (1974). The bankruptcy court’s alternative reason for its decision was that the debtor in possession, having the rights of a hypothetical lien-creditor under section 544, could require an appropriation of the proceeds that takes into account the interests of a lien-creditor. Here, such a creditor would be benefited by an application of the proceeds to the secured debt because then the parcels would not be encumbered by the mortgages. The land would thus be available for reorganization or for claims of unsecured creditors. However, as the bankruptcy court recognized, payments could be allocated under this theory only “to the extent that payments were not previously applied by either of the parties.” Since application was made by creditors at the time the proceeds were received, a subsequent lien-creditor cannot upset this allocation. We need not decide whether, in the absence of a finding of allocation by a party, the debtor in possession would have the right to force a post hoc allocation favorable to himself. The district court’s rationale on allocation not only applies to lot 32 but also to lots 30, 31, 33 and 35. In agreeing with the court’s conclusion as to lot 32, we necessarily accept the result reached as to the allocation of the proceeds from these four other lots. The record with respect to the payments made on the sale of lot 28, however, presents a variation on the theme. Creditors were paid $22,000 on the sale of lot 28. The bankruptcy judge found that creditors applied this amount in partial satisfaction of the mortgage on parcel 1. This conclusory statement is the only reference in his findings and conclusions bearing on the allocation of that particular sum. The transcript of the testimony, however, reveals that creditors and debtors are in sharp conflict on the application of this fund. Creditors assert that at the closing for the sale of lot 28 they specifically asked that the check to them reflect that the money was to be applied toward the satisfaction of the judgment for interest due on the mortgages. As mentioned earlier, when the interest payments on the mortgages became delinquent, debtors signed a note on which judgment was entered in November 1979. Creditors say that the proceeds were applied against this judgment rather than toward the mortgage on parcel 1. They contend that the check issued by the attorney disbursing the proceeds at the settlement recites this allocation and is documentary evidence of their position. Debtors, to the contrary, assert that the attorney had no authority to agree to such an allocation and that they were not present when creditors made their request. There was testimony on these points at the hearing, but the bankruptcy judge made no findings on any of them. Seemingly, he found no need to do so because of his view that in this instance, as in the others, application was first to be made to the outstanding mortgage balance. The district judge, however, found that the finding was erroneous and that the amount should be credited to the note. In effect, the district judge made findings of fact based on the transcript in the absence of action by the bankruptcy judge. The proper procedure would have been to remand the dispute as to lot 28 to the bankruptcy judge for specific findings of fact, including consideration of the fact that in order to convey clear title at the March 1980 closing, the judgment would have had to be satisfied or released. Because there must be a remand to determine the proper allocation of the proceeds from lot 28, the district court order lifting the stay on lot 32 must also be vacated and that matter remanded to the bankruptcy court. Although we agree with the district court’s conclusion on the application of the proceeds from the sale of lot 32, the bankruptcy court’s decision on remand on the lot 28 allocation issue may affect the determination of whether the stay on lot 32 should be lifted. The extent of the debtors’ equity in lot 28 may be a factor in determining whether lot 32 is necessary for an effective reorganization and whether the creditors’ interest in lot 32 can be adequately protected. See 11 U.S.C. § 362(d). These matters are for the bankruptcy court in the first instance. Finally, debtors suggest that the district court decision should be vacated and the appeal to that court dismissed because creditors failed to seasonably file the designation of the contents of the record and a statement of issues as required by Bankruptcy Rule 806. The district court declined to dismiss the appeal on the basis of a four-day delay, finding no prejudice to debtors or bad faith on the part of the creditors. We find no error in the district court’s ruling on this issue. Not every failure to follow procedural rules mandates dismissal of the appeal. See e.g. Spartacus, Inc. v. Borough of McKees Rocks, 694 F.2d 947, 949 n. 6 (3d Cir.1982); Kirby v. United States, 675 F.2d 60, 62 n. 3 (3d Cir.1982); see also Third National Bank v. Winner Corp. (In re Winner Corp.), 632 F.2d 658, 660-61 (6th Cir.1980). Accordingly, the order of the district court will be vacated and the case will be remanded with instructions to remand to the bankruptcy court for proceedings consistent with this opinion. . The automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362 (1980 Supp. IV), reads in part: “(a) [A] petition filed under section 301, 302, or 303 of this title operates as a stay, applicable to all entities, of— tf; sfc sf: (2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title; (3) any act to obtain possession of property of the estate or of property from the estate; (4) any act to create, perfect, or enforce any lien against property of the estate; (5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title; * * * * Hi * (d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay— (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or (2) with respect to a stay of an act against property, if— (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization.” . The three lots in parcel 1 were numbered 27, 28 and 29. Those in parcel 2 were numbered 30, 31 and 32, and the lots in parcel 3 were designated 33, 34 and 35. . Section 1107 of the Bankruptcy Code gives a debtor in possession the rights, powers and duties of a trustee. This includes the status conferred by § 544. 5 COLLIER ON BANKRUPTCY ¶ 1107[2] at 1107-5 to 1107-6 (15th ed. 1983). The bankruptcy court would have been more precise if it had referred to the “debtor in possession” rather than to the “trustee” as having the status of a hypothetical lien-creditor. . See 11 U.S.C. § 362(d) at note 1. . In various parts of the record it is stated that lot 32 has been sold to a third party, thereby suggesting that the dispute on the foreclosure issue is now moot. At oral argument, however, debtors stated that the property was “sold” on a sales agreement of some nature and that the buyers were attempting to get a mortgage. Since it has not been judicially established that the sale is complete or that debtors are free from the threat of foreclosure on this lot, we do not consider the matter moot. . This section also applies to appeals from appellate panels composed of bankruptcy judges. See 28 U.S.C. §§ 160, 1482. No panels of that nature have been authorized in this circuit and no further reference to them will be made in this opinion. . 28 U.S.C. § 1334 provides in pertinent part: (a) The district courts ... shall have jurisdiction of appeals from all final judgments, orders, and decrees of bankruptcy courts. (b) The district courts ... shall have jurisdiction of appeals from interlocutory orders and decrees of bankruptcy courts, but only by leave of the district court.... . Rule 8003 of the new bankruptcy rules governs appeals by leave as of August 1, 1983, the effective date of the new rules. . An authoritative commentary describes the appeal provisions as “nearly incomprehensible,” leaving appeals from the district courts “in a sorry state of uncertainty.” 16 C. Wright, A. Miller, E. Cooper & E. Gressman, FEDERAL PRACTICE & PROCEDURE § 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_appel1_7_3	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 appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained". UNITED STATES of America, Plaintiff-Appellee, v. Bruce Loren LATIMER, Defendants-Appellant. No. 91-50420. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 17, 1992. Decided April 26, 1993. Canton F. Gunn, Asst. Federal Public Defender, Los Angeles, CA, for defendant-appellant. John J. Byrne, Jr., Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee. Before: NORRIS, REINHARDT, and TROTT, Circuit Judges. WILLIAM A. NORRIS, Circuit Judge: Appellant Bruce Latimer challenges his classification as a career offender under § 4B1.1 of the Sentencing Guidelines following his 1991 conviction for armed bank robbery and for use of a firearm during a crime of violence. Because he was designated a career offender by the district court, Latimer was sentenced to a period of 26 years and 10 months in prison, followed by a 5-year term of supervised release. Of Latimer's nearly 27 years in prison, 15 of these years came solely as a result of his being classified as a career offender. Whether Latimer is to be imprisoned an additional 15 years as a career offender turns, principally, on whether confinement in a community treatment center constitutes incarceration under the meaning of § 4A1.2(e)(1) of the Sentencing Guidelines. Because we hold that confinement in a community treatment center does not fall within the ambit of this provision, we reverse and remand for resentencing. I A defendant qualifies as a career offender if the present offense is a crime of violence and if the defendant has two prior convictions for crimes of violence. U.S.S.G. § 4B1.1. A prior conviction may be counted only if the conviction resulted in the defendant's incarceration during any part of the 15 years prior to the commission of the present offense. Id. at § 4A1.2(e)(1). Latimer does not dispute that his current offense, armed bank robbery, is a crime of violence. Nor does he dispute that he has one prior conviction which may be counted toward career offender status. Latimer's challenge is to the district court's decision to count several bank robberies he committed in 1967 as falling within the 15-year window. The question now before us is whether Latimer's confinement in a community treatment center for three months in 1979, following the revocation of his parole on his 1967 convictions, constituted incarceration under the meaning of § 4A1.2(e)(1). If it did, then Latimer was properly classified as a career offender; if it did not, then he was sentenced to prison for 15 years longer than he deserves. The government suggests two possible alternative grounds on which to base a finding that Latimer was incarcerated in connection with his 1979 parole revocation. First, the government argues that Latimer's three-month detention in the Utah Community Improvement Program, a community treatment center, following the revocation of his parole should be counted as incarceration under the Guidelines. In the alternative, the government notes that La-timer was detained for a period of time in a federal prison-first while he was awaiting his parole revocation hearing, and then while awaiting his subsequent transfer to the community treatment center-and argues that this detention should satisfy the meaning of incarceration under § 4A1.2(e)(l). We address each of the government’s arguments in turn. II Because Latimer challenges the application of the sentencing guidelines to undisputed facts, our review is de novo. United States v. Wilson, 900 F.2d 1350, 1355 (9th Cir.1990). Section 4A1.2(e)(l) sets forth the time period within which a prior sentence must have been imposed or served to count towards a defendant’s criminal history score. It provides that a district court may count a prior conviction only if the conviction resulted in the defendant’s incarceration or imprisonment — the Commission uses the words interchangeably — during any part of the fifteen years prior to the commission of the present offense: Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period. U.S.S.G. § 4A1.2(e)(l). The Guidelines also state that, when a prison sentence is reinstated upon revocation of parole, the district court should “add the original term of imprisonment to any term of imprisonment imposed upon revocation.” Id. at § 4A1.2(k)(l) (emphasis added). The two periods of imprisonment are counted as a single prison sentence for purposes of criminal history scoring, and for purposes of deciding whether that sentence falls within the applicable 15-year window. Id. at § 4A1.2(k)(2)(B). See United States v. Harrington, 923 F.2d 1371, 1375 (9th Cir.), cert. denied, — U.S.-, 112 S.Ct. 164, 116 L.Ed.2d 128 (1991). Thus, in cases where a defendant’s prison sentence is reinstated after revocation, of parole, the original sentence is counted only if “the date of last release from incarceration on [the post-revocation] sentence” falls within the 15-year period. U.S.S.G. § 4A1.2(k)(2)(B) (emphasis added). If Latimer’s detention in a community treatment center is properly characterized as incarceration, then the date of his “last release” from the community treatment center brings the 1967 convictions within the 15-year window, and thus brings La-timer within the definition of a career offender. The question of whether community treatment center detention constitutes “incarceration” under the meaning of section 4A1.2(e)(l) is one of first impression in our circuit. A Unfortunately, other than equating a “sentence of incarceration” with a “sentence of imprisonment,” see id. at § 4A1.2(b)(l), the Guidelines do not define incarceration. Nor do they address whether detention in a community treatment center qualifies as incarceration. However, the Commission’s silence on this question does not, and cannot, end the inquiry. In the absence of any clear expression of Commission intent, we must choose the interpretation that best fits the Guidelines’ general structure and purposes. At the outset of our inquiry, we find it significant that, in numerous provisions of the Guidelines, the Commission differentiates between imprisonment and non-imprisonment sentences (or, alternatively, between incarceration and non-incarceration sentences) based on the nature of the facility in which the confinement is served. In particular, the Commission repeatedly draws a sharp distinction between confinement in a community treatment center or halfway house and confinement in a conventional prison facility. For instance, in setting forth the formula for calculating a defendant’s criminal history category, § 4A1.1 and its commentary add a different number of points to a defendant’s criminal history score depending not only on the length of the prior confinement, but also on the location of the prior confinement. Sentences of “imprisonment” are classified according to the amount of time the defendant spent in prison, and they are scored accordingly — 3 points if the imprisonment exceeded 1 year and 1 month; 2 points if the imprisonment was for greater than 60 days but less than 1 year and 1 month; and 1 point if the imprisonment was for less than 60 days. See U.S.S.G. § 4Al.l(a)-(c), and comment (Background). In contrast with this three-tiered scoring structure for imprisonment sentences, a sentence served in a halfway house is in every case scored only 1 point— regardless of whether the defendant served 5 days or 5 years in confinement. Id. at § 4Al.l(c). Although the Guidelines do not directly specify the number of points that are to be added for sentences to a community treatment center, the Commission indicates elsewhere in the Guidelines that it regards halfway houses and community treatment centers as roughly equivalent forms of punishment. See U.S.S.G. § 5F1.1, comment (n. 1) (“ ‘Community confinement’ means residence in a community treatment center, halfway house, restitution center, mental health facility, alcohol or drug rehabilitation center, or other community facility.”). Accordingly, in the absence of any indications to the contrary, we must assume that the Commission meant to classify confinement in a community treatment center under the same category as confinement in a halfway house, thus adding only 1 criminal history point for each prior term of confinement. The Guidelines’ scoring system — adding as many as 3 points for each sentence of imprisonment, but only 1 point for a sentence served in a community treatment center or halfway house — is fully consistent with the Guidelines’ purposes. The point of the criminal history calculation is to quantify the defendant’s relative culpability, by measuring both the extent and seriousness of the defendant’s prior criminal record. The more serious a defendant’s prior crimes, the higher his criminal history score, and the longer his ultimate sentence. See U.S.S.G. § 4A (Introductory Commentary) (“A defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.”). Rather than trying to gauge the seriousness of each of the various crimes a defendant has committed, the Guidelines use a defendant’s prior sentences as a rough proxy for the severity of his offenses. The fact that the Guidelines add only 1 point for each sentence served in a community treatment center reflects the Commission’s judgment that the crimes which result in community treatment center confinement are generally less serious (and thus say less about the defendant’s relative blameworthiness) than crimes which result in imprisonment. Whether the Commission’s judgment is sound or not is beside the point. What matters for our purposes is that, in scoring the two categories of punishment differently, the Commission makes clear that it regards confinement in a community treatment center or halfway house as qualitatively different from confinement in a prison. This distinction is reinforced by § 2P1.1, which describes the base offense levels that attach to various crimes of escape. If a defendant escaped while being held in confinement following an arrest for a felony charge, or following any conviction, the base offense level is set at 13. U.S.S.G. § 2Pl.l(a)(l). If the escape occurred under any other circumstances (i.e., following a misdemeanor arrest), the base offense level is set at 8. Id. at § 2Pl.l(a)(2). However, the base offense level can be reduced in cases where the defendant escaped from “a community corrections center, community treatment center, ‘halfway house,’ or similar facility.” U.S.S.G. § 2Pl.l(b)(3). Section 2P1.1(b)(3) states: (3) If the defendant escaped from the non-secure custody of a community corrections center, community treatment center, “halfway house,” or similar facility, ... decrease the offense level under subsection (a)(1) by 4 levels or the offense level under subsection (a)(2) by 2 levels. Id. at § 2Pl.l(b)(3). What is significant about this provision is that the offense level reduction applies exclusively to escapes from community confinement facilities, such as community treatment centers and halfway houses. Indeed, we have held along with our sister circuits that the reduction under § 2Pl.l(b)(3) is unavailable to prisoners who have escaped from prisons or prison camps, even if they escaped under circumstances qualifying as “non-secure custody.” United States v. McGann, 960 F.2d 846, 847 (9th Cir.), cert. denied, — U.S. — , 113 S.Ct. 276, 121 L.Ed.2d 204 (1992) (“The language of subsection 2Pl.l(b)(3) ... is limited to the non-secure custody of facilities like ‘community corrections centers], community treatment center[s], [and] “halfway house[s].” ’ The district court held that federal prison camps are generically different from the facilities listed in section 2P1.1(b)(3). Consequently, escapes from [prison] camps ... are not entitled to the sentencing reduction. We agree.”); see also United States v. Tapia, 981 F.2d 1194 (11th Cir.1993); United States v. Brownlee, 970 F.2d 764, 765-66 (10th Cir.1992). That such a reduction is unavailable to defendants who escape from prison facilities is indicative of the Commission’s view that escape from a prison is a more serious offense than escape from a community treatment center or halfway house. Finally, the division between imprisonment and community treatment center confinement is emphasized again in § 5C1.1. For instance, § 5Cl.l(d) provides that when a defendant’s sentencing range is between 6 and 10 months, the court may impose either “(1) a sentence of imprisonment; or (2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in § 5Cl.l(e), provided that at least one-half of the minimum term is satisfied by imprisonment.” U.S.S.G. § 501.1(d) (emphasis added). In other words, if the court opts for the lower end of the range, 6 months, it cannot impose a sentence of 6 months in a community treatment center; it must impose at least 3 months of prison time. The apparent concern — indeed, the only conceivable reason for such a rule — is that it would be too lenient to permit a defendant to serve his entire term in a community treatment center. The obvious implication is that community treatment centers and prisons are not interchangeable. This same distinction is apparent in § 501.1(e)(2), where the Guidelines set forth the ratio at which a court may substitute community confinement for imprisonment (subject, of course, to the limitations imposed by § 5Cl.l(d)). This provision allows for the substitution of “[o]ne day of community confinement (residence in a community treatment center, halfway house, or similar residential facility) for one day of imprisonment.” U.S.S.G. § 501.1(e)(2) (emphasis added). The significance of this provision is not the rate of substitution it defines, but the fact that it defines one at all. For if confinement in a community treatment center were considered the equivalent of imprisonment, there would be no need to explain how the two modes of punishment could be substituted for one another. The inclusion of this provision once again demonstrates that the Commission views confinement in a community treatment center as qualitatively different from a sentence of imprisonment. In sum, sections 4A1.1, 2P1.1, and 5C1.1 all differentiate confinement in a community treatment center or halfway house from confinement in a prison. Moreover, we find no references in the Guidelines to suggest that the Commission intended to equate the two for the purposes of section 4A1.2(e)(l). Accordingly, we interpret the term incarceration in § 4A1.2(e)(l) to exclude detention in a community treatment center or halfway house. Accord United States v. Jordan, 734 F.Supp. 687 (E.D.Pa.1990). Our reading of § 4A1.2(e)(l) as not equating confinement in a community treatment center with incarceration also finds support in the rule of lenity. “The policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980) (quoting Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958)). The rule of lenity is rooted in “ ‘the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.’ ” United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971) (quoting H. Friendly, Benchmarks 209 (1967)). Here, the Commission has not clearly said whether confinement in a community treatment center qualifies as incarceration. Yet, for Mr. Latimer — and no doubt for many others who will find themselves in his circumstances — our resolution of this semantic, and seemingly arcane, question determines whether he is to spend an additional 15 years of his life behind bars. In such a case, the rule of lenity compels us to resolve ambiguities in favor of the criminal defendant and adopt the interpretation imposing the lesser of the two penalties. Accordingly, we hold that confinement in a community treatment center does not constitute incarceration under the meaning of § 4A1.2(e)(l). B In arguing that confinement in a community treatment center is the equivalent of incarceration under the meaning of § 4A1.2(e)(l), the government relies principally on the case of United States v. Vanderlaan, 921 F.2d 257 (10th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1429, 113 L.Ed.2d 481 (1991). In Vanderlaan, the defendant argued that a sentence imposed under the Narcotic Addict Rehabilitation Act (“NARA”) should not be characterized as a sentence of incarceration because it is imposed primarily for the purpose of drug rehabilitation. The Tenth Circuit disagreed, holding that “the Guidelines make no distinction between offenders incarcerated primarily for rehabilitation and those incarcerated simply to remove the offender from society.” 921 F.2d at 259. Vanderlaan is distinguishable from the case before us in two significant respects. First, the court in Vanderlaan had no occasion to address whether confinement in a community treatment center is the equivalent of incarceration. This is because the sentence imposed on Vanderlaan was not a sentence to a community treatment center, but instead a sentence of continuous confinement in a federal prison. 921 F.2d at 259. Indeed, the court made clear that the reason it distinguished Vanderlaan’s sentence from “other types of criminal sentences” not amounting to incarceration was because these other sentences “do not require that an offender be continuously confined in a federal institution.” 921 F.2d at 259. Thus, the holding in Vanderlaan is inapplicable to the case of community treatment center confinement, since community treatment centers are not federally-operated facilities, and they do not generally involve continuous, 24-hour confinement. Moreover, our recognition that the Guidelines distinguish between incarceration and confinement in a community treatment center is not in tension with the Tenth Circuit’s reasoning in Vanderlaan. Van-derlaan stands for the proposition that the purposes for which an individual is confined are not dispositive of whether the confinement amounts to incarceration. Our decision today does not turn on the purposes for the defendant’s confinement, but rather on the facility in which the confinement is served. Simply put, if the facility of confinement is a community treatment center or halfway house, then the confinement does not amount to incarceration for purposes of § 4A1.2(e)(l). Nor is our holding today in conflict with our prior decision in United States v. Schomburg, 929 F.2d 505 (9th Cir.1991). In Schomburg we held that a defendant’s prior sentence of sixty days in a county jail was properly classified as a “sentence of imprisonment” under § 4Al.l(b), even though the defendant ultimately served this sentence by participating in a weekend work project administered by the Sheriff. Although we acknowledged that the Sheriff had legal discretion to modify the defendant’s sentence, we held that it was “the sentence, as pronounced by the court at the outset” that determined its classification under the Guidelines. See id. at 507 (emphasis added). By its terms, therefore, the holding in Schomburg applies only in cases where a court specifies a sentence of imprisonment. Here, there was no court-specified imprisonment. The sentence was imposed by the Parole Commission and the sentencing order explicitly recommended placement in a community treatment center. C Finally, we recognize that the government’s position is supported by United States v. Rasco, 963 F.2d 132 (6th Cir.), cert. denied, — U.S.-, 113 S.Ct. 238, 121 L.Ed.2d 173 (1992), a case decided subsequent to the briefing in this case which held that a sentence to a halfway house constitutes incarceration under the Guidelines. Because we find the Sixth Circuit’s reasoning in Rasco to be unpersuasive, however, we respectfully decline to follow it. In Rasco, the Sixth Circuit held, on facts quite similar to the ones here, that confinement in a halfway house following the revocation of parole constitutes incarceration under tlie meaning of § 4A1.2(e)(l) of the Guidelines. Ironically, the Sixth Circuit acknowledged that the Guidelines draw a distinction between confinement in a halfway house and confinement in a prison — the very distinction on which we base our holding. See 963 F.2d at 136-37 (“We recognize that [our] interpretation arguably conflicts with the background commentary to section 4A1.1 [_which] seems to equate confinement sentences with sentences of imprisonment and distinguish both from residency in a halfway house.”). Yet the court held that this distinction was superseded by another provision in the Guidelines — namely, § 4A1.2(k) — which it interpreted as treating all sentences imposed upon revocation of parole as sentences of imprisonment. Section 4A1.2(k) provides that, in cases where a defendant’s parole is revoked, a court is to “add the original term of imprisonment to any term of imprisonment imposed upon revocation.” U.S.S.G. § 4A1.2(k)(l). This combined sentence is counted as a single sentence, and “used to compute the criminal history points for § 4Al.l(a), (b), or (c), as applicable.” Id. The commentary to § 4A1.2(k) explains that the reason the Guidelines combine the “original sentence” and the “sentence given upon revocation” is so that “no more than three points will be assessed for a single conviction, even if probation or conditional release was subsequently revoked.” Id. at § 4A1.2, comment (n. 11) (emphasis added). The Sixth Circuit read section 4A1.2(k) and its commentary as an expression of the Commission’s view that a sentence imposed upon revocation of parole, regardless of whether the sentence is served in prison, a halfway house, or a community treatment center, be added to the original term of imprisonment, requiring the sentencing court to count them as a single sentence for purposes of criminal history scoring. Rasco, 963 F.2d at 135. The court thus held that “section 4A1.2(k) precludes a court from treating a sentence imposed upon revocation of parole as a distinct sentence deserving separate counting under section 4Al.l(a), (b), or (c).” Id. As best we can tell, the Sixth Circuit’s reasoning appears to rest on the following proposition: that unless sentences to halfway houses and community treatment centers are characterized as “sentence[s] of imprisonment” under § 4A1.2(k), a situation could arise in which a defendant might receive more than three criminal history points for a single conviction. Because such a result appears to run contrary to the intention of the commentary, the court reasoned that the Commission must have intended all sentences imposed upon revocation — including sentences to a community treatment center or halfway house — to be classified as “sentence[s] of imprisonment” under § 4A1.2(k) and added to the original terms of imprisonment for purposes of criminal history scoring. The Sixth Circuit’s reasoning has a certain logical appeal, but it rests on an unsupported, and unwarranted, assumption— that if a sentence imposed upon revocation of parole is not classified as imprisonment, then it automatically gets counted as a separate criminal sentence (which than adds an additional point to the defendant’s overall criminal history score). We see no basis for such an assumption. Section 4A1.2(k) is the only provision in the Guidelines that addresses the question of post-revocation sentences, and it says nothing about whether the courts are to add an additional point for non-imprisonment sentences imposed upon revocation of parole. In fact, it says nothing at all about non-imprisonment sentences, and thus we see no reason to read such a provision into the Guidelines. We read section 4A1.2(k) to mean precisely what it says. It does not say that every sentence imposed upon revocation should be added to the original sentence of imprisonment, it says only that “term[s] of imprisonment” imposed upon revocation should be added to the original sentence. Indeed, this emphasis on imprisonment as the defining characteristic is reinforced further by § 4A1.2(k)(2)(B)(i), where the Guidelines measure the applicability of a revocation sentence by reference to “the date of last release from incarceration from such sentence.” U.S.S.G. § 4A1.2(k)(2)(B)(i) (emphasis added). In sum, § 4A1.2(k) uses the terms “imprisonment” and “incarceration,” but it does not define these terms. The question remains whether the Commission meant to include confinement in a community treatment center or halfway house under the meaning of these terms, which we believe can only be answered by looking to other provisions of the Guidelines, as we have done in Part 1(A) supra. Ill In the alternative, the government argues that, even if detention in a community treatment center is not incarceration, Latimer was nevertheless incarcerated during the relevant time period because he was detained within a federal prison for approximately three months while he awaited the scheduling of his parole revocation hearing, and then for an additional two and a half weeks pending his subsequent transfer to the community treatment center. We disagree. To characterize this period of detention as “incarceration” simply because the defendant was physically confined within the walls of a federal prison would subvert the purposes of the Guidelines. The reason the Guidelines focus on prior sentences of incarceration has nothing to do with the fact of incarceration per se, but rather with the reason behind the incarceration. The assumption is that crimes which result in incarceration are more serious than crimes which do not. And, thus, a defendant who has been incarcerated in the past is regarded as more culpable, and consequently more deserving of punishment, than one who has never been incarcerated. However, when the reason behind a period of incarceration is administrative necessity, rather than an adjudication of guilt, this period of incarceration says nothing about the defendant’s culpability. Accordingly, it may not provide a basis for sentence enhancement. In the instant case, the time Latimer spent in custody at the federal prison was entirely administrative in nature. Until La-timer’s parole was formally revoked by the Parole Commission, the justification for La-timer’s detention was not that he had violated his parole, but rather that he was suspected of violating his parole. This period of detention is thus analogous to pretrial custody. The consequences of eount-ing pre-revocation custody as incarceration would be unthinkable: defendants would have their sentences enhanced even if it were later determined at their hearings that they had not violated parole. Moreover, since under the old federal sentencing scheme defendants were entitled to release on bail pending the outcome of their parole revocation hearing, the length of a defendant’s future punishment could vary substantially based on the mere fortuity of whether he had been able to post bail. We cannot believe the Sentencing Commission intended such bizarre results. Accordingly, we hold that detention pending the outcome of a parole revocation determination does not constitute “incarceration” for purposes of section 4A1.2(e)(l). Finally, we also reject the government’s attempt to characterize as incarceration the time Latimer spent in the penitentiary after his parole was revoked. In our view, this period of detention was analogous to pre-sentence custody when a defendant cannot post bail. In revoking Latimer’s parole, the parole commission explicitly recommended that he be “place[d] in a Community Treatment Center.” It appears from the record that it took two and a half weeks for the authorities to find an available community treatment center and finalize Latimer’s transfer. To punish Latimer with an additional 15 years of prison time for a delay caused by bureaucratic inefficiency would be an affront to basic notions of fairness and just punishment, a result surely not intended by the Guidelines. Latimer’s sentence is VACATED and the case is REMANDED for resentencing. . Latimer raises a number of other challenges to `both his conviction and his sentence. However, because his other claims do not present any novel questions of law, we decide them in an unpublished memorandum decision filed contemporaneously with this opinion. . See also U.S.S.G. § 4A1.2(b)(l) ("The term ‘sentence of imprisonment' means a sentence of incarceration and refers to the maximum sentence imposed.”). . Thus far, only the Sixth Circuit has had occasion to address this question, and it reached the opposite conclusion from the one we reach today. See United States v. Rasco, 963 F.2d 132 (6th Cir.), cert. denied, — U.S.-, 113 S.Ct. 238, 121 L.Ed.2d 173 (1992). See our discussion infra at 1515-16. . Section 4A1.1 directs the sentencing judge to add: (a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month. (b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a). (c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this item. U.S.S.G. § 4Al.l(a)-(c) (emphasis added). The background commentary to section 4A1.1 equates “confinement sentences” with "sentences of imprisonment" and distinguishes both from residency in a halfway house: Subdivisions (a), (b), and (c) of § 4A1.1 distinguish confinement sentences longer than one year and one month, shorter confinement sentences of at least sixty days, and all other sentences, such as confinement sentences of less than sixty days, probation, fines, and residency in a halfway house. Id. at § 4A1.1, comment (Background) (emphasis added). . The sentencing provision in NARA provides that a defendant may be confined in any institution within the federal penal system, including the federal penitentiaries. See 18 U.S.C. § 4251(c) and 1966 U.S.Code Cong. Si Adm. News, at 4245, 4247. . If we assume that the original sentence and the revocation sentence would be counted separately, this result could occur in a case where the initial prison sentence on a conviction exceeded one year and one month (3 points, see § 4Al.l(a)) and the sentence imposed upon revocation was a sentence other than “imprisonment” (1 point, see § 4Al.l(c)). But see discussion at 4153. . Perhaps we would accept the Sixth Circuit's assumption if it were either inherent in the logic, or indispensable to the structure, of the Guidelines. But it is neither logical nor indispensable. In fact, given that the Commission limits original sentences to a community treatment center to only a single criminal history point (whatever their length), we find it entirely plausible that the Commission intended to overlook post-revocation sentences to a community treatment center altogether in calculating the defendant's criminal history score. At the very least, we find nothing in § 4A1.2(k) that suggests otherwise. . See 18 U.S.C. § 4214(a)(l)(A)(i-iv). These provisions have now been repealed because the Guidelines eliminate parole, but the provisions were in effect at the time of Latimer’s parole revocation hearing. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion? A. not ascertained B. caucasian - specific indication in opinion C. black - specific indication in opinion D. native american - specific indication in opinion E. native american - assumed from name F. asian - specific indication in opinion G. asian - assumed from name H. hispanic - specific indication in opinion I. hispanic - assumed from name J. other Answer:

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