Split (2)

train · 553k rows

task stringclasses 260 values	output stringlengths 2 5	instruction stringlengths 576 44k
songer_app_stid	01	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 task is to identify the state of the first listed state or local government agency that is an appellant. LUDINGTON LUMBER CO. v. METROPOLITAN NAT. BANK OF MINNEAPOLIS. No. 5754. Circuit Court of Appeals, Sixth Circuit. Jan. 4, 1932. J. T. McAllister, of Grand Rapids, Mich. (McAllister & McAllister, of Grand Rapids, Mich., and A. A. Keiser, of Ludington, Mieh., on the brief), for appellant. S. H. Maslon, of Minneapolis, Minn. (Knappen, Uhl, Bryant & Snow, of Grand Rapids, Mich., and Brill & Maslon, of Minneapolis, Minn., on the brief), for appellee. Before DENISON, HICKS, and'HICKENLOOPER, Circuit Judges. DENISON, Circuit Judge. The plaintiff below, appellee here, brought suit at law as the holder of a promissory note for. $18,000, dated September 1, 1926, due in ten years, with interest payable semiannually. The note embodied this paragraph : “This note is secured by a trust deed of even date herewith, made to Ernest F. Smith, Trustee, on real estate situated. * * * The Trustee may, or shall, in ease of any default in the terms of the said trust deed herein referred to (reference to which is hereby made), declare all amounts secured thereby due and payable and proceed to enforce it according to its terms.” Upon the back of the note was indorsed: “For value received, the undersigned hereby guarantees the collection and payment of the within note. * * * [Signed] Ludington Lumber Company.” On February 24, 1928, the trustee, claiming that by default the whole amount had become due, commenced a foreclosure suit in the appropriate Michigan court. The guarantor, which was made one of the defendants, answered and claimed the benefit of the foreclosure, to protect its own liability. After a few months the trustee, against the protest of the guarantor, dismissed this foreclosure; and thereupon the holder of the note brought this suit. The questions involved are: Was the guaranty, in law, one of payment rather than one of collection ? Was the guaranty obligation due? The decisions are to some extent in conflict as to whether a guaranty of “collection and payment” should be treated as if it were an independent guaranty of payment or should be limited to an assurance of payment through collection. The question is, of course, one of intent; but as to the simple and uncomplicated case and without regard to any acceleration, we think the words “collection and” do not operate as a limitation but create two promises, either of which the creditor may pursue at his election. If the two appropriate remedies were so related that each would produce in the end precisely the same result, there would be force in the suggestion that the guaranty of collection, necessarily including ultimate payment and so covering both, would be considered the dominant promise, leaving the other as surplus-age; but the results of enforcement are not necessarily the same. Proceeding first for collection against the maker may be practically advantageous to the creditor, or to the guarantor; and the reverse order of proceeding may be advisable from either standpoint, though less commonly from that of the guarantor. Further, the guaranty of collection secures the creditor against costs and expenses, perhaps in considerable amount, which it could not recover under a guaranty of - payment merely. Of the cases eited, as directly in point, we think the later case in New York, practically overruling the earlier one, states the better rule. There remains to consider the effect of the acceleration clause and its exercise, because except for that this action is premature. It is argued that since the subject-matter is fully covered by the provision on the face of the note, this provision alone must control, regardless of what may be found in the trust deed, and that by this provision, considered alone, the power to accelerate is coupled with the duty to foreclose so that one cannot stand without the other, and hence that the abandonment of the foreclosure by the trustee abandoned also and destroyed any continuing force in the election which he had made, when he began his foreclosure, to declare the whole amount due. It is pointed out that in the cases in which an ’ acceleration, under the terms of the security, has been held to bind the guarantor, the power had been confided to the creditor, so that it was to be exercised as an incident to the debt guaranteed, rather than confided to a stranger to the debt, the trustee, so as to be exercised only in aid of'the security. This matter also involves the question of intent, which may commonly be determined specially from the facts of the particular ease. We find in this record two circumstances which seem to have particular bearing upon tbe intent of tbe guarantor to be bound immediately to pay the whole amount if there were any default. The first is one which is not completely pertinent, because it indicates only what would have been the reasonable, probable, actual intent. The entire arrangement was primarily for the benefit of the guarantor, — the lumber company. The note maker contemplated erecting a building and desired the guarantor to sell to him the building material, and incidentally to finance or find a way to finance the remaining cost of the building operation. Accordingly, the guarantor applied to the Lumberman’s Finance Corporation, between which and the guarantor there existed a contract that the finance corporation would advance the capital for such operation, taking mortgage security upon the property, and that the Ludington Company would guarantee the payment of all sums of both principal and interest, when due. Out of the $18,000 first lien principal, under this note and trust deed, the guarantor received about $6,000 in payment for the building materials which it was thus enabled to sell to the note maker. This situation quite removes the occasion for that strict construction in aid of diminution of liability which the guarantor for accommodation sometimes receives. The second is that by the trust deed the power, in case of any default, to declare the whole amount due, was to be exercised by the trastee at the option of the note holder, the guarantor or the trustee. Thus the guarantor, although not a party to the trust deed, was entitled to rights thereunder. Since the trust deed neither gave to the guarantor any power to foreclose, nor directed the trustee to exercise such power for the benefit of the guarantor, it is dear that the latter’s rights in the security would be by way of subrogation; and it could not have subrogation without payment, nor could it have the right to make payment before maturity. The power to accelerate maturity was therefore a right valuable to the guarantor, but it received this right only in association with the same right given by the same words to the trustee. That the guarantor should have the benefit of this election as against the note holder and the trustee, but should not be subject to its exercise by them, is, we think, an untenable claim. Hence, without deciding what rale of construction might otherwise be applied, we conclude that the trustee’s right to declare the whole amount due was not limited by any duty of concurrent and continuing foreclosure, as might be implied from tbe note alone, but was as unlimited thereby as was tbe guarantor’s corresponding right, both arising under the trust deed; and hence that the guarantor’s duty to pay the whole amount was rightly advanced and matured. The deeree bolow is affirmed. Baxter v. Smack, 17 How. Prac. (N. Y.) 183; Tuton v. Thayer, 47 How. Prac. (N. Y.) 180; Square Butte Bank v. Ballard, 64 Mont. 554, 210 P. 889. Wheeler, etc., Co. v. Howard (C. C.) 28 F. 741; Brewer v. Penn Mutual (8 C. C. A.) 94 F. 347; and cases cited in note 34 A. L. R. 848. Ther.e are Missouri and Minnesota cases contra. Question: What is the state of the first listed state or local government agency that is an appellant? 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_othcrim	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". Clovis Carl GREEN, Jr., Appellant, v. Carl WHITE, Superintendent, Missouri Training Center for Men, Appellee. No. 78-1714. United States Court of Appeals, Eighth Circuit. Submitted Jan. 2, 1979. Decided Jan. 8, 1979. Rehearing and Rehearing En Banc Denied Jan. 22, 1979. Clovis Carl Green, Jr., pro se. John D. Ashcroft, Atty. Gen. and Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, Mo., for appellee. Before BRIGHT, STEPHENSON and McMILLIAN, Circuit Judges. PER CURIAM. On July 19, 1978, plaintiff brought suit under 42 U.S.C. § 1983, claiming he was unconstitutionally transferred from the Missouri Training Center for Men in Moberly to the Missouri State Penitentiary in Jefferson City because of his religious practices and beliefs and because he had earlier filed suit against Missouri prison authorities. Plaintiff sought $1,000,000 for violation of his constitutional rights and a declaration that the Human Awareness Universal Life Church is a legitimate religion that must be recognized by defendant, the Superintendent of the Moberly facility. On September 18, 1978, Judge Meredith, of the United States District Court of Missouri, granted defendant’s motion for summary judgment and dismissed plaintiff’s petition with prejudice. In an accompanying memorandum, Judge Meredith explained that the record established that plaintiff was transferred from Moberly, a medium security prison, back to Jefferson City, a maximum security prison, only after he threatened to kill certain prison officials and after an administrative board hearing was held on the incident. [The chronological data sheet of the Missouri Division of Corrections shows: The threat was made April 14,1976, when plaintiff stated, “Guess I will have to kill a few people when I get out of here”; plaintiff admitted making the statement when he appeared before the administrative hearing board on April 15,1976, although he argued that he was only joking; and that in recommending plaintiff be transferred to Jefferson City for purposes of controlling plaintiff’s behavior, the administrative hearing board stated in its report of April 15, 1976, that plaintiff posed a threat to the safety of the personnel at the Moberly institution and was an antisocial and devious criminal.] The entire record and, in particular, plaintiff’s chronological data sheet from the Missouri Division of Corrections containing the signed April 15, 1976, report of the administrative hearing board supports the district court. Plaintiff claims on appeal the district court ignored his claim that defendant violated his freedom of religion. The complaint states that plaintiff was threatened with transfer from Moberly to Jefferson City if he did not stop his religious activities and that subsequently he was transferred. In holding that plaintiff was transferred after he had threatened on April 14, 1976, to kill certain prison officials and “in the best interests of the prisoner and of other prisoners and prison officials,” the district court did rule by implication that plaintiff was not being transferred for his religious practices. In conclusion, the records of the Missouri Division of Corrections show and the district court found plaintiff was transferred for the good of plaintiff, the other prisoners, and the prison staff because of plaintiff’s antisocial behavior and not for his religious practices or litigious proclivities. Affirmed. Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
sc_issuearea	I	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. HOINESS v. UNITED STATES. No. 20. Argued October 21, 1948. Decided November 8, 1948. Herbert Resner argued the cause and filed a brief for petitioner. Harry I. Rand argued the cause for the United States, stating that the Government was not opposed to the reversal of the judgments below and a remand of the cause to the District Court for a decision on the merits. With Mr. Rand on the brief were Solicitor General Perlman, Assistant Attorney General Morison, John R. Benney and Alvin 0. West. MR. Justice Douglas delivered the opinion of the Court. Petitioner was a seaman on the S. S. Escanaba Victory, a vessel owned by the United States and operated under an agreement between the War Shipping Administration and the American-South African Line, Inc., the provisions of which are unnecessary to relate here. He was injured while the vessel was docked at the port of San Francisco, California, and brought this suit in admiralty against the United States under the Suits in Admiralty Act. 41 Stat. 525, 46 U. S. C. § 742. The libel alleged that the United States maintains offices and principal places of business in the Northern District of California where the suit was brought, but it did not allege that petitioner was a resident of that district nor that the vessel was found there at the time suit was filed. The United States did not appear specially but answered to the merits, leaving all questions of jurisdiction to the court. The District Court raised the question of jurisdiction sua sponte and, being of opinion that jurisdiction was lacking, dismissed the libel. 75 F. Supp. 289. Its opinion was dated August 5, 1946, and on the same day it entered an order reading as follows: “It is ordered: “That the libel herein is dismissed for lack of jurisdiction, and that respondents have judgment for costs. “Counsel for respondents will submit findings of fact and conclusions of law in accordance with the rules of court and the opinion filed herewith.” On October 14, 1946, it filed “Findings of Fact and Conclusions of Law” and a decree. The decree after formal recitals stated: “Wherefore, by reason of the law and the evidence and the premises, and the findings of fact and conclusions of law, as aforesaid, it is ordered, adjudged and decreed that the above-entitled Court has no jurisdiction over the subject matter of the action, and that the libel be dismissed.” On October 18, 1946, petitioner filed a petition for appeal stating that he was “aggrieved by the rulings, findings, judgment and decree made and entered herein on October 14, 1946.” The appeal was allowed on the same day. The Court of Appeals by a divided vote dismissed the appeal, holding that the first order was the final one and that the decree of October 14, 1946, was not appealable. 165 F. 2d 504. The case is here on certiorari. I. We find it unnecessary to determine whether the order of August 5 or that of October 14, 1946, was the final decision from which an appeal could be taken within the meaning of § 128 of the Judicial Code, 36 Stat. 1133, 28 U. S. C. (1946 ed.) § 225; 62 Stat. 929, 28 U. S. C. § 1291. The appeal was taken within three months of the earlier of the two and was therefore timely. 43 Stat. 940, 28 U. S. C. (1946 ed.) § 230. And although the petition for appeal referred solely to the second order and not to the first, that defect was of such a technical nature that the Court of Appeals should have disregarded it in accordance with the policy expressed by Congress in R. S. § 954, 28 U. S. C. (1946 ed.) § 777. The mandate of that statute is for a court to disregard niceties of form and to give judgment as the right of the cause shall appear to it. It seems to us hypertechnical to say that the appeal papers did not bring the sole issue of the case fairly before the Court of Appeals. Thus the assignments of error framed in the appeal attacked the basis of the first order as well as the second. What appellant sought to have reviewed was plain. The failure to use the words August 5, 1946, if that be taken as the date of the final decision, was as insubstantial as a misspelling of the words would have been, since the words used identified the rulings which were challenged, and in no way altered the scope of review. Cf. R. F. C. v. Prudence Group, 311 U. S. 579, 582; Georgia Lumber Co. v. Compania, 323 U. S. 334, 336. II. The ruling of the District Court that the provisions of § 2 of the Suits in Admiralty Act, directing where suits shall be brought, were jurisdictional was in our view erroneous. Those provisions properly construed relate to venue. The section relates not to libels in rem but to libels in personam. A similar provision in § 5 of the Tucker Act (24 Stat. 506, 28 U. S. C. (1946 ed.) § 762, 28 U. S. C. § 1402), was held to prescribe venue and hence could be and was waived by failure to object before pleading to the merits. United States v. Hvoslef, 237 U. S. 1, 11—12; Thames & Mersey Ins. Co. v. United States, 237 U. S. 19, 24. An analogous provision in the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688, was construed the same way. Panama R. Co. v. Johnson, 264 U. S. 375, 384-385. And we recently indicated that that was the correct construction of comparable provisions of § 2 of the Public Vessels Act, 43 Stat. 1112, 46 U. S. C. § 782 (Canadian Aviator, Ltd. v. United States, 324 U. S. 215, 224), an act which is similiar in purpose and design to the present one. See American Stevedores v. Porello, 330 U. S. 446, 452-453. Congress, by describing the district where the suit was to be brought, was not investing the federal courts “with a general jurisdiction expressed in terms applicable alike to all of them.” See Panama R. Co. v. Johnson, supra, p. 384. It was dealing with the convenience of the parties in suing or being sued at the designated places. The purpose of the Act was to grant seamen relief against the United States in its own courts. The concepts of residence and principal place of business obviously can have no relevance when applied to the United States. It is ubiquitous throughout the land and, unlike private parties, is not centered at one particular place. The residence or principal place of business of the libelant and the place where the vessel or cargo is found may be the best measure of the convenience of the parties. But if the United States is willing to defend in a different place, we find nothing in the Act to prevent it. The judgment is reversed and the case is remanded to the District Court for further proceedings in conformity with this opinion. Reversed. The United States Maritime Commission now stands in its shoes. See 60 Stat. 501. Other parties were also sued but they were dismissed from the case. Section 2 of that Act provides in part: “That in cases where if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States or against such corporation, as the case may be, provided that such vessel is employed as a merchant vessel or is a tug boat operated by such corporation. Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found. . . . Upon application of either party the cause may, in the discretion of the court, be transferred to any other district court of the United States.” The record shows the petitioner’s residence was in Oregon. This is the kind of problem which could be appropriately handled through the rule making authority of the Court of Appeals. Cf. Commissioner v. Bedford, 325 U. S. 283, 288. That section reads as follows: “No summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect, or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe.” After the dismissal of the appeal in this case, the foregoing section was repealed, effective September 1, 1948. 62 Stat. 992, § 39. And see Revision of Title 28, U. S. Code, H. Rep. No. 308, 80th Cong., 1st Sess., p. A 239. But the policy expressed in § 954 was preserved as respects cases pending at the time of the repeal, since the repealing statute provides that “Any rights or liabilities now existing under such sections or parts thereof shall not be affected by this repeal.” And see Rules 1, 15, 61, and 81, Rules of Civil Procedure. See note 3, supra. 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_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. SULLIVAN ex rel. JEE GIM BEW v. TILLINGHAST, Immigration Com’r. Circuit Court of Appeals, First Circuit. October 26, 1928. No. 2239. William H. Lewis, of Boston, Mass. (John G. Sullivan, of Boston, Mass., on the brief), for appellant. John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for appellee. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. JOHNSON, Circuit Judge. The relator, Jee Gim Bew, a Chinese person, sought admission to the United States as the foreign-bom son of Gee Poy, who it was conceded was a citizen of the United States. The Board of Special Inquiry at Boston refused admission on the ground that he had not reasonably established that he was the son of Gee Poy, and on appeal to the Secretary of Labor its decision was affirmed and deportation ordered. Habeas corpus was prayed for and denied by the District Court of Massachusetts. The only question before the District-Court was whether the petitioner had been accorded a fair hearing by the immigration officials. This has been so often decided that it is unnecessary to cite any decision in its support. If there were any substantial evidence before the Board of Special Inquiry which would support its finding, which has been affirmed by the Secretary of Labor, the District Court was without jurisdiction. The petitioner was examined at length in regard to the village in China from which he claimed to have come, as was also an alleged brother and the father. Both the alleged brother and father testified that there was a fishpond in front of this village. The petitioner testified that there was no pond in front of or near it and never has been. There were some discrepancies between the testimony of the applicant and other witnesses with reference to the location of the houses in the village and their occupants, and as to whether the brother did anything after he left school; but the material discrepancy related to the location of a pond in front of the village. The petitioner is 27 years of age and claims to have lived all his life in the village in China from whieh he claims to have come and in front of which, or near which, he testified there is no fishpond; but both the alleged father and brother positively testified that there is one there, and the alleged brother drew a diagram representing its location and showing that an unobstructed view of it could be had from the front of the house where the relator claimed to have lived. Upon this record.we cannot say that the action of the immigration officials was arbitrary or entirely unsupported by substantial evidence. The decree 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_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. Richard Allen HILLEARY, Appellant, v. William O. WALLACE, Acting Warden of the West Virginia State Penitentiary, Appellee. No. 75-1177. United States Court of Appeals, Fourth Circuit. Argued June 9, 1975. Decided July 9, 1975. H. Lane Kneedler, Charlottesville, Va. [court-appointed counsel] and (Charles L. Howard [third-year law student] on brief), for appellant. Betty L. Caplan, Asst. Atty. Gen. of W. Va. (Chauncey H. Browning, Jr., Atty. Gen. of W. Va., Richard E. Hardi-son, Deputy Atty. Gen. of W. Va., and Fredric J. George, Asst. Atty. Gen. of W. Va., on brief), for appellee. Before RUSSELL, FIELD and WIDENER, Circuit Judges. PER CURIAM: The State prisoner in this habeas proceeding contends that his constitutional rights were violated in the warrantless search of his automobile, and in the admission of identification testimony by one of the investigating officers in the course of his State trial, which resulted in his conviction for breaking and entering. It is clear that the circumstances in the case were such as to justify a seizure of the petitioner’s automobile by the police authorities) and, having validly seized it, a search of it by them. The record establishes that between two and three o’clock in the morning the lone police officer on duty at the time in the village of Charles Town, West Virginia, observed on three occasions an automobile bearing a Virginia license cruising about the block on which the Supertane Sales Corporation store was located. His suspicions were aroused by the presence and the unusual movements of an out-of-state car at this early hour about the business section of the village. He endeavored to maintain some observation of its subsequent movements and activity. For a short time he lost sight of the car until he noticed it parked in a private parking lot, maintained by a local business for its use, and situated directly behind the Supertane Sales Corporation store, and in the block about which the car had been observed cruising earlier. No driver at the moment was in the car — or observable thereabouts. Upon examination of the car he found the radiator was warm and the key in the ignition switch. The presence of the key in the ignition switch suggested that the driver was nearby and might be expected to drive off in the immediate future. Shortly before this, the officer had routinely checked the Supertane Sales Corporation store and found it secure. Because of the unusual and suspicious movements of the car, and its sudden appearance behind the Supertane store, he decided to examine the store again. He discovered that it had been broken into during the period since his earlier examination. He immediately called the manager of the store and with him examined the interior of the store. A place in the display area of the store where normally television sets were exhibited was found bare. In the meantime, the officer called the owner-operator of the parking area and learned that the car had no legitimate right to be parked in the lot. With knowledge of all these facts the officer clearly had both exigent circumstances and probable cause to believe that the car was connected with the burglary of the store and that a search of it would yield evidence useful for prosecution of the crime of breaking and entering. The right of the officer in this context to seize the car without a warrant was manifestly justified. That the officer did not, however, search the car until a short time later after it had been removed to another location, as requested by the owner of the lot where the car was initially found parked, is unimportant. And, while it could not be used as a justification for the search, it is of interest that the search was fruitful and did reveal the presence in the trunk of the car of two television sets which by their tags showed they had been taken from the burglarized store. The claim of an invalid search is accordingly without merit. The record also sustains the identification testimony given by one of the officers, as supported by an independent source, irrespective of any claim of taint raised by the petitioner. On at least three separate occasions the officer had observed the petitioner as he cruised in the seized car about the block in which the store burglarized was located. On the three occasions he had seen the petitioner in the automobile, the officer, though about one hundred feet from the petitioner, had the benefit of street lights, which enabled him to secure a good view of the petitioner, who had rather distinctive features and attire. We think that, considering the “totality of circumstances,” there was sufficient basis for a finding by the Trial Court of an independent source for the identification testimony challenged. Stanley v. Cox (4th Cir. 1973) 486 F.2d 48, 55. The judgment of the District Court dismissing the habeas petition is accordingly affirmed. Affirmed. . 28 U.S.C. 2254. . If the driver was nearby, as the officer had every reason to assume, he must have observed the activities of the officer and would have had every “motivation to remove [the] evidence” of the crime which he knew was present in the trunk of his car. See Cardwell v. Lewis (1974) 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325. . Boone v. Cox (4th Cir. 1970) 433 F.2d 343; United States v. Bozada (8th Cir. 1973) 473 F.2d 389, 391, cert. denied 411 U.S. 969, 93 S.Ct. 2161, 36 L.Ed.2d 691. . The facts in this case are considerably stronger than those in Cardwell v. Lewis, supra, where the Court ruled that the facts “provided reason to believe that the car was used in the commission of the crime * * (417 U.S. at 592, 94 S.Ct. at 2470.) . Chambers v. Maroney (1970) 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419. . Chambers v. Maroney, supra (399 U.S. at 51, 90 S.Ct. 1975). 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:
songer_othcrim	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". In re SKORCZ. TRUSTEES SYSTEM REINCO CO. v. SKORCZ. No. 4899. Circuit Court of Appeals, Seventh Circuit. June 24, 1933. Rehearing Denied Nov. 16, 1933. Before ALSCHULER, EVANS, and SPARKS, Circuit Judges. Walter Hamilton, of Chicago, 111., for appellant. John C. Melaniphy, of Chicago, 111., for appellee. SPARKS, Circuit Judge (after stating the facts as above). Appellant contends that the court erred in entering the restraining order because: (1) The note, assignment of wages, and notice of such assignment, under the law of Illinois, created a lien on the wages of bankrupt after adjudication, when and as such wages were earned, and that lien was not discharge-able in bankruptey; (2) the wages included in the restraining order constituted no part of bankrupt’s estate, and appellant had instituted no suit of any kind for their recovery prior to the issuance of the order, nor had it made any threat to collect the same; (3) .the circuit court of Cook county had assumed jurisdiction of the siTbjeet matter of the restraining order and of the parties prior to the issuance of the order, and the district court had no authority under the bankruptey act to issue it. It is not denied that the decisions of the Supreme Court of Illinois hold that an assignment of future wages made more than four months prior to adjudication in bankruptcy to secure any indebtedness creates a lien on such wages. Mallin v. Wenham, 209 Ill. 252, 70 N. E. 564, 65 L. R. A. 602, 101 Am. St. Rep. 233; Monarch Discount Co. v. Chesapeake & Ohio Ry. Co., 285 Ill. 233, 120 N. E. 743. If this doctrine is to be considered as controlling this court in the instant case, then of course appellant’s first contention is correct; but appellee on the other hand contends: (1) That the decisions of the state courts are not binding on the federal courts in the determination of what is property under the Bankruptcy Act; and (2) that the decisions of the Illinois court are contrary to the weight of reason and authority of federal and other state courts which hold that wages to be earned in the future are not property upon which a lien may attach. Future wages are conditional in their nature, being dependent upon performance of the services to be rendered. It follow# therefore that an assignment given against such wages cannot create a legal lien since there is no property in being at the time the assignment is given. The lien must therefore be an equitable one which cannot attach until the property comes into being. If in the meantime the debt has been discharged by the action in bankruptcy, the lien falls. Appellant argues that this court is precluded from holding thus by reason of the Illinois decisions to the contrary which it asserts are binding upon this court. Those decisions constitute a local definition of principles applying to a situation which is not limited to this state, but which has arisen in many of the states. The decisions do not depend upon statutory law, but upon the local interpretation of general law. Further, since bankruptey is itself an equitable proceeding as is the interpretation of an equitable lien, we think this court is not bound by the decisions of the state court under the principles laid down in Swift v. Tyson, 16 Pet. 1, 18, 10 L. Ed. 865, and Guffey v. Smith, 237 U. S. 101, 114, 35 S. Ct. 526, 59 L. Ed. 856. While we find no ease in which the Supreme Court has passed on the specific question involved in the instant ease, nevertheless it has in several cases laid down certain broad principles regarding the interpretation of the Bankruptcy Act which we think control our decision here. In Board of Trade v. Johnson, 264 U. S. 1, 44 S. Ct. 232, 234, 68 L. Ed. 533, it said, “Of course, where the Bankrupt Law deals with property rights which are regulated by the state law, the federal courts in bankruptcy will follow the state courts; but when the language of Congress indicates a policy requiring a broader construction of the statute than the state decisions would give it, federal courts cannot be concluded by them. Board of Trade v. Weston, 156 C. C. A. 112, 243 F. 332.” In the Weston Case just cited, the court said, “Now, it would be strange if the dominant grant to Congress to legislate upon bankruptcy and insolvency, and which, when exercised, supersedes state legislation respecting these matters, should nevertheless be subordinate to the right of each state to determine what is or shall be property, subject to the terms of the Bankruptcy Act.” In Williams v. U. S. Fidelity & Guaranty Co., 236 U. S. 549, 35 S. Ct. 289, 290, 59 L. Ed. 713, the court said, “It is the purpose of the'Bankrupt Act [11 USCA] to convert the assets of the bankrupt into cash for distribution among creditors, and then to relieve the honest debtor from the weight of oppressive indebtedness, and permit him to start afresh free from the obligations and responsibilities. ® * * And nothing is better settled than that statutes should be sensibly construed, with a view to effectuating the legislative intent.” In Re Voorhees (D. C.) 41 F.(2d) 81, 85, an Ohio statute as to assignment of wages was held not controlling in bankruptcy proceedings, and the court said, “It seems to us that any state law which attempted to create a lien upon such property or earnings so as to be effective and operative after the discharge of the bankrupt would be construed by the federal courts to be ineffective for that purpose. * * * It seems to us that the purpose of the Bankruptcy Act is plain, and that any device, whether an assignment, * * * or what not, would be ineffectual against its purpose to give the bankrupt a new start.” The weight of authority supports appellee’s contention that wages to be earned in the future are not property upon which a lien may attach prior to their existence. A different rule, however, was enunciated in Mallin v. Wenham, 209 Ill. 252, 70 N. E. 564, 65 L. R. A. 602, 101 Am. St. Rep. 233, and Citizens’ Loan Ass’n v. Boston & M. Ry. Co., 196 Mass. 528, 82 N. E. 696, 14 L. R. A. (N. S.) 1025, 124 Am. St. Rep. 584, 13 Ann. Cas. 365. With the rule and the reasoning therein announced we are not in accord. This being true we hold that appellant, at the time of the adjudication in bankruptcy, had no lien upon the bankrupt’s wages which had not at that time been earned, nor upon such wages as and when they were earned. It may he conceded, as contended by appellant, that the wages included in the restraining order constituted no part of the bankrupt’s estate at the time of the adjudication. That estate, and none other, the court was hound to administer; hut it does not follow from this admission that the bankruptcy court is not interested in the protection of the bankrupt’s subsequent estate. Indeed, quite the converse is true, and constitutes the primary purpose of the bankruptcy enactment. That the bankruptcy court has plenary power to award that protection by injunction we think there can be no doubt, otherwise the effect of the Bankruptcy Act oftentimes might be destroyed. 11 USCA § 11, subd. 15; Seaboard Small Loan Corp. v. Ottinger, supra; In re Fellows (D. C.) 43 F. (2d) 122; In re Voorhees, supra; In re Swofford Bros. (D. C.) ISO F. 549; In re Home Discount Co., supra. Appellant’s contention that prior to the restraining order there were no actions or threats on its part relative to the enforcement of its alleged lien sufficient to authorize or warrant the issue of the order is without merit. Its service of notice of the assignment upon the employer and its answer to the interpleader were sufficient to warrant the court’s action in that respect. Decree affirmed. “But, admitting the doctrine to he fully settled in New York, it* remains to be considered, whether it is obligatory upon this court, if it differs from the principles established in the general commercial law. It is observable, that the courts of New York do not found their decisions upon this point, upon any local statute, or positive, fixed or ancient local usage; but they deduce the doctrine from the general principles of commercial law. It is, however, contended, that the 34th section of the judiciary act of 1783 [28 USCA § 725] • * furnishes a rule obligatory upon this court to follow the decisions of the state tribunals in all cases to which they apply. That section provides ‘that the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision, in trials at common law, in the courts of the United States, in cases where they apply.’ In order to maintain the argument, it is essential * * ” to hold, that the word ‘laws,’ in this section, includes within the scope of its meaning, the decisions of the local tribunals. In the ordinary use of language, it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not, of themselves, laws. They are often re-examined, reversed and qualified by the courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws. In all the various cases * * * this court have uniformly supposed, that the true interpretation * * * limited its application to state laws, strictly local * * * and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intra-territorial in their nature and character. It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes, * * * as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain, upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. * * ¥ Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this court; but they cannot furnish positive* rules, or conclusive authority, by which our own judgments are to be bound up and governed.” Guffey v. Smith, 237 U. S. 101, 35 S. Ct. 526, 530, 69 Li. Ed. 856. “ * By the legislation of Congress and repeated decisions of this court it has long been settled that the remedies afforded and modes of proceeding pursued in the Federal courts, sitting as courts of equity, are not determined by local laws or rules of decision, but by general principles, rules and usages of equity having uniform operation in those courts wherever sitting. v ‘Wherever a case in equity may arise and be determined, under the judicial power of the United States, the same principles of equity must be applied to it, and it is for the courts of the United States, and for this court in the last resort, to decide what those principles are, and to apply such of them, to each particular case as they may find justly applicable. Neves v. Scott; 13 How. 268, 14 L. Ed. 140.” Seaboard Small Loan Corporation v. Ottinger (C. C. A.) 50 F. (2d) 856, 77 A. L. R. 956 ; In re West (D. C.) 128 F. 205; In re Karns (D. C.) 148 F. 143; In re Ludeke (D. C.) 171 F. 292; In re Home Discount Co. (D. C.) 147 F. 538; In re Lineberry (D. C.) 183 F. 338; In re Voorhees (D. C.) 41 F.(2d) 81; In re Fellows (D. C.) 43 F.(2d) 122; In re Potts (D. C.) 54 F. (2d) 144; Levi v. Loevenhart, 138 Ky. 133, 127 S. W. 748, 30 L. R. A. (N. S.) 375, 137 Am. St. Rep. 377; Leitch v. No. Pac. Ry. Co., 95 Minn. 35, 103 N. W. 704, 5 Ann. Cas. 63; Rate v. American Smelting & Refining Co., 56 Mont. 277, 184 P. 478; Hupp v. Union Pac. Ry. Co., 99 Neb. 654, 157 N. W. 343, L. R. A. 1916E, 247; Rowe v. Public Finance Co., 37 Ohio App. 133, 174 N. E. 164. See also 1 Collier on Bankruptcy (13th Ed.) 600, and 7 Corpus Juris, p. 411. Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_habeas	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts. KIELEMA v. CROSSMAN, Immigration Inspector. No. 8963. Circuit Court of Appeals, Fifth Circuit. April 21, 1939. Arthur J. Mandell, of Houston, Tex., for appellant. Douglas W. McGregor, U. S. Atty., and Brian S. Odem, Asst. U. S. Atty., both of Houston, Tex., for appellee. Before FOSTER, HUTCHESON, and McCORD, Circuit Judges. McCORD, Circuit Judge. Mees Kielema, an alien, was arrested and taken into custody by the United States Immigration Inspector at Houston, Texas, on August 24, 1936. After a prolonged hearing the Assistant Secretary of Labor issued a warrant on January 14, 1938, directing the deportation of Kielema to The Netherlands. On April 11, 1938, Kielema petitioned the District Court for a writ of habeas corpus. The court discharged the writ on April 20, 1938, and remanded Kielema to the custody of the Immigration Inspector for deportation. From the order of dismissal Kielema has taken this appeal. Following his arrest Kielema was advised that he was to be accorded a hearing and the warrant of arrest was read and explained to him. The warrant charged that “he has been found managing a house of prostitution, or music or dance hall or other place of amusement, habitually frequented by prostitutes, or where prostitutes gather. That he has been found receiving, sharing in, or deriving benefit from the earnings of a prostitute” in violation of 8 U.S.C.A. § 155. Kielema was advised that he had the right to be represented by counsel. Thereupon, he was immediately released and his hearing set for August 25, 1936. He employed counsel and they appeared at the hearing. At the request of his newly acquired counsel the hearing was again continued. When the case was resumed on September 3, 1936, the charges were again explained to the alien in the presence of his counsel and the evidence was presented upon which the warrant of arrest was issued. This evidence consisted of the sworn statements of Grace Joliff Roberson and Thelma Parker. The Immigration Inspector produced the witnesses who had made the ex parte affidavits. These witnesses identified their respective statements and were then fully cross-examined by appellant’s counsel. Kielema was given the opportunity to produce evidence and witnesses in his own behalf which he did. Kielema contends that he was not given a fair hearing before the immigration authorities. Fie attacks the ex parte statements of the witnesses and asserts that there was no substantial evidence to support the warrant of deportation. In a deportation proceeding the alien must be accorded a fair hearing. To render a hearing unfair, the defect or practice complained of must have been such as might have led to a denial of justice, or there must have been absent an element deemed essential to due process. The charge of unfairness in this proceeding is without support. The alien was fully advised of the charges against him; was advised of his right to have counsel, and was given the opportunity to cross-examine adverse witnesses. He produced witnesses in his own behalf, and was given numerous continuances and delays in which to prepare his case and secure counsel. This was not denial of a fair hearing. Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221; Tisi v. Tod, 264 U.S. 131, 44 S.Ct. 260, 68 L. Ed. 590; Hays v. Zahariades, 8 Cir., 90 F. 2d 3; Chiuye Inouye v. Carr, 9 Cir., 98 F.2d 46; Murdoch v. Clark, 1 Cir., 53 F. 2d 155. The credibility of the witnesses and the weight of their testimony was for the immigration authorities. On habeas corpus, if‘the petitioner has been given a fair trial, the court will not disturb the findings of fact of the immigration authorities if such findings are supported by substantial evidence. There was substantial evidence Jo support the findings and deportation order. Lindsey v. Dobra, 5 Cir., 62 F.2d 116; Ranieri v. Smith, 7 Cir., 49 F.2d 537; Jew Hong Sing v. Tillinghast, 1 Cir., 35 F.2d. 559. The judgment is affirmed. Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus? A. no B. yes, state habeas corpus (criminal) C. yes, federal habeas corpus (criminal) D. yes, federal habeas corpus relating to deportation 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. GLIDDEN COMPANY v. ZDANOK et al. No. 242. Argued February 21, 26, 1962. Decided June 25, 1962. Chester Bordean argued the cause for petitioner in No. 242. With him on the briefs was William P. Smith. Morris Shapiro argued the cause for respondents in No. 242. With him on the briefs was Harry Katz. Solicitor General Cox argued the cause for the United States, as intervenor, in No. 242. With him on the brief were Assistant Attorney General Miller, Oscar H. Davis and Philip R. Monahan. By special leave of Court, 368 U. S. 973, Francis M. Shea argued the cause in No. 242 for the Chief Judge and Associate Judges of the United States Court of Claims, as amici curiae, urging affirmance. With him on the briefs was Richard T. Conway. Briefs of amici curiae, in support of the petition in No. 242, were filed by William B. Barton for the Chamber of Commerce of the United States; John E. Branch for the Georgia State Chamber of Commerce; Henry E. Sey-farth for the Illinois State Chamber of Commerce; Edward C. First, Jr. and Gilbert Nurick for the Pennsylvania State Chamber of Commerce; Frank C. Heath for the Chamber of Commerce of the City of Cleveland, Ohio ; Charles H. Tuttle for the American Spice Trade Association; Carl M. Gould for the California Manufacturers Association; Ashley Sellers and Jesse E. Baskette for the National Association of Margarine Manufacturers; and Daniel S. Ring for the National Paint, Varnish and Lacquer Association, Inc. Eugene Gressman argued the cause and filed briefs for petitioner in No. 481. Solicitor General Cox argued the cause for the United States in No. 481. With him on the brief were Assistant Attorney General Miller, Oscar H. Davis, Beatrice Rosenberg and Philip R. Monahan. By special leave of Court, Roger Robb argued the cause and filed a brief in No. 481 for the Chief Judge and Associate Judges of the United States Court of Customs and Patent Appeals, as amici curiae, urging affirmance. Together with No. 481, Lurk v. United States, on certiorari to the United States Court of Appeals for the District of Columbia Circuit, argued February 21, 1962. MR. Justice Harlan announced the judgment of the Court and an opinion joined by Mr. Justice Brennan and Mr. Justice Stewart. In Ex parte Bakelite Corp., 279 U. S. 438, and Williams v. United States, 289 U. S. 553, this Court held that the United States Court of Customs and Patent Appeals and the United States Court of Claims were neither confined in jurisdiction nor protected in independence by Article III of the Constitution, but that both had been created by virtue of other, substantive, powers possessed by Congress under Article I. The Congress has since pronounced its disagreement by providing as to each that “such court is hereby declared to be a court established under article III of the Constitution of the United States.” The petitioners in these cases invite us to reaffirm the authority of our earlier decisions, and thus hold for naught these congressional pronouncements, at least as sought to be applied to judges appointed prior to their enactment. No. 242 is a suit brought by individual employees in a New York state court to recover damages for breach of a collective bargaining agreement, and removed to the Federal District Court for the Southern District of New York by the defendant employer on the ground of diversity of citizenship. The employees’ right to recover was sustained by a divided panel of the Court of Appeals, in an opinion by Judge J. Warren Madden, then an active judge of the Court of Claims sitting by designation of the Chief Justice of the United States under 28 U. S. C. § 293 (a). No. 481 is a criminal prosecution instituted in the United States District Court for the District of Columbia and resulting in a conviction for armed robbery. The trial was presided over by Judge Joseph R. Jackson, a retired judge of the Court of Customs and Patent Appeals sitting by similar designation. The petitioner’s application for leave to appeal to the Court of Appeals in forma pauperis, respecting the validity of this designation and alleged trial errors, was upheld by this Court last Term, 366 U. S. 712; we are now asked to review the Court of Appeals’ affirmance of his conviction. Because of the significance of the “designation” issue for the federal judicial system, we granted certiorari in the two cases, 368 U. S. 814, 815, limited to the question whether the judgment in either was vitiated by the respective participation of the judges named. The claim advanced by the petitioners, that they were denied the protection of judges with tenure and compensation guaranteed by Article III, has nothing to do with the manner in which either of these judges conducted himself in these proceedings. No contention is made that either Judge Madden or Judge Jackson displayed a lack of appropriate judicial independence, or that either sought by his rulings to curry favor with Congress or the Executive. Both indeed enjoy statutory assurance of tenure and compensation, and were it not for the explicit provisions of Article III we should be quite unable to say that either judge’s participation even colorably denied the petitioners independent judicial hearings. Article III, § 1, however, is explicit and gives the petitioners a basis for complaint without requiring them to point to particular instances of mistreatment in the record. It provides: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” Apart from this provision, it is settled that neither the tenure nor salary of federal officers is constitutionally protected from impairment by Congress. Crenshaw v. United States, 134 U. S. 99, 107-108; cf. Butler v. Pennsylvania, 10 How. 402, 416-418. The statutory declaration, therefore, that the judges of these two courts should serve during good behavior and with undiminished salary, see note 5, supra, was ineffective to bind any subsequent Congress unless those judges were invested at appointment with the protections of Article III. United States v. Fisher, 109 U. S. 143, 145; see McAllister v. United States, 141 U. S. 174, 186. And the petitioners naturally point to the Bakelite and Williams cases, supra, as establishing that no such constitutional protection was in fact conferred. The distinction referred to in those cases between “constitutional” and “legislative” courts has been productive of much confusion and controversy. Because of the highly theoretical nature of the problem in its present context, we would be well advised to decide these cases on narrower grounds if any are fairly available. But for reasons that follow, we find ourselves unable to do so. I. No challenge to the authority of the judges was filed in the course of the proceedings before them in either case. The Solicitor General, who submitted briefs and arguments for the United States, has seized upon this circumstance to suggest that the petitioners should be precluded by the so-called de facto doctrine from questioning the validity of these designations for the first time on appeal. Whatever may be the rule when a judge’s authority is challenged at the earliest practicable moment, as it was in United States v. American-Foreign S. S. Corp., 363 U. S. 685, in other circumstances involving judicial authority this Court has described it as well settled “that where there is an office to be filled and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto and binding upon the public.” McDowell v. United States, 159 U. S. 596, 602. The rule is founded upon an obviously sound policy of preventing litigants from abiding the outcome of a lawsuit and then overturning it if adverse upon a technicality of which they were previously aware. Although a United States Attorney may be permitted on behalf of the public to upset an order issued upon defective authority, Frad v. Kelly, 302 U. S. 312, a private litigant ordinarily may not. Ball v. United States, 140 U. S. 118, 128-129. The rule does not obtain, of course, when the alleged defect of authority operates also as a limitation on this Court’s appellate jurisdiction. Ayrshire Collieries Corp. v. United States, 331 U. S. 132 (three-judge court); United States v. Emholt, 105 U. S. 414 (certificate of divided opinion). In other circumstances as well, when the statute claimed to restrict authority is not merely technical but embodies a strong policy concerning the proper administration of judicial business, this Court has treated the alleged defect as “jurisdictional” and agreed to consider it on direct review even though not raised at the earliest practicable opportunity. E. g., American Construction Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372, 387-388. A fortiori is this so when the challenge is based upon nonfrivolous constitutional grounds. In McDowell v. United States itself, supra, at 598-599, the Court, while, holding that any defect in statutory authorization for a particular intracircuit assignment was immunized from examination by the de facto doctrine, specifically passed upon and upheld the constitutional authority of Congress to provide for such an assignment. And in Lamar v. United States, 241 U. S. 103, 117-118, the claim that an intercircuit assignment violated the criminal venue restrictions of the Sixth Amendment and usurped the presidential appointing power under Art. II, § 2, was heard here and determined upon its merits, despite the fact that it had not been raised in the District Court or in the Court of Appeals or even in this Court until the filing of a supplemental brief upon a second request for review. The alleged defect of authority here relates to basic constitutional protections designed in part for the benefit of litigants. See O’Donoghue v. United States, 289 U. S. 516, 532-534. It should be examinable at least on direct review, where its consideration encounters none of the objections associated with the principle of res judicata, that there be an end to litigation. At the most is weighed in opposition the disruption to sound appellate process entailed by entertaining objections not raised below, and that is plainly insufficient to overcome the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers. So this Court has con-eluded on an analogous balance struck to protect against intruding federal jurisdiction into the area constitutionally reserved to the States: Whether diversity of citizenship exists may be questioned on direct review for the first time in this Court. Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382; City of Gainesville v. Brown-Crummer Investment Co., 277 U. S. 54, 59. We hold that it is similarly open to these petitioners to challenge the constitutional authority of the judges below. II. The Court of Appeals for the District of Columbia found it unnecessary to reach the question whether Judge Jackson enjoyed constitutional security of tenure and compensation. It held that even if he did not, Congress might authorize his assignment to courts in the District of Columbia, by virtue of its power “To exercise exclusive Legislation in all Cases whatsoever” over the District. Art. I, § 8, cl. 17. The Solicitor General, in support of that ruling, argues here that because the criminal charge against petitioner Lurk was violation of a local statute, D. C. Code, 1961, § 22^2901, rather than of one national in application, its trial did not require the assignment of an Article III judge. The question thus raised is itself of constitutional dimension, and one which we need not reach if an Article III judge was in fact assigned. In the companion case, No. 242, the necessity for such a judge is uncontested. The Court of Appeals for the Second Circuit sat to determine a question of state contract law presented for its decision solely by reason of the diverse citizenship of the litigants. Authority for the Federal Government to decide questions of state law exists only by virtue of the Diversity Clause in Article III. Erie R. Co. v. Tompkins, 304 U. S. 64; see Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 284. For this reason, the question whether Judge Madden enjoyed constitutional independence is inescapably presented. Since decision of that question involves considerations bearing directly upon the constitutional status of Judge Jackson, we deem it appropriate to dispose of both cases on the same grounds, without at present intimating any view as to the correctness of the holding below by the Court of Appeals for the District of Columbia. III. The next question is whether the character of the judges who sat in these cases may be determined without reference to the character of the courts to which they were originally appointed. If it were plain that these judges were invested upon confirmation with Article III tenure and compensation, it would be unnecessary for present purposes to consider the constitutional status of the Court of Claims and the Court of Customs and Patent Appeals. No such course, however, appears to be open. The statutes under which Judge Madden and Judge Jackson were appointed speak of service only on those courts. 28 U. S. C. §§ 171, 211. They were not, as were the judges selected for the late Commerce Court, appointed as “additional circuit judges,” Act of June 18, 1910, c. 309, 36 Stat. 539, 540, whose tenure might be constitutionally secured regardless of the fortunes of their courts. See 50 Cong. Rec. 5409-5418 (1913); Donegan v. Dyson, 269 U. S. 49; Frankfurter and Landis, The Business of the Supreme Court (1927), 168-173. It is true that at the time of Judge Jackson’s appointment there was in force a statute authorizing assignment of Court of Customs and Patent Appeals judges to serve on the courts of the District of Columbia. Act of September 14, 1922, c. 306, § 5, 42 Stat. 837, 839. At that time, however, before the O’Donoghue decision, there seems to have been a consensus that the courts of the District were not confined or protected by Article III; as late as 1930, this Court regarded it as “recognized that the courts of the District of Columbia are not created under the judiciary article of the Constitution but are legislative courts . . . .” Federal Radio Comm’n v. General Electric Co., 281 U. S. 464, 468; and see Katz, Federal Legislative Courts, 43 Harv. L. Rev. 894, 899-903 (1930). The 1922 Act cannot therefore be viewed ex proprio vigore as conferring Article III status on judges subsequently appointed to the Court of Customs and Patent Appeals. A more novel suggestion is that the assignment statute itself, 28 U. S. C. §§ 291-296, authorized the Chief Justice to appoint inferior Article III judges in the course of designating them for service on Article III courts. See Shartel, Federal Judges — Appointment, Supervision, and Removal — Some Possibilities under the Constitution, 28 Mich. L. Rev. 485 (1930); cf. Ex parte Siebold, 100 U. S. 371, 397-398; Rice v. Ames, 180 U. S. 371, 378. But we need not consider the constitutional questions involved in this suggestion, for the statute does not readily lend itself to such a construction. If nothing else, the authority given the Chief Justice in 28 U. S. C. § 295 to revoke assignments previously made is wholly inconsistent with a reading of the statute as empowering him to appoint inferior Article III judges. Judges assigned by the Chief Justice who are not previously endowed with constitutional security of tenure and compensation thus can gain nothing by the designation. It is significant that Congress did not enact the present broad assignment statute until after it had declared the Court of Claims and the Court of Customs and Patent Appeals to be constitutional courts. Act of August 25, 1958, 72 Stat. 848. A major purpose of these declarations was to eliminate uncertainty whether regular Article III judges might be assigned to assist in the business of those courts when disability or disqualification made it difficult for them to obtain a quorum. Those doubts, suggested by dicta in Ex parte Bakelite Corp., 279 U. S. 438, 460, would be expanded rather than allayed were we to hold that the judges of the Court of Claims and the Court of Customs and Patent Appeals enjoy the protections of Article III while leaving at large the status of those courts. For these various reasons, the constitutional quality of tenure and compensation extended Judges Madden and Jackson at the time of their confirmation must be deemed to have depended upon the constitutional status of the courts to which they were primarily appointed. IV. In determining the constitutional character of the Court of Claims and the Court of Customs and Patent Appeals, as we are thus led to do, we may not disregard Congress’ declaration that they were created under Article III. Of course, Congress may not by fiat overturn the constitutional decisions of this Court, but the legislative history of the 1953 and 1958 declarations makes plain that it was far from attempting any such thing. Typical is a statement in the 1958 House Report that the purpose of the legislation was to “declare which of the powers Congress was intending to exercise when the court was created.” H. R. Rep. No. 2349, 85th Cong., 2d Sess. 3 (1958); accord, H. R. Rep. No. 695, 83d Cong., 1st Sess. 3, 5, 7 (1953); and see S. Rep. No. 275, 83d Cong., 1st Sess. 2 (1953), substituted for S. Rep. No. 261, 83d Cong., 1st Sess. 2 (1953); 99 Cong. Rec. 8943, 8944 (1953) (remarks of Senator Gore). “Subsequent legislation which declares the intent of an earlier law,” this Court has noted, “is not, of course, conclusive in determining w'hat the previous Congress meant. But the later law is entitled to weight when it comes to the problem of construction.” Federal Housing Administration v. Darlington, Inc., 358 U. S. 84, 90; accord, New York, P. & N. R. Co. v. Peninsula Exchange, 240 U. S. 34, 39. Especially is this so when the Congress has been stimulated by decisions of this Court to investigate the historical materials involved and has drawn from them a contrary conclusion. United States v. Hutcheson, 312 U. S. 219, 235-237. As examination of the House and Senate Reports makes evident, that is what occurred here. E. g., S. Rep. No. 2309, 85th Cong., 2d Sess. 2-3 (1958); H. R. Rep. No. 695, 83d Cong., 1st Sess. 3-5 (1953). At the time when Bakelite and Williams were decided, the Court did not have the benefit of this congressional understanding. The Williams case, for example, arose under the Legislative Appropriation Act of June 30, 1932, c. 314, § 107 (a)(5), 47 Stat. 382, 402, which reduced the salary of all judges “except judges whose compensation may not, under the Constitution, be diminished during their continuance in office.” Mr. Justice Sutherland, who wrote the Court’s opinions in both Williams and O’Don-oghue, was plainly disadvantaged by the absence of congressional intimation as to which judges of which courts were to be deemed exempted. See O’Donoghue v. United States, 289 U. S. 516, 529. In the Bakelite case, to be sure, Mr. Justice Van De-vanter said of an argument drawn from tenuous evidence of congressional understanding that it “mistakenly assumes that whether a court is of one class or the other depends on the intention of Congress, whereas the true test lies in the power under which the court was created and in the jurisdiction conferred.” 279 U. S., at 459. Yet he would hardly have denied that explicit evidence of legislative intendment concerning the factors he thought controlling may be relevant and indeed highly persuasive. In any event, the Bakelite dictum did not embarrass the Court in deciding O’Donoghue, where it looked searchingly at “congressional practice” to determine what classification that body “recognizes.” 289 U. S., at 548-550. We think the forthright statement of understanding embraced in the 1953 and 1958 declarations may be taken as similarly persuasive evidence for the problem now before us. To give due weight to these congressional declarations is not of course to compromise the authority or responsibility of this Court as the ultimate expositor of the Constitution. The Bakelite and Williams decisions have long been considered of questionable soundness. See, e. g., Brown, The Rent in Our Judicial Armor, 10 G. W. L. Rev. 127 (1941); Hart and Wechsler, The Federal Courts and the Federal System (1953), 348-351; 1 Moore, Federal Practice (2d ed. 1961), 71 n. 21. They stand uneasily next to O’Donoghue, much of whose reasoning in sustaining the Article III status of the District of Columbia superior courts seems applicable to the Court of Claims and the Court of Customs and Patent Appeals. In Pope v. United States, 323 U. S. 1, 13-14, where the Solicitor General argued at length against the continued vitality of Bakelite and Williams, their authority was regarded as an open question. Furthermore, apart from this Court’s considered practice not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases, e. g., United States v. South Buffalo R. Co., 333 U. S. 771, 774-775; see Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 405-408 and n. 1-3 (Brandéis, J., dissenting), there is the fact that Congress has acted on its understanding and has provided for assignment of judges who have made decisions that are now said to be impeachable. In these circumstances, the practical consideration underlying the doctrine of stare decisis — protection of generated expectations — actually militates in favor of reexamining the decisions. We are well-advised, therefore, to regard the questions decided in those cases as entirely open to reconsideration. Y. The Constitution nowhere makes reference to “legislative courts.” The power given Congress in Art. I, § 8, cl. 9, “To constitute Tribunals inferior to the supreme Court,” plainly relates to the “inferior Courts” provided for in Art. Ill, § 1; it has never been relied on for establishment of any other tribunals. The concept of a legislative court derives from the opinion of Chief Justice Marshall in American Insurance Co. v. Canter, 1 Pet. 511, dealing with courts established in a territory. A cargo of cotton salvaged from a wreck off the coast of Florida had been purchased by Canter at a judicial sale ordered by a court at Key West invested by the territorial legislature with jurisdiction over cases of salvage. The insurers, to whom the property in the cargo had been abandoned by the owners, brought a libel for restitution, claiming in part that the prior decree was void because not rendered in a court created by Congress, as required for the exercise of admiralty jurisdiction under Article III. Chief Justice Marshall for the Court swept this objection aside by noting that the Superior Courts of Florida, which had been created by Congress, were staffed with judges appointed for only four years, and concluded that Article III did not apply in the territories: “These Courts, then, are not constitutional Courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States.” 1 Pet., at 546. By these arresting observations the Chief Justice certainly did not mean to imply that the case heard by the Key West court was not one of admiralty jurisdiction otherwise properly justiciable in a Federal District Court sitting in one of the States. Elsewhere in the opinion he distinctly referred to the provisions of Article III to show that it was such a case. 1 Pet., at 545. All the Chief Justice meant, and what the case has ever after been taken to establish, is that in the territories cases and controversies falling within the enumeration of Article III may be heard and decided in courts constituted without regard to the limitations of that article; courts, that is, having judges of limited tenure and entertaining business beyond the range of conventional cases and controversies. The reasons for this are not difficult to appreciate so long as the character of the early territories and some of the practical problems arising from their administration are kept in mind. The entire governmental responsibility in a territory where there was no state government to assume the burden of local regulation devolved upon the National Government. This meant that courts had to be established and staffed with sufficient judges to handle the general jurisdiction that elsewhere would have been exercised in large part by the courts of a State. But when the territories began entering into statehood, as they soon did, the authority of the territorial courts over matters of state concern ceased; and in a time when the size of the federal judiciary was still relatively small, that left the National Government with a significant number of territorial judges on its hands and no place to put them. When Florida was admitted as a State, for example, Congress replaced three territorial courts of general jurisdiction comprising five judges with one Federal District Court and one judge. At the same time as the absence of a federal structure in the territories produced problems not foreseen by the Framers of Article III, the realities of territorial government typically made it less urgent that judges there enjoy the independence from Congress and the President envisioned by that article. For the territories were not ruled immediately from Washington; in a day of poor roads and slow mails, it was unthinkable that they should be. Rather, Congress left municipal law to be developed largely by the territorial legislatures, within the framework of organic acts and subject to a retained power of veto. The scope of self-government exercised under these delegations was nearly as broad as that enjoyed by the States, and the freedom of the territories to dispense with protections deemed inherent in a separation of governmental powers was as fully recognized. Against this historical background, it is hardly surprising that Chief Justice Marshall decided as he did. It would have been doctrinaire in the extreme to deny the right of Congress to invest judges of its creation with authority to dispose of the judicial business of the territories. It would have been at least as dogmatic, having recognized the right, to fasten on those judges a guarantee of tenure that Congress could not put to use and that the exigencies of the territories did not require. Marshall chose neither course; conscious as ever of his responsibility to see the Constitution work, he recognized a greater flexibility in Congress to deal with problems arising outside the normal context of a federal system. The same confluence of practical considerations that dictated the result in Canter has governed the decision in later cases sanctioning the creation of other courts with judges of limited tenure. In United States v. Coe, 155 U. S. 76, 85-86, for example, the Court sustained the authority of the Court of Private Land Claims to adjudicate claims under treaties to land in the territories, but left it expressly open whether such a course might be followed within the States. The Choctaw and Chickasaw Citizenship Court was similarly created to determine questions of tribal membership relevant to property claims within Indian territory under the exclusive control of the National Government. See Stephens v. Cherokee Nation, 174 U. S. 445; Ex parte Joins, 191 U. S. 93; Wallace v. Adams, 204 U. S. 415. Upon like considerations, Article III has been viewed as inapplicable to courts created in unincorporated territories outside the mainland, Downes v. Bidwell, 182 U. S. 244, 266-267; Balzac v. Porto Rico, 258 U. S. 298, 312-313; cf. Dorr v. United States, 195 U. S. 138, 145, 149, and to the consular courts established by concessions from foreign countries, In re Ross, 140 U. S. 453, 464-465, 480. The touchstone of decision in all these cases has been the need to exercise the jurisdiction then and there and for a transitory period. Whether constitutional limitations on the exercise of judicial power have been held inapplicable has depended on the particular local setting, the practical necessities, and the possible alternatives. When the peculiar reasons justifying investiture of judges with limited tenure have not been present, the Canter holding has not been deemed controlling. O’Donoghue v. United States, 289 U. S. 516, 536-539. Since the conditions obtaining in one territory have been assumed to exist in each, this Court has in the past entertained a presumption that even those territorial judges who have been extended statutory assurances of life tenure and undiminished compensation have been so favored as a matter of legislative grace and not of constitutional compulsion. McAllister v. United States, 141 U. S. 174, 186. By a parity of reasoning, however, the presumption should be reversed when Congress creates courts the continuing exercise of whose jurisdiction is unembarrassed by such practical difficulties. See Mookini v. United States, 303 U. S. 201, 205. As the Bakelite and Williams opinions recognize, the Court of Claims and the Court of Customs and Patent Appeals were created to carry into effect powers enjoyed by the National Government over subject matter — roughly, payment of debts and collection of customs revenue — and not over localities. What those opinions fail to deal with is whether that distinction deprives American Insurance Co. v. Canter of controlling force. The Bakelite opinion did not inquire whether there might be such a distinction. After sketching the history of the territorial and consular courts, it continued at once: “Legislative courts also may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it.” 279 U. S., at 451. Since in the Court’s view the jurisdiction conferred on both the Court of Claims and the Court of Customs and Patent Appeals included “nothing which inherently or necessarily requires judicial determination,” both could have been and were created as legislative courts. We need not pause to assess the Court’s characterization of the jurisdiction conferred on those courts, beyond indicating certain reservations about its accuracy. Nor need we now explore the extent to which Congress may commit the execution of even “inherently” judicial business to tribunals other than Article III courts. We may and do assume, for present purposes, that none of the jurisdiction vested in our two courts is of that sort, so that all of it might be committed for final determination to non-Article III tribunals, be they denominated legislative courts or administrative agencies. But because Congress may employ such tribunals assuredly does not mean that it must. This is the crucial non sequitur of the Bakelite and Williams opinions. Each assumed that because Congress might have assigned specified jurisdiction to an administrative agency, it must be deemed to have done so even though it assigned that jurisdiction to a tribunal having every appearance of a court and composed of judges enjoying statutory assurances of life tenure and undiminished compensation. In so doing, each appears to have misunderstood the thrust of the celebrated observation by Mr. Justice Curtis, that . . there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.” Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284. This passage, cited in both the Bakelite and Williams opinions, plainly did not mean that the matters referred to could not be entrusted to Article III courts. Quite the contrary, the explicit predicate to Justice Curtis’ argument was that such courts could exercise judicial power over such cases. For the very statute whose authorization of summary distress proceedings was sustained in the Murray case, also authorized the distrainee to bring suit to arrest the levy against the United States in a Federal District Court. And as to this, the author of the opinion stated, just before his more trenchant remark quoted above: “The United States consents that this fact of indebtedness may be drawn in question by a suit against them. Though they might have withheld their consent, we think that, by granting it, nothing which may not be a subject of judicial cognizance is brought before the court.” Thus Murray’s Lessee, far from furnishing authority against the proposition that the Court of Claims is a constitutional court, actually supports it. To deny that Congress may create tribunals under Article III for the sole purpose of adjudicating matters that it might have reserved for legislative or executive decision would be to deprive it of the very choice that Mr. Justice Curtis insisted it enjoys. Of course possession of the choice, assuming it is coextensive with the range of matters confided to the courts, subjects those courts to the continuous possibility that their entire jurisdiction may be withdrawn. See Williams v. United States, 289 U. S. 553, 580-581. But the threat thus facing their independence is not in kind or effect different from that sustained by all inferior federal courts. The great constitutional compromise that resulted in agreement upon Art. Ill, § 1, authorized but did not obligate Congress to create inferior federal courts. I Farrand, The Records of the Federal Convention (1911), 118, 124 — 1 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_method	I	What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc. MILLER v. UNION PAC. R. CO. No. 9554. Circuit Court of Appeals, Eighth Circuit. Feb. 17, 1933. „ , . „ . , M . r,, Rehearing Denied March 24, 1933. Martin J. O’Donnell, of Kansas City, Mo. (George H. Kelly and William Buchholzboth of Kansas City, Mo., on the brief), for appellant. C. V. Garnett, of Kansas City, Mo. (T. T. M. Lillard and Bruce Hurd, both of Topeka, Kan., and Charles E. Whittaker and Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City, Mo., on the brief), for appellee. Before KENYON, GARDNER, and SANBORN, Circuit Judges. GARDNER, Circuit Judge, . . . , „ , „ This is an action for damages tor death by wrongful act. Plaintiff’s intestates, Marcug Andlauer and Ellanore Andlauer, husband and wjfej were killed on a railroad crossing near St. Marys, Kan., December 11, 1927. It is charged in the petition that the defendant railroad ^ company was ^ negligent ta operating its train at an excessive speed; that the trainmen failed to sound the erossing whistle; that they failed to warn plaintiff’s intestates, or slacken tbe speed of the train after they knew, or could have known, of their peril. Defendant’s answer is in effeet a general denial and a plea of eontribu£ory negijgenee. ., „ , „ . At tbe place where tbe accident occurred, defendant’s railway track runs east and west, while Highway No. 40 runs in the same direction, but to the south of and parallel with the railway track for some considerable distanee. St. Marys College is located north -of the railway tracks, the grounds of which are entefd £Jom Highway No. 40 by means of a road lading north. from the main highway and er°ssmS f* rflwa^ ^aok- P16 from the north edge of the highway to the south rail of the track is 71% feet. This railway crossing was marked by the standard railway crossing sign, located 17 feet south of the south rail, at the east edge of the highway as it passed north at right angles from Highway No. 40. The contour of the ground is generally level, so that an oeeupant of an automobile turning north from the main highway toward the railway crossing onto the highway leading toward the entrance of the college grounds, has an unobstruoted view of a railroad train b_ j from ^ east £or a distanee of more than ^qqq £fie£ ’ ’ , '^.d^a^?r® wer® traveling west on Highway No. 40, m a closed automobile, m-tending to drive into St. Marys College grounds; their son being a student at the college. After turning north, leaving Highway No. 40, and as they passed onto the railway crossing, they were struck by a westbound passenger train and almost instantly killed. The accident occurred about 3:30 in the afternoon, on a clear day. Andlauer and his wife were both familiar with the crossing. As they turned north, approaching the crossing, they were traveling at a speed estimated at from twelve to fifteen miles an hour, and did not slacken nor increase that speed, so far as the record shows. There was evidence that the train was traveling from fifty to sixty miles an hour, and there was testimony of two witnesses to the effect that they did not hear the crossing whistle sounded. There was also evidence that the train was about an hour late, and that it usually slowed down to from twenty-five to thirty miles an hour in passing by the St. Marys College property. St. Marys is a town of about 1,200 inhabitants, and there is a student body at the college of from 500 to 1,000 students, and a faculty of about 100, all of whom, we assume, lived on the campus in dormitories, although that is not very clear from the record. An ordinance of the city of St. Marys limits the speed of trains within the city limits to twenty miles an hour, fixing as a penalty for the violation of the ordinance a fine of not less than $2-5, nor more than $100'. When the plaintiff rested, defendant interposed a motion for a directed verdict, moving in .the alternative for a directed verdict or a dismissal upon the merits. The court granted defendant’s motion in the alternative, and dismissed the petition on its merits. To this action of the court plaintiff excepted “for the reason that under the pleadings and tho evidence the plaintiff was entitled to recover and was entitled to- have the cause submitted to the jury.” The exception was allowed, and the case has been removed to this court by appeal. In effect the negligence charged is: (1) Failure to sound any warning of the approach of the train, either by the ringing of a bell or the sounding of a whistle, after knowledge that the automobile in which the Andlauers were riding was approaching a position oí: peril; (2) failure to observo a custom theretofore observed by it, to slow down its trains when passing St. Marys College and entering the city limits of St. Marys; and (3) failure to ring any hell or sound any whistle within eighty rods of the crossing. It is the contention of plaintiff that he was entitled to go to the jury on each of these issues. Defendant contends that: (1) The evidence was insufficient to raise an issue as to the allegations of prim,ary negligence; (2) that plaintiff’s intestates were guilty of such contributory negligence as precludes recovery; and (3) that the doctrine of discovered peril or last clear chance was not applicable because there was no evidence that the defendant’s employees discovered the peril in time to have avoided the accident. In our view of the ease it is not necessary to consider the debated question as to whether there was sufficient evidence of primary negligence to entitle plaintiff to have that issue submitted to the jury, because it seems clear, under the undisputed evidence, that Mr. and Mrs. Andlauer were both guilty of contributory negligence. We therefore assume, without deciding, that the evidence on the question of primary negligence was such-as to entitle plaintiff to have had that issue submitted to the jury. As has been observed,, the accident occurred in broad daylight, on a clear afternoon. The view toward the east was unobstructed, and had either of the occupants of the ear looked toward the east as they approached this crossing, he could not but have seen the approaching train. It appears that the car in which the Andlauers were riding, was traveling at a speed of from ten to twelve miles an hour from the time it left the main highway and approached the crossing, and during that time the speed neither decreased nor increased; the car neither stopped nor turned aside. These are undisputed physical facts. It was their duty to-look and listen as they approached this crossing, at such time and place as looking and listening would he effective. This crossing was a point of danger, with which they were both familiar. Certainly, the contributory negligence of the driver cannot he denied. It is argued, however, that the negligence of the driver should not be imputed to-Mrs. Andlauer, as she was a mere passenger or guest. We need not determine whether, under the facts and circumstances disclosed by this record, the negligence of Mr. Andlauer should be imputed to his wife, because-this court has consistently held to the rule-that it is the duty of one riding in an automobile, even though he is not the driver, to keep a lookout at railway crossings and give-warning to the driver. Bradley v. Missouri Pacific R. Co. (C. C. A. 8) 288 F. 484, 495; Noble v. Chicago, M. & St. P. R. Co. (C. C. A. 8) 298 F. 381, 384; Chicago & E. I. R. Co. v. Sellars (C. C. A. 8) 5 F.(2d) 31; Kutchma v. Atchison, T. & S. F. R. Co. (C. C. A. 8) 23 F.(2d) 183; Parramore v. Denver, & R. G. W. R. Co. (C. C. A. 8) 5 F.(2d) 912. See, also: Summers v. Denver Tramway Corp. (C. C. A. 10) 43 F.(2d) 286; Garrett v. Pennsylvania R. Co. (C. C. A. 7) 47 F.(2d) 10. In Bradley v. Missouri Pacific R. Co., supra, the facts were, very similar to those in the instant case. In that case Mr. Bradley was riding in' an automobile driven by a Mr. Brown. At a point 40 feet east of the railway crossing the approaching train was visible for a distanet of 800 feet. Both occupants of the ear were killed, and there was no direct testimony as to the care exercised either by the driver or by Mr. Bradley. Both, as in the ease at bar, were familiar with the crossing. This court held that Bradley, even though merely a guest, was conclusively shown' by the record to have been guilty of contributory negligence. In the course of the opinion by Judge Kenyon it is said: “Here the hazard was brought about as much by Bradley’s negligence as by Brow’s. We think the question of contributory negligence here was one of law for the court, as the evidence relating thereto was undisputed, and but one conclusion can be drawn therefrom by reasonable minds, and that is that Bradley was guilty of contributory negligence, and the court would have been justified in so holding as a matter of law.” The doctrine of the Bradley Case was reaffirmed by this court in Noble v. Chicago, M. & St. P. R. Co., supra. In that ease, which involved the question of contributory negligence of a passenger, it is said: “The negligence of the driver of a ear is not always, or necessarily, imputable to the passenger; but, outside the conduct of her husband, we think, on this record, that the plaintiff was equally guilty of contributory negligence. Admittedly she had a better opportunity than her husband to observe the train and in sufficient time to warn him. This she did not do, and is therefore guilty of contributory negligence as a-matter of law.” Referring again to the facts in the instant case, it is observed that when the ear turned north, approaching the crossing, it was 71% feet from the south rail. Mrs. Andlauer was on the right side, in the front seat, and, as in the Noble Case, had a better opportunity of observing the approaching train than her husband, who was at the wheel. But it is ai’gued that in the absence of evidence, we must presume that she was in the exercise of reasonable care. If so, we should presume that she looked, and, of course, if she looked, she must have discovered the approaching train. If we may pursue the line of presumption further, in violation of the rule that one presumption cannot be based upon another presumption, we should presume that she warned her husband. Then there is a presumption that he exercised ordinary care. There are two answers to the argument based upon presumption: First, one presumption cannot be based upon another presumption. Brady v. United States (C. C. A. 8) 24 F.(2d) 399; General Reinsurance Corp. v. Southern Surety Co. (C. C. A. 8) 27 F.(2d) 265; Lincoln National Life Ins. Co. v. Erickson (C. C. A. 8) 42 F.(2d) 997. Second, a presumption cannot be weighed as against evidence, and does not constitute affirmative proof. -In the absence of evidence, a presumption of fact may prevail. It takes the place of evidence; but when there is evidence on an issue, presumption as to that issue disappears. United States v. Le Duc (C. C. A. 8) 48 F.(2d) 789; Guaranty Trust Co. v. Minneapolis & St. L. R. Co. (C. C. A. 8) 36 F.(2d) 747; Fidelity & Casualty Co., v. Niemann (C. C. A. 8) 47 F.(2d) 1056. Here, the physical facts and surrounding circumstances, all practically undisputed, would seem conclusively to show that the occupants of this car, heedlessly, and without looking or listening, drove onto this crossing without any knowledge of the approach of the train. They knew that they were approaching the crossing; they- knew exactly where they were and where the crossing was. They had an unobstructed view of the approaching train, yet the ear neither stopped, slackened its speed, increased its speed, nor turned to the right nor to the left, but went steadily forward. These physical facts and surrounding circumstances overcome all presumption as to the exercise of ordinary care, and conclusively establish that both the occupants of this ear were guilty of contributory negligence, unless, as contended by appellant, the doctrine of discovered peril can be invoked. It is argued that the defendant’s employees in charge of the train, in the exercise of ordinary care, should have discovered the peril of plaintiff’s intestates in time to have averted the accident. There are at least two answers to this contention: First, the evidence is not such as to charge the employees in charge of the train, with knowledge that the Andlauers were intending to drive onto this crossing. Certainly, until the car turned north toward the crossing, the employees were not charged with knowledge of their presence. They were warranted in assuming that these people would exercise ordinary care, that they knew they were approaching a crossing, and that the train was approaching a crossing. With this knowledge, they may well have assumed that the automobile would be stopped before it passed onto the crossing. If employees of the railroad company could not so assume, then it would he necessary to stop the train at every highway crossing, wherever situate, or to approach it at such a speed as to bo able to stop the train ■whenever the train crew observed any one approaching a crossing. If this train were going at as high a rate of speed as contended, it certainly could not have been stopped within several hundred feet; whereas, the automobile, traveling at a speed of from twelve to fifteen miles an hour, could have been stopped almost instantly. Second, the doctrine of discovered peril or last clear chance is not applicable because there is no proof that the employees operating the train had knowledge of the peril. This court has consistently held that such knowledge must be actual. It is bottomed on the theory that after the actual discovery of a person in peril, there is time within which, by the exercise of ordinary care, to avoid the injury. In the instant case, there is no evidence that the employees actually discovered decedents’ peril. Certainly, there is no evidence that they discovered such peril in time to have avoided the accident. Marshall v. Hines (C. C. A. 8) 271 F. 165, 170; Miller v. Canadian Northern R. Co. (C. C. A. 8) 281 F. 664; Wheelock v. Clay (C. C. A. 8) 13 F.(2d) 972; Walker v. East St. Louis & S. Ry. Co. (C. C. A. 8) 25 F.(2d) 579; Kinney v. Chicago Great Western R. Co. (C. C. A. 8) 17 F.(2d) 708. In Marshall v. Hines, supra, this court said: “The plaintiff’s definition of the last clear chance doctrine is too broad and erroneous. The exception it presents is limited to cases in which the defendant actually discovers the person injured and his peril in time to avoid the injury. It does not include cases where, by the exercise of ordinary care, the plaintiff might have made such a discovery in time to avoid the injury.” In the instant case, the railroad company produced no testimony and there was no evidence that the engineer or fireman, or any other employees in charge of the train, discovered the Andlauers or their peril before they were injured, and hence the exception to the rule of contributory negligence cannot he invoked. It is finally urged that the court erred in granting the alternative motion to dismiss the ease, instead of directing a verdict. When defendant’s motion was submitted, no objection was made to its form, and in the exception taken by plaintiff to the action of the court granting the motion, no complaint was made that the procedure invoked was objectionable. Had such an objection or exception been taken at the time, the procedure could readily have been cured. The objection is purely technical and could not possibly have prejudiced the plaintiff. What is said by this court in Bowman v. Atchison, T. & S. F. R. Co. (C. C. A. 8) 184 F. 697, 699, is here apposite. It is there said: “The court sustained the motion for a directed verdict and added: ‘Enter judgment for the defendant as on the verdict of the jury.’ No verdict of the jury appears in the. record, and the fair inference is the court dispensed with one. The plaintiff excepted generally to the ruling and the final judgment, but the court was not informed that complaint was made because a verdict was not taken in conformity with the ruling on the motion. And, though it is made the subject of assignments of error, they are not relied on in the brief. Our attention is, however, directed to the practice. We agree with counsel that the practice is objectionable. A serious question would have been presented had the trial court been distinctly advised that exception was taken to it and an opportunity given to correct it.” In a later case, Wear v. Imperial Window Glass Co. (C. C. A. 8) 224 F. 60, 63, in an opinion by the late Judge Sanborn, it is said: “There is another reason why no reviewablo question of law is presented to this court in this case. A trial court -is entitled to a clear specification by exception of any ruling or rulings which a party challenges and desires to review, to the end that the trial court itself may correct them if so advised, and, if it fails to do so, that there may he a clear record of the rulings and the challenges thereof. For this purpose a rule has been firmly established that an exception to any ruling which counsel desire to review, which sharply calls the attention of the trial court to the specific error alleged, is indispensable to the review of such a ruling.” If there was even a technical error, it was waived, and cannot be considered by this court. See, also, United States v. United States Fidelity & Guaranty Co., 236 U. S. 512, 35 S. Ct. 298, 59 L. Ed. 696; Fillippon v. Albion Vein Slate Co., 250 U. S. 76, 39 S. Ct. 435, 63 L. Ed. 853. The rule is a just one and affords an opportunity, both to the trial court and opposing counsel, to-correct the error, which in the instant case goes only to matters of form; and it enables the appellate court to determine what .questions were actually presented to- the lower court. We conclude that the court correctly directed a verdict for the defendant on the ground of contributory negligence, and the judgment appealed from is affirmed. Question: What is the nature of the proceeding in the court of appeals for this case? A. decided by panel for first time (no indication of re-hearing or remand) B. decided by panel after re-hearing (second time this case has been heard by this same panel) C. decided by panel after remand from Supreme Court D. decided by court en banc, after single panel decision E. decided by court en banc, after multiple panel decisions F. decided by court en banc, no prior panel decisions G. decided by panel after remand to lower court H. other I. not ascertained Answer:
songer_appfed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARKANSAS-LOUISIANA GAS COMPANY, Respondent. No. 17535. United States Court of Appeals Eighth Circuit. June 30, 1964. Anthony J. Obadal, Attorney, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, N. L. R. B., Washington, D. C., Dominick L. Manoli, Associate General Counsel, N. L. R. B., Washington, D. C., Marcel Mallet-Prevost, Asst. General Counsel, N. L. R. B., Washington, D. C., and Allison W. Brown, Jr., Attorney, N. L. R. B., Washington, D. C., for petitioner. Tom Gentry, of Gentry & Dabbs, Little Rock, Ark., Ray Thornton, Jr., Little Rock, Ark., for respondent. Before VOGEL, MATTHES and RIDGE, Circuit Judges. VOGEL, Circuit Judge. The National Labor Relations Board has petitioned this court pursuant to § 10(e) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C.A. § 151 et seq., for enforcement of its order of June 13, 1963, against Arkansas-Louisiana Gas Company, respondent. The Board’s decision and order are reported at 142 N.L.R.B. No. 117.- The Board, adopting its Trial Examiner’s findings and recommended order, found that respondent had violated §§ 8(a) (3) and (1) of the Act by discharging eleven employees for engaging in union activities. It also found that respondent had violated § 8(a) (1) of the Act by interrogating and threatening its employees with respect to union activity. The Board’s order, of which enforcement is requested, requires respondent to cease and desist from the unfair practices found and from in any other manner interfering with the rights of its employees under the Act. Affirmatively, the order requires reinstatement of the employees named in the complaint, the restoration of seniority and all other rights and privileges to those already re-employed, the reimbursement of back pay plus interest at the rate of 6% per annum, and the posting of appropriate notices. Respondent objects to the petition for an enforcement order on the grounds that there is no substantial evidence in the record justifying it and further asks that it be denied because of claimed prejudicial errors committed by the Trial Examiner and approved by the Board whereby respondent was denied due process of law. The record indicates that respondent is a Delaware corporation conducting an interstate utility business in Louisiana, Arkansas, Texas, Oklahoma, Kansas and other locations where it is engaged in the sale and distribution of natural gas. It also owns and operates non-utility enterprises through wholly owned subsidiaries. During the year preceding the issuance of the complaint herein respondent received gross revenue of more than $100,-000,000. No jurisdictional issues are present. As part of its business operations respondent maintains a trucking terminal on 15th Street in Little Rock, Arkansas. In May 1962 there were 17 truck drivers employed at such terminal. As early as March of 1962 the drivers at the 15th Street terminal learned of management’s plan to change the method by which wages were computed. After several attempts to meet and persuade management not to effect this change, the employees sought to form a union. Between April 20th and May 8th ten of the 17 drivers signed application cards with Local 878 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Between May 11 and May 14, 1962, respondent discharged all but four of its truck drivers working at the 15th Street terminal, doing so suddenly and without warning. None of the four retained drivers had signed a union card. Circumstances surrounding the various discharges are fairly summarized from the record as follows: On May 11th, Jenkins, the dispatcher who ran the trucking terminal and who was held by the Board to be a company supervisor, came into the yard at the trucking terminal and stopped Creed, who was about to take a truck to St. Louis. Jenkins said, “They have just fired the whole bunch. * * * They have just fired every truck driver down here.” Jenkins and Creed spoke to Garage Foreman Lafferty, who told them that he had received instructions by telephone from Lindsey Hatchett, respondent’s vice president, to lay off each driver as he arrived at the terminal. Upon Jenkins’ protest that he had several runs scheduled at that time, Lafferty stated that Hat-chett had told him to keep drivers Ford, Younts, Ware and Roberts. None of these four had signed union cards. Laf-ferty explained that he was instructed by Hatchett that this was an “economic layoff, and we were just going to have to tighten our belts.” Jenkins told Creed and another driver, Lowery, that he had so many trips scheduled he did not know what he was going to do for men to drive the trucks. Later that afternoon in Jenkins’ office driver McEuen, who was among those discharged, remarked to Creed, who was the leader in union activity, that, “ * * it looks like I cut my own throat. I did not want to sign one of these cards because I thought I was going to the office, * * * and I would not be allowed to vote when the Union voted. * * * Now, I have messed around and I have no protection at all. I did not sign a card and you boys did, and you have protection, and I haven’t.” Jenkins broke in and asked, “You did not sign a card?” McEuen turned to Creed for confirmation of this fact, and Creed agreed that Mc-Euen had not signed a card. The next day McEuen was rehired by respondent. That evening Jenkins informed driver Ballard that the latter was among those discharged. Jenkins asked Ballard whether he had joined the union. Ballard replied that he was not a member and Jenkins said, “Well, Creed and some of the guys seem to think that is the reason for the lay off, and if it was, I think I can get you back on.” Ballard was rehired by the respondent on September 3, 1962, but with loss of vacation pay and with no seniority. On May 14th Ballard and three other «drivers went to Jenkins’ office. Jenkins "told then that a new driver, Jones, had "been hired that morning and that the ■company was transferring in extra driv■ers from its home office at Shreveport. With reference to interference, re;straint and coercion, it is established in •the record that W. K. Stephens is pres.ident of the respondent corporation, and that Albert Stephens, a stockholder and brother of respondent’s president, had "been instrumental in the original hiring •of a number of respondent’s drivers. Drivers Harper and Lowery had obtained •employment applications from Albert Stephens and after filling them out returned them to him. During the course •of an interview with Lowery, Albert Stephens questioned Lowery about his feelings toward the union. Lowery re■plied that unions were all right in their place, that he had worked on jobs that •were union and ones that were not. At the end of the interview, Stephens told "him that respondent would hire him. 'Three weeks later respondent notified Lowery to report to. work. Albert Stephens also offered to hire driver Kauffman for a job with respondent, Kauffman filled out and returned the application blank given to him by Albert ^Stephens and thereafter was interviewed •at the latter’s home. Stephens told him that he had put his “o. k.” on the appli•cation and that Kauffman would hear from respondent in a few days. Albert 'Stephens said “When I put my O. K. on things, they generally stay fixed.” He -also asked Kauffman, “You know what to •do about the union?” Kauffman said, “Yes, I do.” About three weeks thereafter Kauffman began working for the ■company. Driver Newsom filled out an application for employment which he took to Albert ^Stephens, who put his “o. k.” on it. Sub:sequently, at Albert Stephens’ request, Newsom interviewed him at the Stephens Lome. Albert Stephens told him that Le had his application and asked if he wanted to go to work for the gas company. Albert Stephens then said, “You know how the Gas Company operates. It is against the Union.” Stephens asked him if he was for the union and was told that Newsom wasn’t. Later Albert Stephens called him and told him to report to the 15th Street office. Driver Harrington, who was a second cousin of the Stephens brothers, filed his application directly with respondent, About two months later Albert Stephens called him out to his home and told him, “ * * * that he had a job for me if Jack York did not take the job.” Albert Stephens also asked how Harrington felt about the union and Harrington replied that he did not like the union. The next day Albert Stephens told him to report to Vice President Hatchett. Harrington did so and began working the following day. Without more, this is an indication of the activities of Albert Stephens insofar as employment of the truck drivers and inquiries as to their union sympathies is concerned, A few days'after the May 11th discharges, Albert Stephens went to driver Kauffman’s home, where he questioned him concerning the dismissals and the union activity of the drivers. Later four of the discharged drivers went to Albert Stephens’ home at his request. Albert Stephens told them he wanted “straight” answers to his questions and demanded that they tell him “who started this Union activity”. Albert Stephens said he was not a representative of the company but that if they gave him the information he wanted, he would guarantee their jobs back. Creed questioned Stephens about the validity of any guarantee he could give if he did not represent the company and Stephens replied, “How did you get your jobs to start with?” He then told the men to talk it over among themselves and then come back and give ^im some “straight answers”. It is the Board’s contention that (1) substantial evidence, considering the record as a whole, supports its finding that respondent violated §§ 8(a) (3) and 8(a) (1) of the Act by discriminatorily discharging employees to discourage membership and activity in the union; (2) substantial evidence supports its findings that Albert Stephens was an agent of the respondent and that through, him respondent violated § 8(a) (1) of the Act by interrogating and coercing employees concerning their union activity; and (3) its order directing back pay with interest is valid and proper. Respondent contends, first, that the Board failed to establish that it, respondent, had any knowledge of any union activity by the employees before the layoff. However, an examination of the record as a whole discloses substantial evidence of knowledge. In March preceding the May 1962 discharges the drivers indicated their dissatisfaction with the company’s proposed change of its wage structure, arranged meetings with Transportation Superintendent Crawford, with Virgil Creed acting as their spokesman. Superintendent Crawford was subsequently relieved of his duties and replaced by Lindsey Hatchett, a vice president. A meeting was requested with Hatchett, who said he would “look into it”. Subsequently, about April 15th, Lowery and some of the other drivers were talking with Jenkins. Lowery testified • “Q. Tell us what was said ? “A. ^ We were talking about our conditions and it seemed like something had to be done, and we could not talk to anybody. I said that it seemed like the Union was our answer, and some were inclined to agree, and Mr. Jenkins said 'yes, it looked like something had to be done, “Q. Mr. Lowery, how did you apply for your job with the Gas Company? “A. Through Mr. Albert Stephens. “Q. When was this, approximate-jy? ... . _ _ f ,, ., „ . A. Along about the middle of August, 1961.” Albert Stephens stated he had heard about “the union” on the streets in Sheridan. (Sheridan is the county seat of Grant County wherein both Albert, Stephens and his brother W. R. Stephens, president of the company, reside.) We believe it would take a considerable amount of naivete to conclude-from this record that the respondent, had no knowledge of the union activity of its drivers before their discharge im Ma^ 1962' We find tbe Board’s concluS10n tbereon to be amPfr supported, It is next contended by the respondent that the Board failed to establish that W. R. Stephens, Albert Stephens^ his brother, or Royce Jenkins did, as-agents and supervisors of the respondent, interrogate the employees concerning' their union membership activities or desires. By 29 U.S.C.A. § 160(e) Congress; provided that in a petition to this court, for an enforcement order «-» * * The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as ai whole shall be conclusive.” ,In afsessmg the flndmgs’ we are &uidedl by the Monition of the Supreme Court in Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456: “ * * * The substantiality of evidence must take into account. whatever in the record fairly de— tracts from its weight. This is clearly the significance of the requirement in both statutes that courts; consider the whole record. * * ' . „ , ., , “ * * Nor does it mean that even as to matters not requiring expertise the court may displace the-Board’s choice between two fairly conflicting views, even though the-court would justifiably have made a different choice had the matter been before it de novo. Congress has-merely made it clear that a reviewing court is not barred from setting-aside a Board deciaion when it can_ not conscientiously find that the evidence supporting that decision is substantial, when viewed in the light ■that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” As to dispatcher Jenkins, the Board .•stated in its Decision and Order: “ * * * In addition to the evidence as to supervisory duties mar-shalled by the Examiner in support • of his finding, the undisputed testimony of the General Counsel’s witnesses shows that Jenkins in assigning drivers to their runs used his in- • dependent judgment to equalize their •earnings. He also served as a link between management and the drivers, arranging meetings for them 'with the Company officials. In the • administrative hierarchy at the time •of the layoff, 17 employee drivers .reported directly to him, and he him■self reported to a vice president in •charge of the entire transportation • department of the Company. And it 'was Jenkins, again on his own initiative, who was at least instrumental in securing the reinstatement of McEuen. Under these circumstanc- • es, with no evidence adduced to the ■ contrary by the Respondent, we hold, • as did the Trial Examiner, that Jenkins was a supervisor within the meaning of Section 2(11) of the Act.” With reference to Albert Stephens, the 'Board, after referring to the testimony •as summarized supra, stated: “ -* * * These incidents, together with those cited by the Trial Examiner, convince us that Albert •Stephens was an agent of the Respondent and that, because of his interrogation of the employees regarding their union sympathies and the leadership of the organizational movement, the Respondent violated Section 8(a) (1) of the Act.” In determining responsibility for union activities, the principles of agency and its establishment are to be ■construed liberally. The Supreme Court •made reference thereto in International Ass’n of Machinists, etc. v. Labor Board, 1940, 311 U.S. 72, 80, 61 S.Ct. 83, 85 L.Ed. 50, wherein, speaking through Mr. Justice Douglas, it said: “The employer, however, may be held to have assisted the formation of a union even though the acts of the so-called agents were not expressly authorized or might not be attributable to him on strict application of the rules of respondeat superior. We are dealing here not with private rights (Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261 [60 S.Ct. 561, 84 L.Ed. 738]) nor with technical concepts pertinent to an employer’s legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process from all taint of an employer’s compulsion, domination, or influence. The existence of that' interference must.' be determined by careful scrutiny of all the factors, often subtle, which restrain the employees’ choice and for which the employer may fairly be said to be responsible.” See, also, H. J. Heinz Co. v. Labor Board, 1941, 311 U.S. 514, 520, 521, 61 S.Ct. 320, 85 L.Ed. 309, and N. L. R. B. v. Link-Belt Co., 1941, 311 U.S. 584, 599, 61 S.Ct. 358, 85 L.Ed. 368. It is the respondent’s contention that the Supreme Court’s holdings in the cases supra are no longer authority, having been announced prior to the amendment of the present Act. Nevertheless, the present Act, 29 U.S.C.A. § 152(13) provides: “In determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.” (61 Stat. 139) Subsequent holdings of this and other courts indicate clearly that the doctrine announced by the Supreme Court in International Ass’n of Machinists, etc. v. Labor Board, supra, continues to be followed. N. L. R. B. v. Champa Linen Service Co., 10 Cir., 1963, 324 F.2d 28, 30; N. L. R. B. v. Des Moines Foods, Inc., 8 Cir., 1961, 296 F.2d 285, 287; N. L. R. B. v. Birmingham Publishing Co., 5 Cir., 1959, 262 F.2d 2, 8; N. L. R. B. v. Solo Cup Co., 8 Cir., 1956, 237 F.2d 521, 523-524; N. L. R. B. v. Mississippi Products, Inc., 5 Cir., 1954, 213 F.2d 670, 672-673; N. L. R. B. v. Geigy Co., 9 Cir., 1954, 211 F.2d 553, 557; N. L. R. B. v. Howell Chevrolet Co., 9 Cir., 1953, 204 F.2d 79, 84, aff’d on other grounds 346 U.S. 482, 74 S.Ct. 214, 98 L.Ed. 215 (1953). In discussing this same question, the court in Local 636, etc., Plumbing & Pipe Fit. Ind. of United States v. N. L. R. B., 1961, 109 U.S.App.D.C. 315, 287 F.2d 354, 359, said: “We know of nothing in the Act of 1947 or in the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 401 et seq., which affects the vitality of * * * [the doctrine embodied in I. A. of M.].” In interpreting 29 U.S.C.A. § 152(13), quoted supra, the courts have held that strict principles of agency are not required to be applied in determining an employer’s responsibility for the union activities of its supervisory employees. See, e. g., Local 636, etc., Plumbing & Pipe Fit. Ind. of United States v. N. L. R. B., supra, and cases cited therein. We think the record justified the Board’s conclusion that respondent knew of, approved and ratified the actions of Albert Stephens in connection with the employment, in the first instance, of a number of respondent’s drivers and in, subsequent to the discharge, interrogating them with reference to union activity. Albert Stephens, the brother of respondent’s president, distributed respondent’s blank employment application forms, received back the forms after they were filled out by applicants for employment, interviewed prospective employees, reported the results of those interviews to respondent, informed applicants whether they could work for respondent and informed them when, where and to whom to report for work. Applicants approved by Albert Stephens who reported at the appointed time and place were given work by the respondent. In one instance an applicant who had applied for a position directly with the company was subsequently called by Albert Stephens and told to see him for an interview. Upon receiving Albert Stephens’ approval, this applicant was given work by respondent. We conclude from the foregoing and without further reference to detailed evidence in the record that the Board’s, findings that Jenkins was a supervisor and Albert Stephens was an agent of the respondent for whose activities respondent became responsible are supported by substantial evidence in the record considered as a whole and may not be set aside here. We further hold that there is substantial evidence in the record from which the Board was fully justified in finding that the drivers herein were discharged because of their union activity and that such discharges were in violation of § 8(a) (3) of the Act. The timing and manner of discharges were compellingly significant. Following unsatisfactory and inconclusive meetings with respondent’s executives over wage computation methods, the drivers began union organizational activities. Between April 20 and May 8, 1962, ten drivers of the 17 employed at this terminal signed union application cards. Between May 11 and May 14, 1962, all drivers who had thus signed cards were, without previous warning, laid off and terminated. Only four drivers of the 17 were retained. None of the four had signed a union card. Another driver, upon telling Jenkins that he had not signed a union card, was promptly rehired. These discharges were made in the face of apparent driver shortage, were accompanied by efforts to get replacements from the respondent’s plants elsewhere and were made without regard to seniority ratings or consideration of accident records and efficiency classifications based thereon. The common factor among the discharged drivers was the signing or carrying of a union application card. It may also be noted that the employees were told in the first instance that this was an “economic layoff and we were just going to have to tighten our belts”. Respondent’s utter failure to introduce any evidence to justify such a conclusion plus the fact that the discharges left them shorthanded is a complete and sufficient refutation of respondent’s contention that the discharges were for economic reasons and because of lack of work. We find the Board’s conclusions are fully justified by the record considered as a whole, including that which “fairly detracts from its weight”. Respondent contends that certain prejudicial errors were committed by the Trial Examiner and adopted by the Board. Among other things, it claims that it was not permitted by the Examiner to show when it hired driver William Jones that it intended for him to work as a pipeline spacer on construction work, a job which, at the time of Jones’ hire, was not yet in existence. The ruling of which respondent complains is not before us in the printed record. Respondent has accordingly failed to comply v/ith our Rule 10(b) which provides, inter alia, “If the appellant or petitioner in his brief challenges rulings upon evidence, such evidence, the objections interposed thereto, and the rulings questioned shall be quoted in the printed record, * * Failure to comply with Rule 10(b) would justify this court in refusing to consider respondent’s contention. Zitserman v. F. T. C., 8 Cir., 1952, 200 F.2d 519, 521. The Board has, however, seen fit to attempt to refute respondent’s contention in its brief. It points out, and we agree, that the evidence fully supports the conclusion that respondent hired Jones to work as a truck driver. Supervisor Jenkins advised the discharged drivers that Jones had been hired for that purpose and it is undisputed that'before coming to work for respondent Jones took a physical examination to qualify him as a truck driver pursuant to the requirements of the Interstate Commerce Commission. Supervisor Jenkins told the discharged drivers he had gotten some help from Shreveport and that as to Jones, “Yes, we hired him this morning, [shortly after the discharges] and he is going to take his physical now. If he passes, he will go out on a trip this evening.” If. any error was committed in connection with refusing respondent’s attempt to make a further showing, if it did so attempt, then we find the error to be without prejudice. We likewise hold that the Trial Examiner’s exclusion of respondent’s proffered evidence that it had amicable relations with other unions to be without prejudice. Cf. Pittsburgh Plate Glass Co. v. N. L. R. B., 1941, 313 U.S. 146, 158, 61 S.Ct. 908, 85 L.Ed. 1251; National Airlines, Inc. v. C. A. B., 1963, 116 U.S.App.D.C. 114, 321 F.2d 380, 383. Respondent’s further claim is that it was improperly denied the right to inspect pre-trial statements of the general counsel’s witnesses. A number of witnesses had been called by the general counsel, examined, cross-examined and excused. The witness Marvin Younts (one of the retained drivers who had not signed a union card) was then called. During the direct examination of Younts it appeared that he had given a written statement during the investigation but on the witness stand claimed that he had been drinking during that time and could not remember what had been said. Counsel for the respondent then stated: “Now, Mr. Examiner, at this time, I would like to ask that Counsel for the General Counsel furnish us with a copy of that statement and all other statements which he has taken from his witnesses, which he has used or may use hereafter.” Further examination of the witness Younts failed to identify the statement, whereupon the general counsel asked that the witness be declared hostile. The request was not granted but the Trial Examiner suggested that the witness be withdrawn. This was done and all of his testimony was stricken. Counsel for respondent renewed his request for a copy of the statements “that Counsel has used in examining other witnesses he has put on the stand.” The Examiner ruled: “I just have this to say, that you are untimely in your request for statements of previous witnesses. The witnesses have been excused, and the request is untimely.” The Board’s rules promulgated after Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, provide in pertinent part as follows: 29 U.S.C.A.App. “§ 102.118 Same; Board employees prohibited from producing files, records, etc., pursuant to subpena ad testificandum or subpena duces tecum, prohibited from testifying in regard thereto * * * * * “ * * * Provided, After a witness called by the general counsel has testified in a hearing upon a complaint under section 10 (c) of the act, the respondent may move for the production of any statement of such witness in possession of the general ■counsel, if such statement has been reduced to writing and signed or ■otherwise approved or adopted by the witness. Such motion shall be granted by the trial examiner. If the general counsel declines to furnish the statement, the testimony of the witness shall be stricken: * * *» Under the foregoing rule, it is perfectly clear that the statement of the witness Younts need not have been produced after his testimony had been stricken. We further conclude that the Trial Examiner’s ruling that the request as to the other statements of witnesses who had been excused was untimely is likewise correct. As to the respondent’s contention that the Board is without authority to award interest on back pay, this court has previously approved the Board’s practice of adding 6% interest to back pay awards. See Marshfield Steel Co. v. N. L. R. B., 8 Cir., 1963, 324 F.2d 333, 337-339; N. L. R. B. v. Byrds Mfg. Co., 8 Cir., 1963, 324 F.2d 329, 333. We have examined all of the respondent’s claimed errors and find none of them to be of substantial merit. An order of enforcement will be granted. 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:
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. In re INSULL UTILITY INVESTMENTS, Inc. FENTRESS v. BIGELOW et al. (three cases). Nos. 5171-5173. Circuit Court of Appeals, Seventh Circuit. Jan. 2, 1935. Edwin H. Cassels, William S. Warfield, 111., and Richard H. Merrick, all of Chicago, 111., and Lawrence T. Allen and Everett L. Dalbey, both of Danville, 111., for appellant. Lessing Rosenthal, Charles H. Hamill, and Leo F. Wormser, all of Chicago, 111., for appellee Bigelow. Samuel A. Ettelson, of Chicago, 111., for appellee Ettelson. Before SPARKS, FITZHENRY, and ANDERSON, Circuit Judges. SPARKS, Circuit Judge. These appeals arise out of the ruling of the District Court in the bankruptcy proceedings of Insull Utility Investments, Incorporated, with respect to compensation to appellant as receiver, and fees for his attorneys. The claims were as follows: 1. (a) $10,000 for his services as receiver in bankruptcy in the District Court for the Northern District of Illinois, Eastern Division, and ancillary receiver in bankruptcy in the District Court for the Southern District of New York. (b) $7,500 for his services as ancillary receiver in equity in the District Court for the Southern District of New York. 2. $9,000 for fees of Allen and Dalbey as his attorneys as receiver in bankruptcy in the District Court for the Northern District of Illinois, Eastern Division. 3. $5,000 for fees of Cassels, Potter and Bentley as his attorneys as receiver in bankruptcy in the District Court for the Northern District of Illinois, Eastern Division. The trustee in bankruptcy made no objection to'the amounts thus claimed. Appellee Ettelson made no objection to claim 3, but filed her written objections to the other claims on the ground that they were exorbitant and excessive. She objected further to claim 1 on the ground that Fentress was nominated and appointed as such equity and bankruptcy receiver at the instigation of, and in collusion with the bankrupt. She further objected to claim 2 on the ground that Allen and Dalbey were nominated and appointed as such attorneys at the instigation of, and in collusion with the bankrupt. The court after hearing evidence upon the petition and the objections, filed its memorandum opinion on December 22, 1933. On January 20,1934, it found the facts specially and rendered its conclusions of law thereon, and on the same day rendered three separate judgments to the effect that the petitions of appellant Fentress, Allen and Dalbey, and Gassels, Potter and Bentley, were denied in accordance with the views set forth in its written opinion. The expense accounts of both firms of attorneys were allowed. The memorandum opinion, whieh appears in 6 F. Supp. 653, 660, differs from the one first filed, as shown by the record, in that it adds the point that there was no ground for the appointment of a receiver in bankruptcy. The facts pertinent to this controversy, as disclosed by the record, are as follows: On April 16, 1932, upon a creditors’ bill in equity, filed in the District Court from which these appeals are prosecuted, appellant and one Cooke were appointed co-receivers of Insull Utility Investments, Incorporated. Cooke served in that capacity until his resignation on September 26, 1932, and appellant served until December 2, 1932, when he delivered the assets in his possession to himself as solo receiver in bankruptcy, having been so appointed on September 22, 1932, the day-on which the Utility Investments Corporation was adjudicated a bankrupt on a petition filed on April 16, 1932. Appellant served as receiver in bankruptcy until the appointmeni of the trustee in March, 1933, and shortly thereafter, on March 30, ho turned the as sets over to the trustee in bankruptcy. On May 19, 1932, appellant was appointed as ancillary equity receiver by the United States District Court for the Southern Dis triet of New York in order to safeguard valuable securities held as collateral by certain banks in New York City, and for the same reason, on October 5, following the adjudica, tion, appellant was appointed ancillary re ceiver in bankruptcy in the Southern District of New York, and served as such until he wat succeeded by the trustee in bankruptcy. In this jurisdiction and also that of the South ern District of New York, orders of court wore procured by appellant and his attorney:temporarily enjoining the sale of pledged collateral of the approximate value of ten mil lion dollars. Under authority of the court, appellant employed the law firms of Allen and Dalbey. and Casscls, Potter and Bentley, who served as his solicitors in the equity case, .and as his attorneys in the bankruptcy ease in the jurisdiction of the Northern District of lili nois. On August 29, 1932, prior to the bankruptcy adjudication, the District Court, on petition of appellant and his co-receiver, allowed on account, from the date of their appointments to September 15, 1932, the sum of $7500 to appellant as equity receiver, and the same amount to each firm of attorneys as fees for their services in the equity proceeding. After the adjudication in bankruptcy, on December 8, 1932, the District Court sitting as a court of bankruptcy, on petition of appellant and his co-receiver filed in the bankruptcy court, allowed to appellant on account for services in the .equity case, the sum of $5000, and a like amount to each firm of attorneys as fees for their services in the equity proceeding. After appellant had finished his work as receiver in bankruptcy and had delivered the assets to the trustee, he applied, in conneetion with his final report and account, for the compensation here involved covering his own services and those of his attorneys in the bankruptcy ease only, and his own services as ancillary equity receiver in New York. The application was made to the bankruptcy court with the approval of the United States District Judge for the Southern District of New York before whom the ancillary equity proceedings were had, for the reason that there were no available assets in the New York jurisdiction for the payment of the fees in that proceeding. No objection to his final report as receiver in bankruptcy was made and pursued, except by appellee Ettelson. The report was approved except as to the compensation requested, and appellant was discharged as such receiver on January 25, 1934. At the hearing on the questions raised by appellee Ettelson’s objections, there was no evidence offered by either party as to the value of the services or as to the fees, but the services were set forth with particularity. It was not contradicted that Allen and Dalbey had spent a little more than ninety days,, and Cassels, Potter and Bentley, 724% hours, solely in the bankruptcy ease,' and it does not appear specifically how much time was devoted by them in the equity receivership proceedings. The record does not disclose that the equity receiver’s final report as an entirety was ever approved by the court. It is contended by appellant (1) that the District Court, under the Bankruptcy Act, had no power to deny any compensation to appellant and his counsel for their services in the bankruptcy case; (2) that the District Court could not rightfully deny appellant any compensation for his services as ancillary receiver in equity in the Southern District of New York; and (3) that the District Court had no right or power to review the orders of another District Judge of the same court in the same case. In denying appellant’s petitions, it would seem on first impression that the court had refused compensation to the petitioners for the services rendered in the bankruptcy proceedings, and had also refused compensation to appellant for his services rendered in the ancillary receivership in equity. It will be noted, however, that the judgment recites that the petitions were denied in accordance with the views set forth in the opinion. A perusal of the opinion discloses that the court did not hold that the petitioners were not entitled to compensation for their services, or that the services were not efficiently and honestly rendered. Indeed, the court’s views were quite the contrary, but it held that each petitioner had already received an amount sufficient to compensate him for all services rendered in all the cases. It can scarcely be held that appellee Ettelson prevailed in her contentions. The result indeed was the one she sought, but it certainly was not obtained upon the theory which she presented. It is true, she alleged in her answer that the claims with the exception of that of Cassels, Potter and Bentley were exorbitant and excessive, but she offered no evidence to meet appellant’s case in that respect. Her attack was on the theory of collusion in both the equity and bankruptcy proceedings, and on that theory she asked that the petitions be denied in toto. The court found that the suit for an equity receivership was collusively brought, but it did not find that Fentress was knowingly a party to the collusion. Notwithstanding the fact that his appointment as equity receiver was one of the objects of the collusion, the court said he was entitled to compensation. It further found that there was no collusion in the appointment of Fen-tress as receiver in bankruptcy, but that he was appointed on the court’s own initiative, and uninfluenced by any outside recommendations. . The court commended him in the highest terms, and said he deserved the appointment as receiver in bankruptcy on account of his vigilance, honesty and industry, and the valuable service which he had rendered in the equity receivership. It further stated that no creditor, debenture holder nor anyone had objected to such appointment, and that there was no collusion in the naming of counsel. It is obvious, therefore, that the court’s views were not the same as appellee Ettelson’s. The opinion proceeds upon the theory that the court of bankruptcy had a right to review the prior allowances made both in the equity receivership and also by a different judge in the same court of bankruptcy. The court said: “While the objecting creditor has not contested the amount of the fees, if the right to recover exists’ at all, the court is not so readily absolved from responsibility. The court must determine the reasonableness of the charges, even though no objections are made by any security holder.” With respect to the issue relied upon by appellee Ettelson, the court said: “Whether the compensation of a receiver appointed under the circumstances here shown should bo denied in toto (where creditors do not object and the receiver renders valuable and honest service) or whether such compensation should be charged to the plaintiff who brought the suit, need not be decided in view of my determination of the fair value of the receiver’s services necessarily rendered.” We are constrained to believe that a decision of the two questions referred to was quite necessary for a proper and final determination of the suit, and we think the language of the opinion when considered in its entirety answers both questions negatively. In stating the issues to be considered, the court had said: “There are two specific questions which the court must determine: (a) Was there such collusion * * * as to justify the refusal of any compensation to him and to his attorneys? (b) If not, what sum would compensate him for work performed and what sum should be allowed his counsel for services rendered?” This means that unless the first question were answered negatively, it would be unnecessary to answer the second. However the court said: “I fix the value of his services at $12,500 in this ease.” This we think negatives the idea that the court was not passing on the question of sufficient collusion to justify the refusal of fees. The petitions involved final allowances for services, the settlement of which would permit a closing of the trusts immediately. If the issues were such as to permit a final adjudication as to all controverted questions, a speedy administration of justice would demand that they be determined at once. The court said that the bankruptcy receivership was not tainted by collusion and that the services rendered therein were of much value and well performed. If under such circumstances those services were necessary, the statutes required payment therefor, and there was no ground for denying payment in toto, or compelling payment from any source except the estate. It is clear that the court placed what it regarded as a fair value on the services of each petitioner, and this included all services in both receiverships. The court said: “Under all the circumstances the court finds that the allowance of $12,500 in each case is sufficient. The court concludes that further allowance in either case would be unjustifiable.” In other words, there is presen* a clear intention to compensate petitioner." for all necessary services rendered, and that intention is accomplished by paying for all necessary services rendered in the bankruptcy receivership and the ancillary equitable receivership by permitting petitioners to retain what the court regarded as an excessive allowance in the equity receivership. If the court hád authority to review the prior allowances of" another judge in the determination of values, it was likewise authorized to determine whether those allowances should be denied in whole or in part and refunded to the estate. Surely it will not be presumed that the court intended to pay for services which it considered valuable, if necessary, out of funds in petitioners’ hands which later might be recovered in toto for the benefit of the estate. That could scarcely be regarded as compensation. There was no reason for leaving that question open for future consideration, and there were many reasons for not doing so. We think it was not left open but was decided in the negative. The opinion states that the court’s valuation covers all services necessarily rendered. It nowhere holds that petitioners’ services were not necessary, but it suggests that there was, no ground for the appointment of the receiver in bankruptcy under subdivision 3 of section 2 of the Bankruptcy Act (11 USCA § 11 (3). With that suggestion there can be no controversy, for there was no finding of necessity, and under those circumstances, the equity receiver should have continued in possession. That fact, however, does not necessarily mean that the receiver’s services in the bankruptcy were not necessary. Both proceedings were before the same judge, and no objection was raised by anyone. If there had been, the error, no doubt, would have been immediately corrected by permitting the first receiver to continue in possession or by showing a necessity for the appointment of the second, for at no time was there a clash of jurisdiction. Fentress was not a lawyer, and in view of the fact that no person interested made objection, he had no reason to question the court’s power. He did precisely the same work in the bankruptcy receivership that ho would have done in the equity receivership had it continued. No one questioned his able administration or doubted the necessity of his services. That he acted in good faith is evidenced by the fact that during the receivership he refused to accept any compensation from the business corporation of which he was a member, but relied upon the appointment made by the bankruptcy court, and devoted his entire time to that work, to the satisfaction of everyone concerned. Certainly the bankruptcy court which operates on equitable principles should not be heard to say under these circumstances that Fentress should lose the value of his services on the ground that they were not necessary, merely because of the court’s oversight in making the appointment. Especially should this not be done where, -as here, there was no objection made, and the question was raised for the first time after appellant filed his brief in this court. To do so would clearly be inconsistent with the ruling as to receiver’s fees and costs in Harkin v. Brundage, 276 U. S. 36, 48 S. Ct. 268, 72 L. Ed. 457, and Palmer v. Texas, 212 U. S. 118, 29 S. Ct. 230, 53 L. Ed. 435. This brings us to the question: Did the District Court have the power to review the orders of allowance for services by another District Judge of the same court in the same case? The court based its right to review those orders on Gross v. Irving Trust Company, 289 U. S. 342, 53 S. Ct. 605, 77 L. Ed. 1243, 90 A. L. R. 1215. We think the question presented in the instant case was not involved in the Gross Case. There the sole question was whether or not the state chancery court had the power to fix the compensation of its receivers and their counsel after bankruptcy had supervened within four months of the filing of the bill of complaint in, and the appointment of receivers by that court. It was there held that the state chancery court had.no such power. But in the instant ease the allowance of $7500 to each of the petitioners was made by the District Court sitting in chancery before bankruptcy had intervened. The second allowance of $5000 to each petitioner was not made by' a different court, but by the bankruptcy court itself although by a different judge. In Heinze v. Butte & Boston Consolidated Mining Co. (C. C. A.) 129 F. 337, it was held that allowances to a receiver before final settlement are interlocutory rather than final, and that they therefore are not appealable, but are subject to review on final settlement of the receiver’s account. In Hume v. Myers (C. C. A.) 242 F. 827, 830, a court of equity had appointed receivers of a corporation on the ground of insolvency at the instance of a stockholder owning nearly all the stock, in a proceeding to which no creditor, secured or unsecured, was made a party by service. "While the property was undisposed of in the hands of the receivers, the corporation was adjudicated a bankrupt. The court of equity then ordered its receivers to turn over the corporate property to the trustee in bankruptcy, and by the same order fixed the compensation of the receivers and their counsel, without making provision for its payment. The question was whether the order of the court of equity, making the allowances, was binding as res adjudieata on the court of bankruptcy. In holding that such order was not binding, the court said: “There is a distinction between the effect of the order before us and an order of a court of equity making such allowance, where the property has, through the instrumentality of the receivers, been disposed of, and the purchase money is in the hands of the receivers. In the latter situation there is reason in the view, though we do not commit ourselves to it, that the court of equity turns over only the net fund in its hands after deducting the expenses incurred in its production, including the compensation of its receivers and their counsel. It is true that in many of the cases broad language is used in favor of the authority of courts to fix the compensation of their officers; but these eases related to allowances and payment from funds in hand, not to fixing charges upon specific property to be turned over to the bankruptcy court. [Citing eases.] * * * When the court of equity has not reduced the property to money, it is not in possession of that definite knowledge of the value of the property which is an important factor in finally fixing compensation. “Any real services * * * win be allowed as a preferred claim in the administration of the property and the distribution of its proceeds to the extent that the services have benefited the estate. * * * But orders for such allowances are purely administrative, subject to entire disallowance or change by either increase or decrease with the development of the administration. The order of Judge Waddill * * * making allowance to the receivers was purely administrative. It was subject to change at his discretion at any time at least before actual payment, as long as he had the responsibility of administration. When the responsibilitjr of administration fell upon Judge McDowell, with it came the power to exercise the' same discretion. The point of logical contradiction, not to say absurdity, is reached when it is said that an allowance which Judge Wad-dill could have revoked, or increased or diminished, at his discretion, attached to the property as it passed to the bankruptcy court as an unalterable judgment beyond the control of the judge of the bankruptcy court. “The true rule is this: When a court of equity appoints receivers of corporate property, its allowance to its receivers and their attorney is an administrative order, presumptively right as to the justice of the allowance. When the corporate property falls by operation of law into the bankruptcy court, that court by comity will indulge the presumption in favor of the correctness of the allowance; but the court of bankruptcy, having the responsibility of administration, must exercise its independent judgment, giving due weight to ihe presumption in favor of the administrative finding of the court of equity. This, we think, is what the Supreme Court meant in the case of In re Watts, 190 U. S. 1, 23 S. Ct. 718, 47 L. Ed. 933, when it said: sIt has been already assumed that the bankruptcy proceedings operated to suspend the further administration of the insolvent’s estate in the state court, but it remained for the state court to transfer the assets, settle the accounts of its receiver, and close its connection with the matter. Errors, if any, committed in so doing, could be rectified in due course and in the designated way.’ “The rectification of erroi’s in duo course and in the designated way here referred to must mean rectification by the bankruptcy court, for after the assets are turned over to that court all orders relating to the matter must emanate from that court.” We are in accord with the principles enunciated in the case last quoted, and we ihink they are applicable to the facts now before us, even though the receivers here had sold a large amount of securities which they had received as a part of the assets. We think it illogical to say that a court of baukmptcy has a right to review allowances for services made to a receiver by a prior judge when the assets have not been converted into cash; but if they have been converted into cash there is no right of review, and that only the net fund shall be turned over to the bankruptcy court after deducting the expenses incurred in its production, including compensation for its receivers and their counsel. We think the right to review must be based on a more reasonable and rational basis than the mere incident of sale of assets. There is a line of cases, however, holding that one judge will not review the rulings of another in the same court. Appleton v. Smith, 1 Fed. Cas. page 1075, No. 498; Commercial Union of America v. Anglo-South American Bank (C. C. A.) 10 F.(2d) 937; Hardy v. North Butte Mining Company (C. C. A.) 22 F.(2d) 62; Jurgenson v. National Oil & Supply Co. (C. C. A.) 63 F.(2d) 727. With this principle we are in accord, but we think it is not applicable to the case at bar. In each case cited in support of the rule, the question raised related to an action or nonaction of the court which was purely judicial in its character, and not administrative. In the Appleton Case, a. Circuit Justice, sitting in the District Court, declined to consider a motion to quash an attachment on the ground of wrongful issuance, because the regular judge of that district had formerly overruled a like motion in the same case. In the Commercial Union Case, it was held that where a District Judge denied a motion to dismiss a complaint, his decision was the law of the case, and should have been so recognized by another judge subsequently sitting in the same court and in the same case. In the Hardy Case, it was held that where an order appointing receivers is made in a suit within the jurisdiction of the court making the order, and in the exercise of judicial discretion, another judge sitting' in the same court, and on the same record, may not of his .own motion or otherwise vacate the order of appointment because, in his opinion, the order was mistakenly or improvidently made. The same ruling was followed on practically the same facts in the Jurgenson Case. Counsel for appellant have also cited Gross v. Irving Trust Company, supra, in support of the rule. That ease involved the allowance of fees by a state chancery court after bankruptcy bad intervened. A review was permitted and the allowance was set aside because the chancery court had no power to make an allowance after bankruptcy bad intervened. That ruling is not tantamount to holding that the allowances of an equity receiver, made before bankruptcy, may not be reviewed by the bankruptcy court, for that question was not before the court. It seems to us that the rule was intended to apply to orders and rulings of the court which arc purely judicial in their character, that is to say, rulings upon questions of law, or law and fact, upon which the orderly procedure of the case depends. Its object, of course, was to expedite the administration of justice, and to prevent undue controversies between courts of co-ordinate jurisdiction. We think, however, that the rule was never intended to apply, and cannot logically be applied, to purely administrative orders of the court, such as allowances for compensation. So far as we know, those questions have always been considered open ones, for modification and revision, until the final report is approved. This is obviously true where there has been no change of judge; and when the jurisdiction of the original judge ceases by operation of law, or otherwise, before the final report is approved, as in this ease, we think it necessarily follows that his successor in jurisdiction of the subject matter must have the same powers as the original judge. This was evidently the view of the judge of the equity court, for after bankruptcy had intervened and while he was sitting in bankruptcy, he allowed $5000 to each petitioner, for their work in the equity ease, and in each order, he expressly reserved the matter of final determination of compensation until further order. That the petitioners considered the matter an open one is evidenced by the fact that their elaims whieh were allowed were stated by them to be “on account.” We hold that the court had the power to review the allowances made by his predecessor in the bankruptcy case, and also those made in the equity court. The remaining question is as to the amount of the allowances and these we are not inclined to disturb. The amount that should be allowed as compensation for such seryices as were performed here is a matter concerning whieh ’ men might honestly disagree. There is no hard and fast rule whieh can accurately guide the arbiter and safely protect all parties against every contingency. The trial court’s judgment in such matters is quite as likely to be right as ours, and we are not permitted to disturb his judgment in this respect unless there is clear error, or such abuse of discretion as would amount to error. We have no doubt that the compensation sought was excessive. It may be truthfully said that the claims were no larger than others whieh have been allowed for similar services, in fact there have been many whieh were much larger. Past custom might well be considered as a matter of justification in filing the claims, but it does not fully answer the merits of the question before us. We think that quite generally allowances to receivers and their counsel have been greatly exorbitant, and that the office of receiver has been made entirely too attractive in this respect. Of course first class men should be paid first class compensation, and the courts should seek no others for their receivers. It would be most unfortunate for the courts and the people generally if compensation for such officers were reduced to such an extent as to render the services of capable men inaccessible. If that condition arises it will be corrected, but until it becomes more imminent than it is at present, we feel there is no cause for alarm. It is true that there is no testimony as to values in the record which would precisely support the court’s finding, but we think that was not necessary. The court cannot be bound by agreements of counsel on questions of this kind, and especially is this true when all parties-interested in the amount of the allowance are not represented by counsel. The court may and should exercise its own judgment as to values, and unless there is an abuse of discretion in this respect we are not permitted to interfere. We can not say from the evidence or the lack of evidence in this record that the court abused its discretion. Order affirmed. Findings of Fact. “1. That the sum of $12,500 heretofore paid said Galvin Fentress is adequate compensation for all of the services which were necessarily rendered by him as receiver in the equity suit in the Northern District of Illinois and in the ancillary receivership matter in the Southern District of New York and in the bankruptcy receivership matters. “2. That the sum of $12,500 heretofore paid to attorneys Allen and Dalbey is fair and reasonable compensation for all of the legal services which said firm necessarily rendered to their client, Galvin Fentress, receiver in equity and as receiver of the estate of Insull Utility Investments, Inc., a bankrupt. “3. That the sum of $12,500 heretofore paid to attorneys Gassels, Potter and Bentley is fair and reasonable compensation for all of the legal services which said firm necessarily rendered to .their client, Calvin Fentress, receiver in equity and as receiver of the estate of Insull Utility Investments. Ine., a bankrupt.” As Conclusions of Law. “The court finds that no further compensation should be allowed out of the bankrupt estate of Insull Utility Investments, Ine. either to Galvin Fentress for services by him rendered as equity receiver or as receiver of the estate of Insull Utility Investments, Inc., a bankrupt, or to Allen and Dalbey, as attorneys for said Calvin Fentress, receiver, or to Gassels, Potter and Bentley, as attorneys for said Calvin Fentress, receiver.” Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_r_fiduc	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 "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Arlene B. SINGER, et al., Appellants, v. SHANNON & LUCHS COMPANY, et al. No. 87-7053. United States Court of Appeals, District of Columbia Circuit. March 3, 1989. Before ROBINSON and WILLIAMS, Circuit Judges, and GORDON, Senior District Judge. Of the United States District Court for the Eastern District of Wisconsin, sitting by designation pursuant to 28 U.S.C. § 294(d). Opinion PER CURIAM. ORDER Upon consideration of appellants’ Petition for Rehearing it is ORDERED, by the court, that the petition is denied, as is more fully set forth in the opinion of the Court filed herein this date. PER CURIAM: Plaintiff-appellants, Arlene B. Singer and Joel D. Joseph, have petitioned for rehearing of our order granting Shannon & Luchs’s motion for attorneys’ fees. Their objection is that Shannon & Luchs’s motion was filed nearly a year after our unpublished judgment in its favor and was therefore in violation of Fed.R.App.P. 39’s requirement that a bill of costs thereunder be filed within 14 days of entry of judgment. We write briefly to explain that our order was based upon Fed.R.App.P. 38 and that, under its terms and in the absence of any rule of this court to the contrary, there is no time limit for motions under Rule 38 other than the principles of laches. Rule 38 states in its entirety: If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee. Plainly its language imposes no time limit on the filing of a bill of costs. Indeed, some courts regard the interest in discouraging frivolous appeals as so compelling that no motion is necessary, and they award Rule 38 costs sua sponte. See, e.g., Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1200-03 (7th Cir.1987). Other circuit courts have held that while the term “costs” in Rule 39 excludes attorneys’ fees, the reference in Rule 38 to “just damages and single or double costs” comprises them. See, e.g., Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59, 64 (3rd Cir.1986); District No. 8, Int’l Ass’n of Machinists & Aerospace Workers v. Clearing, 807 F.2d 618, 623 (7th Cir.1986); Nagy v. Jostens, Inc., 787 F.2d 446, 447 (8th Cir.1986); Hewitt v. City of Stanton, 798 F.2d 1230, 1233 (9th Cir.1986); Triola v. Department of Transportation, 769 F.2d 760, 762 (Fed.Cir.1985) (citing Moir v. Department of Treasury, 754 F.2d 341 (Fed.Cir.1985), a Rule 38 case). There is a dictum to the contrary in Montgomery & Associates, Inc. v. CFTC, 816 F.2d 783, 784 (D.C.Cir.1987), but it provides no basis for rejecting the views of our sister circuits. The case concerned a fees motion under 7 U.S.C. § 18(e) and simply held that the time limit of Rule 39(d) should be applied to a fees motion filed thereunder. The dictum as to Rule 38 was part of a general argument as to the unwisdom of allowing claims for attorneys’ fees without fixed time limits (i.e., an argument that laches is an inadequate limit in any circumstance). Its sole authority for the idea that Rule 38 costs do not encompass attorneys’ fees was Seyler v. Seyler, 678 F.2d 29, 31 (5th Cir.1982). In fact that decision is quite the opposite. In awarding attorneys’ fees it rejected the losing party’s claim that Rule 39’s 14-day time applied. The court explained that Rule 39 did not encompass attorneys’ fees, but that Rule 38 “provide[d] penalties for [frivolous] appeals,” 678 F.2d at 31, and did encompass them. The outcome made clear that the court did not consider Rule 39(d)’s time limitation applicable by osmosis to Rule 38 applications, and did not speak to any other possible limits. Montgomery & Associates cannot be said to establish a general rule of the circuit that it is impermissible to allow fee requests limited (in time of application) only by laches. Such a notion would be inconsistent with prior circuit law. See Alabama Power Co. v. Gorsuch, 672 F.2d 1, 5-6 (D.C.Cir.1982) (per curiam) (a motion for attorneys’ fees under 42 U.S.C. § 7607(f) (1982), which defines “costs” as including attorneys’ fees, is not subject to the 14-day limit of Rule 39(d)); Environmental Defense Fund v. EPA, 672 F.2d 42, 61 (D.C.Cir.1982) (because 15 U.S.C. § 2618(d) expressly distinguishes attorneys’ fees from costs, equity supplies only time limitation for attorneys’ fees). The allowance of an application under Rule 38 long after the time will have expired for a bill of costs under Rule 39 is justified by the special purpose of the former rule. It seeks to deter and punish frivolous appeals. The social interest in so doing, and the standard of egregiously objectionable conduct that triggers its application, justify imposing fewer technical restrictions. The appeal in this case was frivolous. Whatever the limit implicit in laches, the delay in this case does not reach it. We conclude with the following dictum of our own, offered in the hopes of forestalling further litigation: in light of the brevity of our previous order, and the relative length of this opinion, the latest petition for rehearing was not itself frivolous. REHEARING DENIED. Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. 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". Larry Gene HULL, Appellee, v. Robert M. FREEMAN; Ernest D. Preate, Jr., Attorney General, Appellants. No. 90-5900. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) March 6, 1991. Decided May 10, 1991. John F. Nelson, Dist. Atty., Chambers-burg, Pa., for appellant. James V. Wade, Federal Public Defender, Harrisburg, Pa., for appellee. Before BECKER, NYGAARD and HIGGINBOTHAM, Circuit Judges. OPINION OF THE COURT BECKER, Circuit Judge. This is an appeal from an order of the district court “provisionally” granting Larry Gene Hull’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Hull is presently serving a sentence of life imprisonment for murder in the first degree, which was imposed by the Court of Common Pleas of Franklin County (Pennsylvania) following Hull’s plea of guilty in 1979. Hull filed the instant habeas petition in the United States District Court for the Middle District of Pennsylvania contending, inter alia, that he had received ineffective assistance of counsel at the July, 1979 competency hearing held prior to his plea of guilty. More specifically, he asserts that his trial attorney’s performance at the competency hearing was deficient because counsel failed to cross-examine the Commonwealth’s psychiatrist and to call witnesses on his behalf. Hull contends that as a result of- this inadequate representation, he was permitted to plead guilty to murder while in an incompetent state. On July 13, 1990, the district court filed an opinion in which it seemed to agree that Hull had received ineffective assistance of counsel during the July, 1979 competency hearing. On September 11, 1990, the court entered an order “provisionally” granting the writ and remanding the matter to the state court for the purpose of holding a hearing to re-determine Hull’s competency as of July, 1979. The District Attorney of Franklin County, representing the Commonwealth of Pennsylvania, now appeals this order. This appeal presents, as a preliminary matter, interesting questions of appellate jurisdiction, exhaustion of state remedies, and procedural default. We address the latter issue at some length because it appears that one of our important decisions in this area, Bond v. Fulcomer, 864 F.2d 306 (3d Cir.1989), has been effectively overruled by the Supreme Court’s decision in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Ultimately, we decide that these three threshold issues do not present a bar to our reaching the merits of the Commonwealth’s appeal. On the merits, the Commonwealth contends that the district court erred in holding that Hull received constitutionally ineffective assistance of counsel at the 1979 competency hearing. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance must show (1) that counsel’s performance was deficient and (2) that he or she was prejudiced by counsel’s error. The district court, however, neglected to bifurcate its Strickland discussion along these lines, somewhat obscuring its analysis. Although we are confident that the district court found that the first prong of Strickland has been met (and we endorse that conclusion), we are unsure whether the district court actually held that Hull was prejudiced by his trial counsel’s deficient performance. We think that the district court’s opinion, when read in conjunction with its accompanying orders, admits of two plausible (and legally problematic) constructions. On the one hand, the district court might have found that Hull has satisfied only the first prong of Strickland and that an evi-dentiary hearing is necessary to determine whether Hull was prejudiced by counsel’s errors — i.e., whether there is a reasonable probability that Hull would have been found incompetent at the July, 1979 competency hearing but for counsel’s deficient performance. If this interpretation is correct, however, the district court should have conducted the evidentiary hearing itself, see Keller v. Petsock, 853 F.2d 1122 (3d Cir.1988), rather than remand the matter to the state court. On the other hand, in view of the tenor of its opinion (notwithstanding the tenor of its September 11th order, which seems to cut the other way), the district court arguably found that Hull has satisfied both prongs of Strickland. If this interpretation is correct, however, the district court should have vacated Hull’s guilty plea, rather than order a hearing to determine Hull’s competency as of July 1979. Because we are unsure of the legal significance of the district court’s decision, we will vacate the order of the district court and remand this case for clarification and further proceedings. I. FACTS AND PROCEDURAL HISTORY Hull was charged in 1975 with the murder of Lloyd Shatzer. At a preliminary hearing held on March 7, 1975, the Franklin County Court of Common Pleas found Hull incompetent to stand trial and committed him to Farview State Hospital. Hull remained at Farview until another competency hearing was held on July 31, 1979. At that hearing, Dr. Harry Stamey, a psychiatrist and the Commonwealth’s only witness, testified that he believed Hull to be competent to stand trial based on his examination of Hull on April 20, 1979. Hull’s attorney neither cross-examined Dr. Stamey nor presented witnesses on Hull’s behalf, notwithstanding that two different attending psychiatrists at Farview, Dr. Kenneth De-trick and Dr. Lawrence Chang, recently had found Hull to be incompetent to stand trial. Counsel’s failure to call Dr. Detrick as a witness is particularly striking because Dr. Detrick had examined Hull on April 9, 1979, just eleven days before Dr. Stamey’s examination, and had concluded that Hull remained incompetent to stand trial. Not surprisingly, the Court of Common Pleas accepted Dr. Stamey’s unrebut-ted testimony and on July 31, 1979, determined that Hull was competent to stand trial. After Hull was found to be competent, a trial was scheduled for September 10, 1979, on the 1975 murder charge. On August 3, 1979, however, Hull entered a plea of guilty to murder generally. A degree of guilt hearing was then held on August 31, 1979, at which the Court of Common Pleas found Hull guilty of murder in the first degree and imposed a sentence of life imprisonment. After Hull’s motion to modify the sentence was denied on September 28, 1979, Hull appealed the sentencing decision of the Court of Common Pleas to the Pennsylvania Supreme Court. On September 24, 1981, the Pennsylvania Supreme Court affirmed the trial court’s judgment of sentence, 495 Pa. 644, 435 A.2d 1204. Meanwhile, Hull had begun his quest to secure collateral relief under Pennsylvania’s Post Conviction Hearing Act (“PCHA”), 42 Pa.Con.Stat.Ann. § 9541 et seq. On January 19, 1981, Hull filed a PCHA petition with the Court of Common Pleas, which the District Attorney claimed (and Hull now concedes) was premature. On July 18, 1986, after Hull’s appeal from the trial court’s judgment of sentence was rejected by the Pennsylvania Supreme Court, and his motion for modification of sentence (dated July 7, 1986) was denied as well, Hull filed an amended PCHA petition, which was ordered consolidated with his pending petition. Hull’s consolidated PCHA petition essentially raised the following four issues: (1) Whether trial counsel was ineffective for failing adequately to pursue the issue of defendant’s competency to stand trial at the proceedings held in 1979, wherein defendant was arraigned, entered a guilty plea, underwent a degree of guilt hearing and was sentenced; (2) Whether trial counsel was ineffective for failing to pursue the issues of defendant’s alleged diminished capacity through the production of expert and lay testimony; (3) Whether defendant’s rights were violated by a failure to apprise him adequately of the Miranda warnings; and (4) whether defendant’s guilty plea was coerced. After holding hearings on July 21, 1987, and on November 9, 1987, the Court of Common Pleas denied Hull’s PCHA petition, rejecting all post-conviction claims of error. Hull then appealed the trial court’s denial of his PCHA petition to the Pennsylvania Superior Court. His brief to the Superior Court, however, raised only one of the above four issues — namely, the purported ineffectiveness of trial counsel at the July, 1979 competency proceeding. On September 30, 1988, the Superior Court affirmed the trial court’s resolution of the ineffectiveness issue. Subsequently, Hull’s counsel failed to file a timely petition for allocatur with the Pennsylvania Supreme Court. Once Hull learned of his counsel’s failure to appeal, he petitioned pro se for allocatur nunc pro tunc. This petition was denied without comment by order of the Pennsylvania Supreme Court dated February 21, 1989. On May 8, 1989, Hull filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the district court for the Middle District of Pennsylvania. In his petition, Hull alleged that his trial counsel was ineffective for failing to pursue adequately the issue of his competency to stand trial in 1979. He also averred that his lawyer had neglected to press vigorously certain Miranda and coerced plea issues. Hull’s petition was referred to a United States Magistrate Judge for preliminary consideration. In a report dated December 26, 1989, the magistrate judge recommended that Hull’s habeas petition be dismissed with respect to the Miranda and coerced plea claims due to state procedural defaults — i.e., Hull’s failure to raise these claims in his PCHA appeal to the Pennsylvania Superior Court. On review, the district court adopted the magistrate judge’s recommendation regarding these two claims and remanded the case for further proceedings on the issue of whether Hull’s counsel was ineffective at the July, 1979 competency hearing (the “competency issue”). In his final report, the magistrate judge determined that Hull had exhausted his state-court remedies with respect to the competency issue. On the merits of Hull’s petition, however, the magistrate judge recommended that the writ be dismissed, concluding: Since it would appear that the testimony of Dr. Stamey, the colloquy during the August 3, 1979 hearing, and the subsequent report of Dr. Sadoff would support the superior court’s finding that petitioner was competent to stand trial, even though counsel might have launched a more searching inquiry, it does not appear that counsel was ineffective. Pursuant to Local Rule 904.2, Hull filed objections to the magistrate judge’s report with the district court. On July 13, 1990, the district judge, reviewing de novo the magistrate judge’s report, determined that Hull had received ineffective assistance of counsel at the July, 1979 competency hearing. The district court noted that Hull had been heavily medicated throughout August of 1979, the month in which Hull pleaded guilty and was sentenced to life imprisonment. In addition, the district court observed, several of Hull’s remarks during the August 3, 1979, arraignment bordered on nonsensical. Most importantly, the district court expressed utter dismay over trial counsel’s decision at the July, 1979 competency hearing to neither cross-examine the Commonwealth’s sole witness nor present any rebuttal evidence. The district court concluded that “[t]he failure of Hull’s attorney to cross examine the state’s expert or call witnesses on behalf of Hull at the competency hearing on July 31, 1979, indicates that Hull was denied a full and fair competency hearing.” The district court’s accompanying order “granted” Hull’s petition for writ of habeas corpus and required that a new evidentiary hearing be held on Hull’s competency to stand trial, but instructed the parties to attempt to agree on a proposed form of order. On September 11, 1990, the district court entered a second order (the “September 11th Order”), which “provisionally” granted Hull’s petition for writ of habeas corpus and remanded the matter to the Franklin County Court of Common Pleas for the purpose of holding a hearing to determine Hull’s competency as of July, 1979. See supra n. 1. The Commonwealth filed a timely notice of appeal from this order on September 28, 1990. II. DISCUSSION A. Appellate Jurisdiction Upon initial review of this appeal, we asked counsel to address the issue of appellate jurisdiction in light of our decisions in Marshall v. Lansing, 839 F.2d 933, 940-41 (3d Cir.1988) (order remanding to administrative agency for further litigation is not final because “in habeas proceedings, the district court has not finally disposed of a case until it either grants or denies the writ”), and United States ex rel. Fielding v. Degnan, 587 F.2d 619 (3d Cir.1978) (order granting petition for writ of habeas corpus is not final because order contemplated a subsequent hearing before the district court to determine custodial status). At that time, we were concerned that the district court’s September 11th Order might not be final. Upon further review, however, we are now confident that we do have jurisdiction to consider this 'appeal. The courts of appeals have jurisdiction over appeals from all “final decisions” of the district courts. 28 U.S.C. § 1291. Section 2253 of Title 28 of the United States Code provides, more specifically, that the “final order” in a habeas corpus proceeding is subject to review by the court of appeals for the circuit in which the proceeding took place. It is well-settled that a district court order conditionally granting a habeas corpus petition and directing the state to discharge the petitioner unless he or she is retried within a certain number of days is “final” for purposes of sections 1291 and 2253. See Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 265-66, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); United States ex rel. Thomas v. New Jersey, 472 F.2d 735, 742 (3d Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 121, 38 L.Ed.2d 123 (1973); cf. Heirens v. Mizell, 729 F.2d 449, 454 (7th Cir.) (“ ‘A final judgment in a habeas corpus case either denies the petition or orders the petitioner released at a specified time.’ ” (citation omitted)), cert. denied, 469 U.S. 842, 105 S.Ct. 147, 83 L.Ed.2d 85 (1984). The September 11th Order, which “provisionally” (or conditionally) grants Hull’s ha-beas petition, fits within the genre of orders held to be final and appealable in the above cases. It directs that, if the Court of Common Pleas ultimately finds that Hull was incompetent in July of 1979, Hull shall be released from custody unless he is retried within 120 days of the state court’s competency determination. See supra at n. 1. Although the district court’s September 11th Order remanded the case to the Court of Common Pleas for the purpose of conducting a competency hearing, it remains distinguishable from the order at issue in Fielding. The order in Fielding stated that, unless a constitutional bail was set for the petitioners by the state court prior to a certain date, petitioners should reappear in the district court on that date “at which time the terms of the enlargement shall be set.” 587 F.2d at 620. In contradistinction, the September 11th Order by its terms does not contemplate further proceedings before the district court. It is therefore quite literally the district court’s “final” order, “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). B. Exhaustion of State Remedies and Procedural Default We noted above in our recitation of the facts and procedural history that Hull, in prosecuting his PCHA petition, failed to file a timely petition for allocatur with the Pennsylvania Supreme Court. This omission, at least as an intuitive matter, prompts concerns that Hull’s federal habeas claim might be either unexhausted or procedurally waived. Neither party, however, raised these issues on appeal. In view of the interests of comity and federalism that undergird these two requirements, we nonetheless will address each of them here in order to alleviate any lingering doubt regarding the propriety of federal habeas review in this case. The exhaustion requirement is codified at 28 U.S.C. §§ 2254(b) and (e). Simply stated, these sections require a petitioner to exhaust all means of relief available under state law before filing a federal habeas petition. See Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir.), cert. denied, — U.S. -, 111 S.Ct. 46, 112 L.Ed.2d 23 (1990). The petitioner must fairly present each of his federal claims to the state courts. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). If the state courts have not had an opportunity to pass on and correct each claim of error asserted in the habeas petition, the petitioner has not complied with the exhaustion prerequisite to federal habe-as relief. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Chaussard v. Fulcomer, 816 F.2d 925 (3d Cir.), cert. denied, 484 U.S. 845, 108 S.Ct. 139, 98 L.Ed.2d 96 (1987). Without much elaboration, the magistrate judge’s report in this case, which was adopted by the district court, held that Hull had exhausted his state remedies regarding his claim of ineffective assistance of counsel at the July, 1979 competency hearing. In view of our decision in Bond v. Fulcomer, 864 F.2d 306 (3d Cir.1989), we think that the magistrate judge correctly applied the exhaustion requirement to Hull’s petition. The facts in Bond are identical to those sub judice: petitioner’s counsel had failed to file a timely petition for allocatur with the Pennsylvania Supreme Court; thus, petitioner filed a pro se petition for allowance of appeal nunc pro tunc, which was ultimately denied by the Pennsylvania Supreme Court without comment. The Bond panel held that the petitioner’s mere “presentment of an untimely petition to the state’s highest court represented] substantial compliance with the ... exhaustion requirement.” 864 F.2d at 309. Since the petitioner in Bond had clearly outlined his claim to the Pennsylvania Supreme Court (albeit in an untimely fashion) prior to filing his federal habeas petition, the panel concluded that the exhaustion requirement had been satisfied. Id. at 309-10. That Hull also complied with the exhaustion rule by filing his petition for allocatur nunc pro tunc, in our view, follows a fortiori from Bond. Although our decision in Bond obviates further exhaustion inquiry here, it suggests that there might be another problem with Hull’s petition, namely, procedural default. The doctrine of procedural default in effect makes compliance with all relevant state-law procedural rules a precondition to federal habeas relief. In generic terms, if a defendant fails to comply with a state procedural requirement, and that failure prevents the defendant from obtaining relief on a claim of trial error from state court, then federal habeas relief on that claim is also procedurally barred absent a showing of “cause” for the default and “prejudice” attributable thereto. Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). In light of the Supreme Court’s decision in Sykes, we must decide whether Hull’s failure to file a timely petition for allocatur with the Pennsylvania Supreme Court constituted an adequate and independent state procedural ground barring federal habeas review in this case. Before answering this question, however, we must determine whether the Pennsylvania Supreme Court, in dismissing Hull’s petition for allocatur nunc pro tunc, relied on procedural grounds (i.e., untimeliness) or forgave Hull’s procedural default and reached the merits of his appeal. This determination is made particularly difficult by two factors. First, the Pennsylvania Supreme Court was not precluded from reaching the merits of Hull’s PCHA petition by virtue of Hull’s failure to file a timely petition for alloca-tur. Under Pennsylvania law, a court may allow an appeal nunc pro tunc if the appellant establishes that the appeal was untimely as a result of “fraud or its equivalent, or a breakdown in the court’s operation.” See Commonwealth v. Englert, 311 Pa.Super. 78, 81, 457 A.2d 121, 123 (1983). That the Pennsylvania Supreme Court considered Hull’s appeal on the merits therefore would not necessarily be inconsistent with Hull’s contention that his appeal was untimely due to counsel’s unprofessional dilatoriness. Second, we cannot discern the Pennsylvania Supreme Court’s intention in denying Hull’s petition for allocatur nunc pro tunc because the Court did so without comment. Absent any external guideposts, we are thus left to speculate whether Hull’s petition was denied on the merits or on procedural grounds. The panel in Bond was confronted with this identical quandary. Because the Pennsylvania Supreme Court in that case also had denied the habeas petitioner’s untimely petition for allocatur without comment, the panel was unsure whether that denial reflected “a consideration and dismissal of the merits or constitute^] a dismissal on procedural grounds caused by untimeliness.” 864 F.2d at 310. Applying what it perceived as “the partiality for a finding of procedural default,” the panel ultimately concluded that the Pennsylvania Supreme Court had denied the petition for allocatur because it was untimely filed. Id. at 311. To alleviate future confusion, the panel announced a rule to be applied prospectively: To facilitate resolution of future claims presented in this procedural posture, we announce today a rule that when a nunc pro tunc allocatur petition is perfunctorily denied without discussion, when its untimeliness is apparent, and when sufficient facts to override the general disal-lowance of extended times for appeal are absent in the petition, the denial of allo-catur can be presumed to be based on a procedural default caused by its untimeliness. Id. After concluding that the Pennsylvania Supreme Court’s denial was premised on a state-law procedural default, the Bond panel declined to decide whether the “cause” and “prejudice” exception applied. Id. at 312. Because the petitioner contended that the “cause” for the procedural default was ineffective assistance of counsel, the panel opted to dismiss the habeas petition without prejudice so that the petitioner could file a state Post Conviction Relief Act (“PCRA”) petition asserting ineffective assistance of counsel for failure to file a timely petition for allocatur. Id. If this PCRA petition proved successful, the panel observed, then state precedent, see Commonwealth v. West, 334 Pa.Super. 287, 295, 482 A.2d 1339, 1343 (1984), would require the Pennsylvania Supreme Court to grant petitioner permission to appeal nunc pro tunc. 864 F.2d at 312. The panel further noted that, if the Pennsylvania Supreme Court were then to deny petitioner’s appeal on the merits, petitioner could return to district court for federal habeas review. Id. Because Bond and the case at bar are factually indistinguishable, at first blush it would appear that we are bound to follow the path of our predecessor and dismiss Hull’s petition without prejudice. See 3d Cir. IOP Chapter 9.1. However, a month after Bond was decided, the Supreme Court decided Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), which undermines the Bond panel’s treatment of the procedural default issue. We therefore think that Bond has ceased to be the law in this circuit. The Supreme Court in Harris, like the panel in Bond, was confronted with a state court order that was ambiguous insofar as it was unclear whether the court had dismissed a habeas petitioner’s appeal on procedural grounds or on the merits. The state court in Harris initially had noted that the issues on appeal were considered waived under state law. Id. at 258, 109 S.Ct. at 1040. Despite these protestations, the state court proceeded to examine the merits of the appeal. Id. In deciding whether this ambiguous invocation of a procedural default barred federal habeas review, the Supreme Court in Harris relied on the “plain statement rule” of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), expressly rejecting a putative presumption in favor of procedural bar that the Bond panel had applied. Under the “plain statement rule,” which previously had been applied in the context of direct review of state court decisions, a federal court may review a state court’s resolution of a federal question unless the state court’s opinion contains a “ ‘plain statement’ that [its] decision rests upon adequate and independent state grounds.” Long, 463 U.S. at 1042, 103 S.Ct. at 3477. Extending application of the “plain statement rule” to federal habeas cases, the Harris Court held that a petitioner’s state-law, procedural default precludes federal habeas review only if the last state court rendering a judgment in the case “clearly and expressly” states that its decision rests on a state procedural bar. 489 U.S. at 263, 109 S.Ct. at 1043. The Harris Court thus concluded that, because the state court had not explicitly relied on procedural waiver as a ground for denying petitioner’s appeal, federal habeas review was not precluded by procedural default. Id. at 266, 109 S.Ct. at 1045. The “plain statement” rule, according to Harris, applies regardless of whether the state court’s order is accompanied by an opinion or simply resolves the appeal without comment. Although the state court judgment at issue in Harris provided an explanation for the court’s decision (which ultimately was found to be ambiguous), that factor had no bearing on the Supreme Court’s application of the “plain statement” rule. Indeed, the Harris Court, in a footnote, expressly stated that its holding also applies to state court affirmances that offer no explanation: • a state court that wishes to rely on a procedural bar rule in a one-line pro for-ma order easily can write that “relief is denied for reasons of procedural default.” Of course, if the state court under state law chooses not to rely on procedural bar in such circumstances, then there is no basis for a federal habe-as court’s refusing to consider the merits of the federal claim. Id. at 265 n. 12, 109 S.Ct. at 1044-45 n, 12. Applying Harris to the instant appeal, it is irrelevant that the Pennsylvania Supreme Court denied Hull’s petition for allowance of appeal without comment. What is critical is that the Pennsylvania Supreme Court’s denial is susceptible of two interpretations: it could rest either on a state procedural bar or on the Court’s resolution of the merits of Hull’s appeal. Absent a clear and express statement that the Pennsylvania Supreme Court based its denial on a procedural default (to wit, untimeliness), we must assume that the Court denied Hull’s appeal on the merits. Accordingly, the district court was not precluded by the procedural default rule from reviewing Hull’s habeas claim that he received ineffective assistance of counsel at the July, 1979 competency hearing. C. Did Hull Receive Ineffective Assistance of Counsel at the July, 1979 Competency Hearing? We turn now to the merits. The Commonwealth in essence contends that the district court erred in determining that Hull received ineffective assistance of counsel at the July, 1979 competency hearing. Resolution of this appeal thus requires us to apply the two-part standard for ineffective assistance of counsel defined by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the question whether the representation a defendant received was constitutionally ineffective is a mixed question, of law and fact, we are “not bound by the clearly erroneous rule.” Morrison v. Kimmelman, 752 F.2d 918, 923 (3d Cir.1985), aff'd, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Instead, “we may freely review the district court’s conclusions.” Lewis v. Mazurkiewicz, 915 F.2d 106, 110 (3d Cir.1990). The first prong of the Strickland test, the performance inquiry, instructs this court to determine whether “counsel’s representation fell below an objective standard of reasonableness.” Id. 466 U.S. at 688, 104 S.Ct. at 2064. “In assessing an attorney’s performance, courts must be ‘highly deferential,’ and ‘must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance....’” United States v. Gray, 878 F.2d 702, 710 (3d Cir.1989) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). However, “[wjhere the deficiencies in counsel’s performance are severe and cannot be characterized as the product of strategic judgment,” the first prong of Strickland is clearly met. Gray, 878 F.2d at 711. If we determine that counsel’s performance was constitutionally deficient, then we must proceed to the second prong of Strickland, the prejudice inquiry. In measuring prejudice, the relevant question is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A “reasonable probability” is defined in this context as “a probability sufficient to undermine confidence in the outcome.” Id. In making this determination, a court must consider the “totality of the evidence” before the factfinder, for “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id. at 695-96, 104 S.Ct. at 2069. Although the district court in this case acknowledged that the two-part Strickland test applied, it failed to bifurcate its subsequent analysis. Rather, the court simply recounted the factors that it considered relevant to Hull’s claim of ineffective assistance and concluded that counsel’s errors had denied Hull a “full and fair competency hearing.” In reviewing the district court’s decision, we therefore are unable to ascertain whether the court held that Hull has satisfied both prongs of Strickland or just the first one. Before proceeding to the presently problematic second prong of Strickland, we note that there is no doubt that the district court actually determined that the performance prong of Strickland was met in this case. This determination, we think, is unassailable. The transcript of the July, 1979 competency hearing consists of a scant four pages. The Commonwealth presented only one witness with respect to Hull’s alleged competency, Dr. Harry Sta-mey. Dr. Stamey tesified that based on his April 20, 1979, examination of Hull, he believed Hull to be competent to stand trial. Hull’s counsel chose to leave this testimony unrebutted; he neither cross-examined Dr. Stamey nor called witnesses to testify on Hull’s behalf. Yet, at the time of the competency hearing, Hull’s counsel was well aware that two other attending psychiatrists at Farview, Dr. Lawrence Chang and Dr. Kenneth Detrick, recently had diagnosed Hull to be incompetent. Dr. Chang, based on a January 19, 1979, examination, opined that Hull’s “reasoning and judgment remain defective” and that he “remains ... incompetent to stand trial.” Dr. Detrick, who had examined Hull on April 9, 1979, just eleven days before Dr. Stamey’s examination, reported that Hull was not “appreciably different from any other examinations.” Regardless of the degree of deference accorded counsel’s performance, we cannot condone the failure of Hull’s lawyer to bring these competing diagnoses to the attention of the factfinder at the competency hearing. At the PCHA hearing before the Court of Common Pleas 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_circuit	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 86-1199. United States Court of Appeals, Fourth Circuit. Argued April 6, 1987. Decided Nov. 12, 1987. Daniel M. Gribbon (Jerome Ackerman, Douglas S. Abel, Covington & Burling, Washington, D.C., James J. Burns, William A. Young, Jr., Wallerstein, Goode & Dobbins, Richmond, Va., on brief), for petitioner. Karen Ruth Cordry, N.L.R.B. (Rosemary M. Collyer, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Associate General Counsel, Elliott Moore, Deputy Associate General Counsel, Peter Winkler, Supervisory Atty., Washington, D.C., on brief), for respondent. Before WIDENER and PHILLIPS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge. ■ WIDENER, Circuit Judge: This is a petition of Prudential Insurance Company of America to review an order of the National Labor Relations Board and the Board’s cross petition for enforcement. Prudential challenges a representation election based on the propriety of a bargaining unit which included an alleged confidential employee. We hold that the employee was not properly included in the bargaining unit and remand the case with instructions. The United Food & Commercial Workers International Union, AFL-CIO-CLC, filed a petition with the Board seeking to represent a unit of office and clerical employees at Prudential’s Cape Cod district office located in Hyannis, Massachusetts. These employees, referred to by Prudential as the field service staff, support the Company’s sales agents in their selling and service functions. There are several job categories that are involved in these functions: service representative, senior service representative, service assistants, service coordinator, senior service coordinator, and assistant to the district manager. These positions comprise the bargaining unit sought by the Union and approved by the Board. The Company’s challenge is directed to the inclusion within the unit of the assistant to the district manager, Patricia Roberts. In May 1985, the Board conducted a pre-election hearing. The Company contended that the inclusion of Mrs. Roberts was improper because she was a confidential employee. After hearings, the Board’s Regional Director issued a Decision and Direction of Election in which he concluded that Mrs. Roberts was not a confidential employee. The Regional Director’s conclusion was based on two alternative findings. First, he found that the district manager does not formulate, determine and effectuate labor relations policies. Second, the Regional Director also found that Mrs. Roberts did not assist and act in a confidential capacity to the district manager. The Company subsequently filed a request for review with the Board, challenging the Regional Director’s unit determinations. The Board denied this request based on the Regional Director’s finding that the district manager does not formulate, determine, and effectuate management labor relations policy. Given this determination, the Board did not comment on the Regional Director’s alternate finding. On August 28,1985, the Board’s regional office conducted a secret ballot election. The Company unsuccessfully challenged the ballot of Mrs. Roberts. The Board agent rejected Prudential’s challenge and refused to impound and segregate her ballot since the Board had already ruled on her eligibility. However, the agent permitted the Union’s challenge to two votes. Those two ballots were sealed and not counted in the election count. The tally, including the ballot of the assistant to the district manager, was 4-1 in favor of the Union. Prudential objected to both the conduct of the election and the conduct affecting the results of the election, but these objections were rejected by the Regional Director, who certified the Union as the bargaining unit’s representative. The Company then requested Board review of the Regional Director’s certification of the Union as representative. However, this request for review was denied by the Board on October 29,1985 as raising “no substantial issues warranting review.” In order to gain judicial review of the Board’s certification of the representative, Prudential refused to bargain with the Union. As stated, this case comes to us upon a petition to review the Board’s order requiring Prudential to bargain with the Union and its determination that the Company violated §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5), by refusing to do so. In order to evaluate Prudential’s claim that the assistant to the district manager should have been excluded from the field service bargaining unit as a confidential employee, it is necessary for us to examine the relationship between her and the district manager as well as the district manager’s responsibilities. With little exception, the facts in this case are not in dispute and the Board’s findings are essentially a summary of undisputed evidence. Accordingly, it is appropriate to reproduce the Board’s findings concerning the district manager and the assistant to the district manager. As district manager, Leary oversees the day-to-day operation of the Cape Cod district office. He is responsible for hiring and training new employees, setting their levels of compensation, determining work assignments, scheduling overtime, scheduling vacations, evaluating employees, making disciplinary recommendations, recommending promotions, merit increases and bonuses and resolving day-to-day problems that arise in the office. The collective bargaining agreement between the Employer and the Petitioner covering district agents provides that the district manager is the Employer’s representative at Step One of the contractual grievance procedure. While Leary has the authority to respond to grievances at Step One, since he has been at the Cape Cod District office (a year and a half) his practice has been to receive and investigate each grievance, formulate a recommended response and then clear it with YPRM Russo before presenting it to the Petitioner. Leary does not participate either in the preparation for, or the actual negotiations with the Petitioner concerning the district agents’ unit. The Employer’s labor relations and personnel policies, including compensation plans and levels, and benefits, are established and/or negotiated and managed from the Employer’s corporate headquarters in Newark, New Jersey and/or its regional offices, in this case located in Boston, Massachusetts. As district manager, Leary is responsible for ensuring that the Employer’s policies are administered in the Cape Cod District office consistently with the Employer’s national policy. Patricia Roberts is the ATTM in the Cape Cod District office. In this capacity, she handles correspondence and clerical work for Leary. Thus, she performs customary secretarial duties, such as typing and filing; she does not take dictation. Roberts maintains files of grievances submitted by the Petitioner and types Leary’s proposed and actual responses to them. Roberts types Leary’s correspondence with Russo and other Employer representatives and maintains a file of such correspondence in her desk, which is unlocked. Roberts also compiles and types office sales reports and submits them to the appropriate regional office. Roberts types correspondence concerning the employment, compensation, evaluation and discipline of district agents. Roberts has access, as needed, to employees’ personal job history files, which are maintained in a locked portion of Leary’s desk. She also shares a private telephone line with Leary, but she has never been asked by him to listen in on a conversation. In one instance, at Leary’s request, Roberts compiled mileage figures as part of a grievance response. However, she was asked to perform this task after the Employer had given its grievance answer to the Petitioner. In another instance, she looked up a date in an unspecified file. Section 2(3) of the NLRA provides that the “term ‘employee’ shall include any em-ployee_” 29 U.S.C. § 152(3). But, notwithstanding that under a literal reading of this language Mrs. Roberts would be an employee, both the Board and the courts exclude certain confidential employees from collective bargaining units. See NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170, 177, 102 S.Ct. 216, 222, 70 L.Ed.2d 323 (1981). In Hendricks, the Supreme Court approved the Board’s “labor-nexus” rule as determinative of whether or not a worker is to be deemed a confidential employee. Under this labor-nexus rule, “the term ‘confidential’ ... embrace[s] only those employees who assist and act in a confidential capacity to persons who exercise ‘managerial’ functions in the field of labor relations.” Hendricks, 454 U.S. at 180-81, 102 S.Ct. at 224. This concise statement of law presents the two questions involved in this case. First, whether the district manager was a person who exercised managerial functions in the field of labor relations. And, second, whether the Regional Director erred in finding that the assistant to the district manager did not assist or act in a confidential capacity to the district manager. In NLRB v. Quaker City Life Insurance Co., 319 F.2d 690 (4th Cir.1963), we held that the secretary of the district manager of a national insurance company was a confidential employee and that “[i]t would be patently unfair to require the company to bargain with a union that contain[ed] such an employee.” 319 F.2d at 694. The facts of this case are indistinguishable from those of the Quaker City case. In Quaker City, we noted that the district manager in that case “generally supervises the day to day operations of the office, operating under general rules set by the home office. He recommends the hiring, firing, and disciplining of the office employees and he may, under certain conditions, fire summarily. He trains the local employees, and, within limits set out by the company, makes recommendations as to promotions, increases and allowances.” 319 F.2d at 692. This description of Quaker City’s district manager’s duties takes in only a part of those of Prudential’s district manager here. Additionally, for example, Prudential’s district manager is the employer’s representative at Step One of the grievance procedure. He may respond to Step One or formulate and recommend a response for his superior. He is also responsible for ensuring that Prudential’s national labor and personnel policies are carried out in the district office. Accordingly, we conclude that the district manager here exercises managerial functions in the field of labor relations. The Board has invited us to reject Quaker City as lacking in precedential value in light of the Supreme Court’s ruling in Hendricks. However, this argument is foreclosed by our decision in NLRB v. Rish Equipment Co., 687 F.2d 36 (4th Cir.1982). In Rish, on facts similar to those here, we rejected the argument that our decision in Quaker City was displaced by Hendricks. 687 F.2d at 37. We follow our earlier determination, and Quaker City and Rish are yet controlling precedent in this circuit. Accordingly, we conclude that the Board erroneously decided to deny review of the Regional Director’s decision on the ground that the district manager did not exercise sufficient managerial functions in the field of labor relations. This conclusion, however, does not end our review. We must also examine the Regional Director’s alternate finding that Mrs. Roberts, the assistant to the district manager, did not assist or act in a confidential manner in her relations with the district manager. We think that the Regional Director’s finding is not supported by substantial evidence in light of the entire record. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Regional Director’s own findings concerning Mrs. Roberts, already reproduced, supra, demonstrate that her position’s confidential characteristics exceed those of the Quaker City employee “who makes weekly reports to the home office indicating receipts, disbursements, attendance of the agents and sales productions. She checks the details of each new policy before they are submitted. She types correspondence for the District Manager and is privy to all confidential matters and communications between the District Manager and the home office, including those in which the performance of the other employees of the branch office is discussed. Although she is licensed to sell insurance, she never has done so, and the license is probably not a condition of her employment.” Quaker City, 319 F.2d at 692. Moreover, there was undisputed documentary evidence that Prudential’s job description questionnaire for the position of assistant to the district manager describes the job as “confidential” by its very nature. The confidential character of the position of assistant to the district manager is further elaborated on in Prudential’s personnel policy handbook. Significantly, both the district manager and Mrs. Roberts testified that the Company had told her that her job was confidential. Finally, the Board has cited us to no convincing reason to sustain the Regional Director’s finding in light of our decisions in Quaker City and Rish. We thus find that the Regional Director’s finding that Mrs. Roberts did not assist or act in a confidential manner to the district manager is not supported by substantial evidence. Having concluded that Mrs. Roberts does serve in a confidential capacity to a manager who exercises sufficient managerial function in the field of labor relations, we are of the opinion that she should not be included within the bargaining unit in question. We must now decide what action should be taken on remand. We reject the Company’s position that a new election must be held merely because the employees’ vote may have been different had they known that the assistant to the district manager was not a member of the bargaining unit. The case cited by the Company for that proposition, Hamilton Test Systems, N. Y., Inc. v. NLRB, 743 F.2d 136 (2d Cir.1984), does not support that result. In Hamilton Test Systems, the voting employees were misinformed by the Board and believed that they were voting for representation in a broad facility-wide unit. However, the Board later considered “the ballot as a vote for representation in a unit that [was] less than half [that] size and considerably different in character.” 743 F.2d at 140. Thus, that case should be distinguished on its facts from ours because we deal here with a unit that has been altered by only one member. While we conclude that the Company is not necessarily entitled to a new election, we recognize that upon remand it will be necessary for the Board to consider the two votes challenged by the Union and not included in the tally. Given the fact that it is impossible to determine which way Mrs. Roberts’ improper vote was cast, we have no way of knowing whether a correct tally would favor the Union by a 3-1 or 4-0 margin. Accordingly, it is quite possible that the two challenged employee votes, if they survive the Union’s challenge and if they were cast against union representation, would affect the Union’s majority status. In that case, it would in fact be necessary to hold a new election in a properly constituted unit. Otherwise, the representation election result must stand. Accordingly, we reverse the Board’s finding that Mrs. Roberts was not a confidential employee and remand this case for proceedings consistent with this opinion. The petition for review of Prudential is granted in part and remanded in part. The cross petition of the Board for enforcement is denied at this time but may be reinstated depending on the result of the proceedings on remand. 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_state	24	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". Bobby HALLMAN, Appellant, v. UNITED STATES of America, Appellee. No. 73-1736. United States Court of Appeals, Eighth Circuit. Submitted Dec. 14, 1973. Decided Dec. 18, 1973. Bobby Hallman, pro se. Robert G. Renner, U. S. Atty., and Francis X. Herman, Asst. U. S. Atty., Minneapolis, Minn., for appellee. Before GIBSON and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge. The Honorable Talbot Smith, Senior Disrtict designation. Judge, Eastern District of Michigan, sitting by PER CURIAM. A jury found petitioner guilty of armed robbery of the First Plymouth National Bank, Minneapolis, Minnesota, in violation of 18 U.S.C. § 2113(a) and (d). The Honorable Earl R. Larson, United States District Judge, District of Minnesota, sentenced petitioner to 20 years imprisonment, and his conviction was upheld by this court. United States v. Hallman, 438 F.2d 94 (8th Cir. 1971). Petitioner filed this Section 2255 proceeding pursuant to 28 U.S.C. § 2255, seeking to vacate his sentence. Judge Larson denied relief without a hearing. This appeal followed. Petitioner raises three arguments: (1) his conviction should be reversed since it was based on the purportedly perjured testimony of a Government witness, Mildred A. Miller, in conspiracy with a Government informer; (2) the District Court erred in admitting a photograph of defendant showing him with a prison identification number, which denied him a fair trial and forced him to testify in violation of the Fifth Amendment; and (3) the absence of blacks on the grand and petit juries constituted systematic racial discrimination in violation of the Due Process and Equal Protection Clauses. Rejecting these arguments, we affirm the District Court’s denial of habeas corpus relief. Petitioner first claims that Mildred A. Miller, an employee of the bank and a Government witness, who identified petitioner, conspired with a Government informer, Tommy Floyd, “to frame” petitioner. Petitioner submitted a hearsay affidavit of Lolita Richardson to the District Court, which we have reviewed, stating that Miller perjured herself to revenge Floyd’s preference for Richardson’s affections. Petitioner claimed at the District Court and here that Richardson first told him on the alleged perjury while he was incarcerated pending our decision on the direct appeal, that the petitioner informed his attorney, and that his attorney informed the District Attorney of the purported perjury. The defendant does not argue that the prosecuting attorney knew of the alleged perjury at the time Miller testified. In United States v. Holt, 303 F.2d 791, 794 (8th Cir.), cert, denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132 (1962), we stated: n order to vacate the judgment and sentence on such grounds, two elements must be established: first, the use of perjured testimony, and, second, knowledge by the prosecuting officials at the time the testimony was used that it was perjured, [emphasis added] [citations omitted]. Petitioner does not claim that the Government knew of the allegedly perjured testimony at the time Miller testified. Richardson, in her affidavit, does not state that she informed anyone at the time of the trial of the purported perjury by Miller. Assuming for the sake of this argument that Miller perjured herself, petitioner has not stated that the Government knew of the perjury at the time it was allegedly committed. He, therefore, is not entitled to relief on this issue. In addition, Richardson’s affidavit should be viewed with appropriate skepticism. Richardson, fiancée of petitioner at the time of his trial, failed to come forward during trial with this information on the alleged perjury. With petitioner now found guilty, we are strained to believe the truth of Richardson’s belated, hearsay accusations concerning Miller's truthfulness. Further, we think, as did the District Court, that even if Miller’s testimony was totally discounted, there was substantial evidence from which the jury could have reached the same verdict. A bank teller, a bank bookkeeper, and a minister bank customer all identified petitioner as the bank robber. Another witness testified concerning petitioner’s possession of a large sum of money, which was proved to be the bank’s “bait” money. In this regard, Miller’s identification of petitioner was only cumulative evidence. Second, petitioner claims that the admission of a photograph of himself showing a prison identification number denied him a fair trial, forced him to testify in violation of the Fifth Amendment, and was reversible error. The photograph had been used by the FBI for purposes of identification when interviewing witnesses immediately after the robbery. At trial, petitioner’s counsel during cross-examination asked Barbara A. Scott, a bank teller, about the photograph. On redirect examination, the Government had the photograph marked, and the District Court admitted it. No comment was made during trial concerning the prison identification number. Petitioner’s counsel at trial did not object to the admission of the photograph, and this issue was not raised on direct appeal. Defendant had not taken the stand at the time of the photograph’s admission. Normally we would not review issues not timely raised on appeal. Glouser v. United States, 296 F.2d 853, 857-858 (8th Cir. 1961), cert, denied, 369 U.S. 825, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962). However, since petitioner claims that his court-appointed attorney on direct appeal informed petitioner that this issue would be raised, since the issue was not raised, and since it merits discussion, we will consider it. We think it would have been advisable for the photograph to have been admitted with the prison identification number blocked out. However, no objection was made, nor was this fact specifically called to the court’s attention. In fact, no one even commented on the identification number. However, the admission of the photograph was permissible to rehabilitate Scott’s testimony concerning the identification of the petitioner. Mullins v. United States, 487 F.2d 581, 589-590 (8th Cir., 1973). Petitioner’s claims that the admission of the photograph forced him to take the stand in violation of the Fifth Amendment and that his character was improperly put in issue do not call for vacating his sentence. First, no objection was made at trial concerning the admission of the photograph and, in particular, the presence of the prison identification number. Second, we, as the District Court, are “not persuaded that [petitioner] took the stand for the purpose of offsetting the inference to be drawn from the markings on the photograph.” Third, no comment was made at trial concerning the prison identification number. We are convinced that the petitioner was not denied the substance of a fair trial, so as to demand relief on this issue. Glouser v. United States, 296 F.2d at 856. Third, petitioner asserts that blacks were systematically excluded from the grand and petit juries in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court held on this issue: In the present case the jury was chosen pursuant to 28 U.S.C. § 1861 et seq. These Federal laws, in conjunction with the local court plan, provide for random selection of Federal jurors from the voting lists and voting cards throughout the State of Minnesota. Those chosen are anonymous to those administrators who carry out the selection process. Every four years following the national elections a new list of jurors is compiled, to keep the list current. Under this system it is not possible to say that there exists systematic exclusion of any race. On the contrary, the race of any potential juror is unknown at the time that person’s name is drawn for the master jury list. Petitioner has neither alleged nor demonstrated any statistical disparity between those minority persons qualified to be jurors and those minority persons who actually serve as jurors. This statement fully responds to petitioner’s bare assertion that blacks were systematically excluded from the grand and petit juries. Further, absent a showing of systematic exclusion of a class of qualified citizens, voter registration lists may be used as the only source of persons to serve on grand and petit juries. E. g., United States v. Parker, 428 F.2d 488, 489 (9th Cir.), cert, denied, 400 U.S. 910, 91 S.Ct. 155, 27 L.Ed.2d 150 (1970); United States v. Butera, 420 F.2d 564, 573 (1st Cir. 1970); Camp v. United States, 413 F.2d 419, 421 (5th Cir.), cert, denied, 396 U.S. 968, 90 S.Ct. 451, 24 L.Ed.2d 434 (1969); United States v. Kroncke, 321 F.Supp. 913, 914-916 (D.Minn.1970). The District Court’s explanation of the jury selection process in Minnesota dispels any question that any class of qualified citizens is systematically excluded from jury service. The District Court's denial of relief is affirmed. . Although the petitioner does not raise the issue that Richardson’s affidavit concerning Miller’s alleged perjury constitutes newly discovered evidence, we agree with the Government that such “evidence” cannot be grounds for reversal. This “evidence” would probably not produce an acquittal, and therefore a new trial should not be granted under these circumstances. United States v. McWilliams, 421 F.2d 1083, 1084-1085 (8th Cir.), cert, denied, 397 U.S. 1070, 90 S.Ct. 1515, 25 L.Ed.2d 694 (1970). 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_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". Kenneth YOUNG HEE CHOY, Appellant, v. UNITED STATES of America, Appellee. No. 18494. United States Court of Appeals Ninth Circuit. Sept. 3, 1963. Kenneth Young Hee Choy pro. per. Herman T. F. Lum, U. S. Atty., and Yoshimi Hayashi, Asst. U. S. Atty., Honolulu, Hawaii, for appellee. Before HAMLIN and DUNIWAY, Circuit Judges, and KUNZEL, District Judge. HAMLIN, Circuit Judge. This is an appeal from the denial by the United States District Court for the District of Hawaii of a motion under 28 U.S.C. § 2255 made by Kenneth Young Hee Choy, appellant herein, to set aside what was alleged to be an illegal sentence. On October 15, 1959, appellant pleaded guilty to a violation of 18 U.S.C. § 656 (embezzlement from a national bank). The amount involved was more than $100, and the maximum sentence possible was a fine of $5000 or imprisonment for five years, or both. The district judge, after a pre-sentence report, sentenced appellant to imprisonment for a period of two years, suspended execution of the sentence, and placed appellant upon probation for a period of two years, one of the conditions of probation being that he make restitution in the sum of $260. In July, 1961, a motion to revoke appellant’s probation, based upon several grounds, was filed by the chief probation officer. A hearing was held on this motion, appellant being represented by counsel. At the conclusion of the nearing, the district court revoked appellant’s probation, and sentenced appellant to the custody of the attorney general for treatment and supervision pursuant to 18 U.S.C. § 5010(b), until discharged by the Federal Youth Correction Division of the Board of Parole as provided in 18 U.S.C. § 5017(c). In December, 1962, appellant moved under section 2255 the United States District Court for the District of Hawaii to vacate the sentence, contending on the following grounds that the sentence was illegal: (1) it was in excess of the original sentence imposed by the district court; (2) the second sentence was in violation of his constitutional rights; (3) he was over the age of 22 at the time of the imposition of the second sentence; (4) he had made restitution; and (5) youth offenders do not become rehabilitated when “treated” under the Federal Youth Corrections Act. We shall consider these contentions in the order listed. The district court found that on August 1, 1961, when appellant’s probation was revoked and he was sentenced under the Federal Youth Corrections Act, he was represented by counsel and that counsel requested the court to sentence appellant under the Federal Youth Corrections Act. The court further found that it was pointed out to appellant and his counsel that the original sentence in the case was for imprisonment for a period of two years and that under the Act the sentence would be for an indefinite period, during which he might be released conditionally not more than four years after his conviction and unconditionally not more than six years after his conviction, and that “he would be taking a chance that he might be held for more than two years”; that thereafter appellant conferred with his attorney, his father and his wife, and then specifically consented to being sentenced under the Federal Youth Corrections Act. In addition, appellant and his counsel signed a consent to the order revoking probation and to his sentence under the Act.. In the light of these facts, we do not feel that appellant is in a position to complain about the possible length of his confinement under the Act. Appellant’s constitutional objections are unclear. The constitutionality of the Federal Youth Corrections Act and its sentencing provisions has been previously upheld. Although some suggestion is made by appellant in his petition that the principle of double jeopardy may be applicable to his resentencing under the Act, we have previously held such a contention to be without merit. Since appellant specifically requested to be sentenced under the Act and consented to be sentenced under the Act after the district judge had fully explained the significance of such a sentence to him and his counsel, we can see no way in which his constitutional rights have been violated. The Federal Youth Corrections Act defines a “youth offender’’ as a person under the age of 22 years at the time of his conviction. Although appellant now contends that he was 23 on the date of his conviction, the district court specifically found, based upon the records of the Department of Health of the State of Hawaii, that appellant was born on July 18, 1938, and at the time of his conviction on October 15, 1959, was 21 years of age. We agree with the government that the making of restitution as required by the conditions of probation did not in any way affect the sentence imposed upon appellant or appellant’s status as a probationer. Finally, we hold that appellant’s contentions concerning his dissatisfaction with the program at the place where he is incarcerated do not afford a basis for setting aside his sentence. We conclude that appellant’s sentence under the Federal Youth Corrections Act is not illegal. Accordingly, the order of the district court denying appellant’s motion is affirmed. . Restitution in this sum was made. . Appellant admitted all of the claimed violations of his probation, except one, which he did not deny. . At the time of the filing of the motion, appellant was confined in a federal correctional institution at Lompoc, California. . Appellant also contended that the sentence of probation imposed by the District Court of Hawaii was to run concurrently with a previous sentence of probation imposed upon him by the District Court for the Southern District of California; the latter sentence had allegedly expired at the time of revocation of his probation and so appellant argued that the District Court of Hawaii did not have authority to revoke the probation. This contention was patently without merit. The sentence of probation imposed by the District Court of Hawaii did not provide that it was to run concurrently with or consecutively to any other sentence; nor was any connection shown between that sentence and any sentence rendered by the District Court for the Southern District of California. . By reason of defendant’s consent to be sentenced pursuant to the provisions of section 5010(b), we need not consider the question of whether the defendant, bad be not consented, would be entitled to be released both conditionally and unconditionally upon the expiration of two years which was the term of the original suspended sentence. . Title 18, § 5017(c) provides: “A youth offender committed under section 5010(b) of this chapter shall be released conditionally under supervision on or before the expiration of four years from the date of his conviction and shall be discharged unconditionally on or before six years from the date of his conviction.” . See, e.g., Cunningham v. United States, 256 F.2d 467 (5th Cir. 1958); Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283 (1962). . See Cherry v. United States, 299 F.2d 325 (9th Cir. 1962). . By reason of the consent of the defendant to be sentenced under the provisions of 5010(b), the problem of the effect in failing to advise a defendant, on a plea of guilty, regarding the provisions of the Federal Youth Corrections Act, does not arise. However, we believe that where a defendant pleads guilty to an offense where the maximum penalty is less than six years and is eligible for sentencing under the Federal Youth Corrections Act, he should be advised that he could be sentenced under the Federal Youth Corrections Act and that he could not be unconditionally released prior to six years. Pilkington v. United States, 315 F.2d 204 (4th Cir. 1962). . See 18 U.S.C. § 5006(e). Section 4209 of Title 18 U.S.C. also authorizes the district courts under certain circumstances to sentence defendants who have attained the age of 22 years but who have not yet attained the age of 26 years at the time of conviction, under the Federal Youth Corrections Act. 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_respond1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". James HETHERTON and Carol Hetherton, his wife, Appellants, v. SEARS, ROEBUCK & COMPANY, a New York corporation, Appellee. No. 80-2126. United States Court of Appeals, Third Circuit. Argued Jan. 15, 1981. Decided June 25, 1981. Carl A. Agostini, Wilmington, Del., for appellants. Arnold J. Bennett (argued), Robert F. Maxwell, St. Davids, Pa., Howard Berg, Berg, Heckler & Cattie, P. A., Wilmington, Del., for appellee. Before WEIS and HIGGINBOTHAM, Circuit Judges, and McCUNE, District Judge. The Honorable Barron P. McCune, United States District Court for the Western District of Pennsylvania, sitting by designation. OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge. This case comes before us for the second time and raises questions of standing and the constitutionality of a Delaware statute requiring each purchaser of a “deadly weapon” to be identified by two freeholders. Del.Code Ann. tit. 24, § 904 (Michie 1975). In Hetherton v. Sears, Roebuck & Co., 593 F.2d 526 (3d Cir. 1979), we reversed the judgment of the district court granting Sears’ motion for summary judgment and remanded the case for consideration of the issues of proximate cause and damages. Sears, as a vendor of deadly weapons, had sold Lloyd Fullman, Jr., a rifle and ammunition in violation of § 904. Fullman used the weapon and ammunition in an attempted robbery of a Wilmington restaurant where James Hetherton was employed as a guard. During the course of the robbery, Fullman shot Hetherton in the head, severely wounding him. Hetherton sued Sears alleging that Sears was negligent for selling the weapons to Fullman without requiring that he be identified by two freeholders. Sears raised, though somewhat obliquely, the federal constitutional issue now before us in its original answer to Hetherton’s complaint. Since, in the first district court opinion of January 27, 1978, Sears received a summary judgment on the ground that there was neither statutory nor common law liability, the trial court did not reach the constitutional issues asserted in the original answer. Hetherton v. Sears, Roebuck & Co., 445 F.Supp. 294 (D.Del.1978). Similarly, when the matter was before us on the first appeal, the federal constitutional issues were not briefed or argued. On remand the constitutional question was reached. Thus, the issue now properly before us is Sears’ challenge to the constitutionality of § 904’s freeholder identification requirement on equal protection grounds. It alleged that § 904 was without rational basis because it “denied the class of people not possessing freehold estates the opportunity to participate in the enforcement of the statute and it denied the class of people who did not know any freeholders the privilege of purchasing arms.” District Court Opinion, reprinted at A-3. Hetherton responded that Sears lacked standing to challenge the constitutionality of § 904 and that, even if such a challenge were permissible by Sears, § 904 was supported by a rational basis. In an excellent opinion by Judge Latch-um, who was assigned the case after our remand, the contentions of Hetherton were rejected. We affirm Judge Latchum’s decision and agree that Sears has standing to challenge the constitutionality of § 904 and that § 904, as it existed when the underlying events occurred, violates the fourteenth amendment. I. STANDING TO CHALLENGE THE CONSTITUTIONALITY OF § 904 The jurisdiction of federal courts is limited by Article III of the United States Constitution to “eases” or “controversies.” Flast v. Cohen, 392 U.S. 83, 94, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947 (1968); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). A means of insuring valid jurisdiction is to require that parties coming to the federal courts have standing to present the claims they seek to have adjudicated. As the Supreme Court wrote in Flast v. Cohen, 392 U.S. at 99-100, 88 S.Ct. at 1952-1953 (footnotes omitted) (emphasis added): The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The “gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, [82 S.Ct. 691, 703, 7 L.Ed.2d 663] (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable. Thus, a party may have standing in a particular case, but the federal court may nevertheless decline to pass on the merits of the case because, for example, it presents a political question. A proper party is demanded so that federal courts will not be asked to decide “ill-defined controversies over constitutional issues,” United Public Works of America v. Mitchell, 330 U.S. 75, 90, [67 S.Ct. 556, 564, 91 L.Ed. 754] (1947), or a case which is of “a hypothetical or abstract character,” Aetna Life Insurance Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240, [57 S.Ct. 461, 463, 81 L.Ed. 617] (1937). So stated, the standing requirement is closely related to, although more general than, the rule that federal courts will not entertain friendly suits, Chicago & Grand Truck R. Co. v. Wellman, supra, [143 U.S. 339, 12 S.Ct. 400, 36 L.Ed. 176] or those which are feigned or collusive in nature, United States v. Johnson, 319 U.S. 302, [63 S.Ct. 1075, 87 L.Ed. 1413] (1943); Lord v. Veazie, 8 How. 251, [12 L.Ed. 1067] (1850). In Association of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829-830, 25 L.Ed.2d 184 (1970) and Barlow v. Collins, 397 U.S. 159, 163, 90 S.Ct. 832, 835, 25 L.Ed.2d 192 (1970), the Supreme Court sharpened the analysis of Fiast and Baker. It noted that parties have standing if they have suffered “ ‘injury in fact, economic or otherwise,’ to an interest ‘arguably within the zone of interest to be protected or regulated by the statute ... in question.’ ” Americans United for Separation of Church and State, Inc. v. HEW, 619 F.2d 252, 256 (3d Cir. 1980), cert. granted sub nom., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 450 U.S. 909, 101 S.Ct. 1345, 67 L.Ed.2d 332 (1981), quoting, Data Processing Service, 397 U.S. at 152-53, 90 S.Ct. at 829-830. See United States of America v. Westinghouse Electric Corp., 638 F.2d 570 (3d Cir. 1980). There is little question that Sears risks suffering injury in fact to an interest arguably within the zone of interest to be regulated by § 904. As the district court wrote: The statutory requirement which Sears is challenging here created for Sears a legal duty to require anyone purchasing a firearm from Sears to produce two freeholders who could identify the purchaser. Sears’ failure to perform this duty is presently exposing it to a very large potential liability and could lead to criminal prosecution. Thus, the statute is clearly causing Sears injury in fact and Sears had a weighty personal interest in demonstrating that the law was unconstitutional. District Court Opinion at A-3. The existence of potential civil and criminal liability when combined with the statute’s clear intention to regulate the vendors of deadly weapons assures us that Sears had presented the “concrete adverseness” envisioned by Flast and Baker. The dissent bases its objection to granting standing to Sears on “prudential” grounds. The term “prudential” is hazy in meaning and has seldom been defined with precision by the Supreme Court. Apparently it means “dimensions . . . founded in concern about the proper — and properly limited — role of the courts in a democratic society.” Warth v. Seldin, 425 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Prudential considerations however do not dictate that we deny Sears standing in this case. Typically courts will not permit a party to assert third party rights vicariously where the third party is capable of representing their own interests. This is due to a belief that the third party, whose rights have been violated, will have a clearer and more aggressive interest in seeing the rights vindicated. Here, Sears seeks to represent the interests of non-freeholders to participate in the enforcement of the Delaware statute and of persons who do not know any freeholders and want to purchase deadly weapons. We have concluded that any prudential considerations are outweighed by Sears’ vital-and immediate interests in challenging § 904. The dissent argues that the prudential basis for denying standing to Sears is made stronger by the fact that the amendment to § 904 makes the irrational distinction between freeholders and non-freeholders moot. It is true that Sears’ challenge will not benefit any Delaware citizens in the future. Nevertheless, Sears was required to operate under what we believe was an unconstitutional statute and to risk criminal and civil liability for failing to follow it. The concern expressed by the Supreme Court in Craig that a vendor not be forced to chose between perpetuating discrimination and risking liability was present here even though the statute has since been amended. Furthermore, the cases where prudential concerns have been asserted to deny standing involve situations totally separate from the present case. For example, standing has been denied in cases involving an injury too abstract or general in nature, Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 220-23, 94 S.Ct. 2925, 2932-2933, 41 L.Ed.2d 706 (1974), or cases calling for the resolution of political questions, Flast v. Cohen, 392 U.S. at 100, 88 S.Ct. at 1952. If Sears has standing under Craig as a vendor to whom an unconstitutional statute was directed, then the later amendment of that statute should not be given a retroactive effect so as to bar Sears from asserting the same constitutional arguments it could validly have made had the statute not been amended. Sears’ liability, if any, arises because of its acts on the day the sale was made and it should have the same right on the basis of jus tertii to challenge § 904 as it would have had had there been no amendment. The policies enunciated in Craig and our court’s decision in Westinghouse Electric support this conclusion. The Supreme Court in Craig permitted a beer vendor to challenge the constitutionality of an Oklahoma statute that discriminated between men and women in the purchase of 3.2% beer. The rationale for their decision was that the vendor had “vigorously and ‘cogently’ ” presented the constitutional issues and, if standing were denied, vendors would be deterred from selling the beer to members of the class, thereby perpetuating the discrimination. Craig v. Boren, 429 U.S. at 194-95, 97 S.Ct. at 455-456. The Court went on to emphasize that the statute was directed towards the vendor forcing her to either perpetuate the discrimination or risk criminal sanctions. Thus, “vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.” Id. at 195, 97 5. Ct. at 456 (citations omitted). Similarly, in Westinghouse Electric, our court permitted Westinghouse to challenge a subpoena directed towards it seeking the production of employees’ medical records. Judge Sloviter, writing for the majority, noted that Westinghouse could be subjected to a contempt sanction for failure to comply with the subpoena. Since Westinghouse was effectively in the best position to present the privacy arguments of its employees, there was no prudential basis for the denial of standing. We believe that the policies underlying the grant of standing in both Craig and Westinghouse Electric are directly applicable to Sears. The principal factor present in Craig, Westinghouse Electric and the instant case is that the party seeking to assert third party rights was subject to sanction for failure to obey either an unconstitutional statute or an impermissible subpoena. Sears is in the best position to cogently present the constitutional arguments and there is no suggestion that they have done otherwise. We, therefore, affirm the district court’s holding that Sears has standing to assert the constitutional rights of non-freeholders in the State of Delaware. II. THE CONSTITUTIONALITY OF § 904 Much has been written about the level of scrutiny a federal court should apply when reviewing a challenge to the constitutionality of a state statute or other official action. At the outset, it must be noted that this case involves neither a suspect classification nor a fundamental right. Thus, strict scrutiny is not appropriate. A strong argument could be made for the proposition that classifications based on the ownership of land are “quasi-suspect” and, therefore, receive a level of scrutiny greater than the rational basis test but less than strict. We need not decide this issue because we agree with the district court’s conclusion that under the lowest level of scrutiny § 904 does not pass constitutional muster. The essence of Sears’ argument is that the § 904 requirement of two freeholder witnesses to the sale of a deadly weapon bears no rational basis to Delaware’s legitimate interest in having purchasers positively identified and in deterring ex-felons, such as Fullman, who are not permitted to purchase firearms in Delaware, from buying guns. Hetherton counters that, since Delaware can totally ban the sale of firearms, non-freeholders are not being deprived of a right. Further, he contends the two freeholder requirement is rational in that it results in a more burdensome procedure for the purchase of weapons. Hetherton’s argument that Delaware has created no right to purchase firearms is misconceived. While it may be true that Delaware could ban the sale of all deadly weapons, it does not follow that the State, having abrogated its power to effect a total ban, can arbitrarily establish categories of persons who can or cannot buy the weapons. Clearly, Delaware could not limit the sale of firearms to men only or to members of certain religious groups. The question then is whether it is rational for Delaware to limit sales to persons who know two Delaware freeholders and can produce them as witnesses. We think that this question must be answered in the negative. The Supreme Court has consistently looked askance at classifications based on the ownership of land. In Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1969), the appellants, Black residents of Taliaferro County, Georgia, challenged, inter alia, a provision of a Georgia statute which limited school board membership to freeholders. The appellants argued that the Supreme Court’s decisions in Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) (holding unconstitutional a New York statute which limited the right to vote in school district elections to persons who owned or leased taxable real property within the district or were parents or guardians of children enrolled in the local public schools) and Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (holding unconstitutional a Louisiana statute which granted the right to vote in revenue bond elections exclusively to property taxpayers), required Georgia to meet the compelling state interest test. The Court did not decide this argument, finding instead that “the Georgia freeholder requirement must fall even when measured by the traditional test for a denial of equal protection: whether the challenged classification rests on grounds wholly irrelevant to the achievement of a valid state objective.” 396 U.S. at 362, 90 S.Ct. at 541, citing McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) and Kotch v. Board of River Pilot Commissioners, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947). The Court’s analysis of Georgia’s interest in a freeholder requirement is directly relevant to the case at hand: If we take Georgia at its word, it is difficult to conceive of any rational state interest underlying its requirement. But even absent Georgia’s own indication of the insubstantiality of its interest in preserving the freeholder requirement, it seems impossible to discern any interest the qualification can serve. It cannot be seriously urged that a citizen in all other respects qualified to sit on a school board must also own real property if he is to participate responsibly in educational decisions, without regard to whether he is a parent with children in the local schools, a lessee who effectively pays the property taxes of his lessor as part of his rent, or a state and federal taxpayer contributing to the approximately 85% of the Taliafer-ro County annual school budget derived from sources other than the board of education’s own levy on real property. Nor does the lack of ownership of realty establish a lack of attachment to the community and its educational values. However reasonable the assumption that those who own realty do possess such an attachment, Georgia may not rationally presume that that quality is necessarily wanting in all citizens of the county whose estates are less than freehold. Whatever objectives Georgia seeks to obtain by its “freeholder” requirement must be secured, in this instance at least, by means more finely tailored to achieve the desired goal. 396 U.S. at 363-64, 90 S.Ct. at 542 (footnotes omitted). It is clear to this court that Delaware’s freeholder identification requirement is as anachronistic as the one in Fouche. As the lower court observed, many very responsible citizens in Delaware do not own property. Renting has become increasingly more popular and even necessary as the cost of real estate has grown prohibitive, particularly in urban areas, for the average wage earner. For Delaware to assume that only citizens with the wealth and/or interest in owning real property are capable of participating in the regulatory functions of § 904 is simply not rational. A leaseholder is fully qualified to provide the needed identification and is capable of possessing the same “attachment to the community” as a freeholder. We therefore reject Hetherton’s contention that the “right” of non-freeholders to serve as witnesses to the character of firearms purchasers is not unconstitutionally infringed upon by § 904. We find the same irrationality present in the fact that Delaware residents who know only leaseholders would be barred by § 904 from lawfully purchasing weapons. Similarly, the argument that the freeholder requirement makes the buying of deadly weapons more burdensome does not meet the test of rationality. The state may have an interest in restricting the sale of firearms; however, it cannot do so by creating irrational and unconstitutional classifications. As noted earlier, there is no rational basis to conclude that a freeholder would take the responsibility of identifying weapons purchasers more seriously than a leaseholder. If Delaware desired to burden the sale of firearms by restricting them to persons who are non-felons or otherwise stable members of the community, it should have done so by a more narrowly tailored statute. We cannot analyze the issue with more precision than Judge Latchum did when he perceptively noted: The only two conceivable interests which the freeholder identification requirement might serve were focused upon as noted earlier by the Court of Appeals. The Court there held that the requirement served both as a means of positive identification and as a means of deterring those who are not eligible to buy firearms, such as felons, from doing so. Hetherton v. Sears, Roebuck & Co., supra at 530-531. While these two objectives are certainly legitimate, the requirement that the identification be performed exclusively by freeholders bears absolutely no rational relationship to their achievement in these modern times. There is certainly no indication that holders of real property would offer a more positive or reliable means of identification of a firearm purchaser than would non-freeholders or even the driver’s license carrying the purchaser’s photograph that was actually tendered to Sears in this case. Similarly, there is no reason to believe that freeholders would be more likely than non-freeholders to deter the sale of firearms to felons or members of those classes who are ineligible to purchase them. If the identification requirement does deter such sales to felons, it could do so in one of two ways. First, it could make it more difficult for felons to purchase firearms because people are unlikely to agree to identify either an unknown person or one they know to be a felon and thus it would be difficult for a felon to find two people who would identify him. However, there is no reason to believe that freeholders are more likely to refuse to identify a firearm purchaser who is either a stranger or felon than are non-freeholders. Secondly, the identification requirement could also make it more difficult for felons to purchase firearms because where people are asked by felons or strangers to identify them, they may refuse and then report that fact to authorities. There is absolutely no reason to believe that non-freeholders are less likely than freeholders to report to the authorities that a felon or other suspicious person is seeking to purchase a firearm. In short, the Court finds no reason to believe that non-freeholders will be less willing than freeholders to attempt to protect their communities by helping to prevent those who should not possess firearms from purchasing them. District Court Opinion at A-12-13. III. CONCLUSION We are not unmindful of the serious injury which the plaintiffs have sustained and we are aware of the prophetic warning which the late Senator Kennedy gave as to the perils of the easy accessibility to handguns, which statement was made less than one year before his life was snuffed out by a handgun: We have a responsibility to the victims of crime and violence. ... It is a responsibility to put away childish things — to make the possession and use of firearms a matter undertaken only by serious people who will use them with the restraint and maturity that their dangerous nature deserves — and demands. Firearms and Violence in American Life; Staff Report to the National Commission of the Causes and Prevention of Violence, Vol. 7 at v. As a deterrent to our nation’s escalating violence, certainly a legislature may prohibit the sale of handguns to individuals who have records such as Fullman and certainly they can impose substantial civil liability on gun sellers like Sears who breach the statutory obligations. But the legislature cannot use an unconstitutional means for even desirable and permissible goals. The “requirement must be secured by means more finely tailored to achieve the desired goal.” Turner v. Fouche, 396 U.S. at 364, 90 S.Ct. at 542. To limit the options of prospective purchasers for guns to a requirement that only people who own real estate can identify the purchasers is no more constitutionally permissible than a requirement that only Catholics or Blacks or Indians can identify purchasers of handguns. Thus, though Sears may have avoided legal liability here because of a technical deficiency in the statute, the human and moral issues raised by this case are deeply troubling and the issue of gun control is one certainly appropriate for further legislative inquiry and correction. For the foregoing reasons the June 17, 1980 opinion and order of the district court will be affirmed. . The statute does not define the term freeholder but the term is generally understood to mean one who is the owner of real property. Gebe-lein v. Nashold, Del.Ch., 406 A.2d 279 (1979); See 28 Am.Jur.2d Estates § 8 (1966). . At the time in question, § 904 required that “2 freeholders resident in the county wherein the sale is made” shall positively identify any purchaser of a deadly weapon. Fullman produced a Delaware driver’s license with his picture on it and completed a Federal Firearms Transaction Record, Form 4473, when he purchased the rifle and ammunition. He did not, however, produce two Delaware freeholders for the purpose of positively identifying him. Subsequent to the sale in this case, Delaware amended § 904 to require identification by “at least 2 residents of the State.” Del.Code Ann. tit. 24, § 904 (Michie Supp.1980). . See paragraph 15 of Sears’ answer to Hether-ton’s complaint at A-2. . Section 905 provides a criminal sanction of a fine up to $100, a prison sentence of not more than 6 months, or both for violating § 904. Del.Code Ann. tit. 24, § 905 (footnote in original). . Presumably, if the regulations were more lax, sales would increase and Sears could assert a direct interest in the statute’s unconstitutionality. However, in our earlier Hetherton opinion, we concluded that one of the purposes of § 904 was to make weapons purchases more difficult. Whether Fullman, who was Sears’ vendee in the present case, knew any Delaware freeholders is not clear from the record. This fact notwithstanding, Sears could represent potential vendees, who have been discriminated against because they knew no freeholders, as the vendor in Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) was permitted to do. . For an excellent treatment of the various constitutional standards in the fourteenth amendment area, see Judge Adams’ recent opinion in Delaware River Basin Commission v. Bucks County Water & Sewer Authority, 641 F.2d 1087 at 1091-1092, 1093 (3d Cir. 1981). . The amendment to § 904 which now requires only identification by “two residents of the State,” seems to reflect an awareness of the outmoded assumptions surrounding real property ownership. Of course, the amended § 904 is not before us and we express no view as to its constitutionality, . In a similar vein, Dr. Martin Luther King, Jr. noted: By ... our readiness to allow arms to be purchased at will and fired at whim; by allowing our movie and television screens to teach our children that the hero is one who masters the art of shooting and the technique of killing ... we have created an atmosphere in which violence and hatred have become popular pastimes. Firearms and Violence in American Life; Staff Report to the National Commission of the Causes and Prevention of Violence, Vol. 7 at v. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_const1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. TIME, INC., Defendant-Appellant, v. Frank RAGANO, Plaintiff-Appellee. No. 28490. United States Court of Appeals, Fifth Circuit. June 2, 1970. Rehearing Denied and Rehearing En Banc Denied July 14, 1970. Harold R. Medina, Jr., New York City, William S. Frates, Miami, Fla., for defendant-appellant. Sinclair, Lewis & Huttoe, Paul A. Louis, Melvin A. Rubin, Miami, Fla., Raymond E. LaPorte, Tampa, Fla., Melvin M. Belli, San Francisco, Cal., for plaintiff-appellee. Before GODBOLD, DYER and MORGAN, Circuit Judges. DYER, Circuit Judge: Time, Inc., the defendant in this libel suit, was granted leave to take this interlocutory appeal pursuant to 28 U.S.C.A. § 1292(b) from an order of the District Court denying its motion for summary judgment. We affirm and send the case back for trial. The basis of the alleged defamation is an article and accompanying picture which appeared in the “People” section of the October 7, 1966, issue of Time Magazine. The picture showed seven men seated at a table in La Stella’s Restaurant in Queens, New York. The article referred to the gathering as a meeting of thirteen “top Cosa Nostra hoodlums” and referred to three of the men shown in the picture by name, “plus ten other bigwigs.” It further referred to the occasion as a “delayed lunch” which had previously been interrupted by police because the District Attorney wanted the men “to sing before a grand jury on crime in Queens” but “a judge set bail at $100,000 each,” which was met. Actually the lunch which was pictured took place one week after the original one (which had been broken up by police) during a break in the Grand Jury proceedings, and not later on the day of the arrests as the article might be read to imply. Two of the seven men pictured were attorneys who represent one or more of the alleged “hoodlums” with whom they were sitting. No mention was made in the article of the fact that they are attorneys. One of them, Jack Wasserman, instituted suit against Time, Inc., in the United States District Court for the District of Columbia, claiming that the article and picture defamed him because of the clear implication that he was a top Cosa Nostra hoodlum. Frank Ragano instituted suit against Time, Inc., in the court below, making essentially the same claim. Preliminarily we note our agreement with the District Court that even if plaintiff is not a “public figure,” New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, which requires that “actual malice” be shown is applicable because the article which is alleged to be defamatory concerned a matter of great public interest. Bon Air Hotel, Inc. v. Time, Inc., 5 Cir. 1970, 426 F.2d 858; Wasserman v. Time, Inc., D.C.Cir. 1970, 424 F.2d 920; Time, Inc. v. McLaney, 5 Cir. 1969, 406 F.2d 565, cert. denied, 395 U.S. 922, 89 S.Ct. 1776, 23 L.Ed.2d 239. A statement is made with actual malice if made “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, swpra, 376 U.S. at 280, 84 S.Ct. at 726. As it did in the District of Columbia suit, Time, Inc., contends that even if the article is defamatory, there is nothing in the record from which it could be said that plaintiff can show malice with the convincing clarity required of him and, therefore, Time, Inc., is entitled to summary judgment. We disagree. The record, which consists of affidavits, exhibits and depositions, shows that all of the Time staff knew that Ragano was an attorney from the “bio” files Time, Inc., had on him. The first draft of the article referred to the two lawyers as “mouthpieces.” However, this indication that plaintiff was an attorney was deleted during the editorial process. Time, Inc., nevertheless contends that there was no malice on its part because Ragano participated in the second luncheon along with the others as a gesture of disdain for the law; since he participated with the others, Time was entitled to come to the good faith belief that he could “be journalistically considered a hoodlum.” In view of the principle that all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion for summary judgment, e. g., United States v. Diebold, Inc., 1962, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed. 2d 176; Gross v. Southern Ry. Co., 5 Cir. 1969, 414 F.2d 292, and in light of the fact that all the Time, Inc., employees knew that Ragano was an attorney, we think that a genuine issue of material fact exists as to whether Time’s conclusion that Ragano could journalistically be referred to as a top Cosa Nostra hoodlum was made in good faith or with malice. Therefore, summary judgment was properly denied. Fed.R.Civ.P. 56 (c). Plaintiff Ragano raises a point concerning an order quashing the taking of some depositions he wants to take before trial. However, the order Ragano complains of is not before this court. The order does not constitute an interlocutory injunction within 28 U.S.C.A. § 1292(a) because that subsection does not encompass protective orders entered under the discovery rules. International Products Corporation v. Charles A. Koons & Co., 2 Cir. 1963, 325 F.2d 403. Nor is the order before us under 28 U.S. C.A. § 1292(b). No application for interlocutory appeal of this order was made as required by that subsection, and the order of this court granting leave to take this interlocutory appeal therefore could not and did not encompass any such issue. The order denying Time, Inc.’s motion for summary judgment is affirmed, and the case is remanded for trial. We caution against attempting to glean from this decision any whisper of what the outcome should be, either on motions for directed verdict or on the final verdict. Affirmed and remanded. . The District Judge in Washington granted Time, Inc.’s motion for summary judgment. The D.O. Circuit reversed and remanded the case for trial. Wasserman v. Time, Inc., D.C.Cir. 1970, 424 F.2d 920. . The District Court opinion is published at 302 F.Supp. 1005. . Curtis Publishing Co. v. Butts, 1967, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed. 2d 1094, made the New 7orh Times rule applicable to public figures as well as to public officials. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_respond1_1_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. WHAM-O-MFG. CO., a corporation, Appellant, v. PARADISE MANUFACTURING CO., a corporation, Appellee. No. 18442. United States Court of Appeals Ninth Circuit. Jan. 31, 1964. Christie, Parker & Hale, and Robert R. Thornton, Pasadena, Cal., for appellant. William C. Babcock and G. Merle Bergman, Long Beach, Cal., for appel-lee. Before MERRILL and KOELSCH, Circuit Judges, and BOWEN, District Judge. KOELSCH, Circuit Judge. Wham-O-Mfg. Co., the owner of Carrier patent [U.S. Letters Patent #2982547, issued May 2, 1961] brought this suit against Paradise Manufacturing Co. for patent infringement and unfair competition. Both parties are corporations organized under the laws of California and have their principal places of business in that state. The district court, concluding that the patent was invalid and not infringed, dismissed the infringement claim on defendant’s motion for summary judgment; and at the same time the court acting sua sponte dismissed the claim for unfair competition. Plaintiff has appealed. Finding no reversible error, we affirm the judgment. The patent relates to an amusement device in the form of a slide. The patent claims comprise a combination consisting of a smooth strip of flexible material, such as vinyl plastic, and a sprinkler or “irrigating means” to moisten the surface of the material. The two components are integrated by attachment of the water conduit, either along a side or at an end of the strip. The contrivance is useful for a sport (?) referred to as “body planing.” Thus, when the slide is laid out and the surface wetted a player can hurl his body in a horizontal plane upon it and slide like a flat stone skipping upon a pond. The district court declared that the presumption of validity arising from the grant of the Carrier patent [35 U.S.C.A. § 282, Neff Inst. Corp. v. Cohu Electronics Inc., 298 F.2d 82 (9th Cir. 1962)] was “upset” because the patent examiner had failed to consider the latest pertinent prior art during the prosecution of the patent application. Gomez v. Granat Bros., 177 F.2d 266 (9th Cir. 1949), cert. den. 338 U.S. 937, 70 S.Ct. 351, 94 L.Ed. 578 (1950). We disagree. It appears that the Carrier patent did not list as references any patents which disclosed an irrigating means like the one comprising an element of the claimed combinations, but the defendant in support of its motion submitted as an exhibit an earlier patent to one Summers (U.S. Letters Patent #2,314,525 issued May 13, 1943). We do not understand how this omission could in any way affect the presumption. In Nordell v. International Filter Co., 119 F.2d 948 (7th Cir. 1949) and Himmel Bros. Co. v. Serrick Corp., 122 F.2d 740 (7th Cir. 1941), eases relied upon by the defendant, it appeared that the combination itself was anticipated by a single patent not listed as a reference in the patent under attack. See also A. R. Inc. v. Electro-Voice Inc., 311 F.2d 508 (7th Cir. 1952). That is not true here, for Summers at best discloses only one of the constituent parts of the patented combination. And indeed, plaintiff readily acknowledges that these parts individually are all old. It has long been settled that the separate presence in the prior art of each of the elements of a combination will not prevent the finding of invention. But the question remains whether the concept of the joinder of the parts evidences invention. In Great Atlantic and Pacific Tea Corp. v. Supermarket Equipment Corp., 340 U.S. 147, 150, 71 S.Ct. 127, 129, 95 L.Ed. 162 (1950) the Supreme Court said that: “While this Court has sustained combination patents, it has never ventured to give a precise and comprehensive definition of the test to be applied in such cases.” And numerous decisions demonstrate that the Court’s inquiries have proceeded along at least two different lines. For example, in Great Atlantic and Pacific Tea Co. v. Supermarket Equipment Corporation, supra, Hailes v. Van Wormer, supra, and Pickering v. McCullough, 104 U.S. 310, 26 L.Ed. 749, the Court looked to find whether all the component parts of the combination cooperated with one another to produce a single new and useful result and, having ascertained that each operated independently, held the claims invalid for lack of invention. However, in Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58 (1941), Altoona Publix Theatres v. Tri-Ergon Corp., 294 U.S. 477, 55 S.Ct. 455, 79 L.Ed. 1005 (1937) and Concrete Appliance Corp. v. Gomery, 269 U.S. 177, 46 S.Ct. 42, 70 L.Ed. 222 (1925), the inquiry was not so much directed to the functioning of the various elements as it was to the degree of skill evidenced by their assemblage into the new combinations; and in those cases the Court invalidated the patents on the ground that to conceive such combinations required no more than ordinary mechanical skill (35 U.S.C.A. § 103). We need not pause in the case at bar to determine whether the material and the sprinkler operate in combination to produce the requisite new unitary result. Even if we were of the opinion'— which we are not — [See Grinnell Washing Machine Co. v. E. E. Johnson Company, 247 U.S. 426, 38 S.Ct. 547, 62 L.Ed. 1196 (1918)] that they do, it is clear to us beyond any doubt that bringing them together did not evidence the “inventive genius,” often spoken of by the Supreme Court as a test for invention. See Mr, Justice Douglas, concurring in Great Atlantic & Pacific Tea Co., 340 U.S. 154, 71 S.Ct. 131, 95 L.Ed. 162. Slides, of course, are not novel and we have no hesitancy in recognizing that they were a common type of amusement device long before the date of Carrier’s patent (May 2, 1961). The fact is likewise well known that a film of water will lower the co-efficient of friction of a smooth surface — in short, that a slide can be made more slippery than it otherwise would be by adding lubricant through means of a sprinkler. We think, as did the trial court, that the combination was obvious. Particularly apt are the following extracts from Glagovsky v. Bowcraft Trimming Co., 267 F.2d 479 (1st Cir. 1959), cert. den. 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d 120 (1959), a case very much like the one before us: “The prior art and the patent claims are so simple that they can be readily understood by any normally intelligent person without the aid of expert testimony. There was, therefore, no error below in disposing of the plaintiff’s suit on the motions for summary judgment and their supporting affidavits, depositions and exhibits.” (267 F.2d p. 480). “* * * The plaintiff’s advance may well be useful and ingenious. But making full allowance for the presumption that the patent is valid and placing the burden of establishing its invalidity on the defendant, 35 U.S.C. § 282, it does not seem to us that even in the light of plaintiff’s commercial success it can be said that the plaintiff’s contribution, viewed either against the background of the allied prior arts * * * or against the background of the particular prior art * * * can be called an invention without defining that term to describe no more than the sort of advance to be expected from any ordinarily skillful mechanic conversant with any of the arts involved.” (267 F.2d p. 482). By its judgment the District Court also determined and decreed that defendant’s slide, marketed under the name “Surf N’Glide” did not infringe any claims of the Carrier patent. In view of our conclusion that the patent was invalid, we do not reach the issue of infringement. A valid patent is essential to such a claim. Bergman v. Aluminum Lock Shingle Corp., 251 F.2d 801 (9th Cir. 1958); Diversey Corp. v. Charles Pfizer & Co., 255 F.2d 60 (7th Cir. 1958). The propriety of the district court’s dismissal of the claim of unfair competition presents a more difficult question. Plaintiff had alleged in its complaint that the subject matter was within the pendent jurisdiction of the district court by virtue of 28 U.S.C.A. § 1338(b). That section provides that a district court may entertain and adjudicate “a claim of unfair competition when joined with a substantial and related claim under the * * * patent * * laws.” The district court clearly was of the view that loss of jurisdiction over the dependent claim was a necessary corollary of its ruling of patent invalidity. It opined that “The second count being for unfair competition finds no jurisdictional support in 28 U.S.C.A. 1338 (b), inasmuch as judgment goes against the plaintiff on the first count [i. e. patent infringement] and hence there is no ‘substantial and related claim’ under the patent law to support jurisdiction of the unfair competition count.” In this the court erred. The Supreme Court in Hurn v. Ours-ler, 289 U.S. 238, 243, 53 S.Ct. 586, 77 L.Ed. 1148 (1933) said: “This court [has] held that the circuit court, having acquired jurisdiction by reason of the federal questions involved, ‘had the right to decide all the questions in the case, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only.’ ” It is true that this statement was made with reference to a complaint disclosing two grounds, one federal and the other local, for recovery on a single cause of action and not to a complaint covering two distinct claims— one of which was non-federal. But Section 1338(b) was thereafter enacted. And as we noted in Stauffer v. Exley, 184 F.2d 962, 964 (9th Cir. 1950), “In construing the sections of title 28 weight should be given to the reviser’s notes which were included in the committee reports when the legislation was before Congress. See Ex parte Collett, 1949, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed.1207, 10 A.L.R.2d 921; United States v. National City Lines, 1949, 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226. The reviser’s note to § 1338 states: ‘Subsection (b) is added and is intended to avoid' “piecemeal” litigation to enforce common-law and statutory copyright, patent,, and trade-mark rights by specifically permitting such enforcement in a single civil action in the district court. While this is the rule under Federal decisions, this section would enact it as statutory authority. The problem is discussed at length in Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, and in Musher Foundation v. Alba Trading Co., 2 Cir., 1942, 127 F.2d 9, majority and dissenting opinions.’ ” Thus, in O’Brien v. Westinghouse Electric Corp., 293 F.2d 1, (3d Cir. 1961) it was recognized that the involuntary dismissal of the claim of patent infringement, at the conclusion of plaintiff’s evidence, did not oust the trial court of jurisdiction to continue with the non-federal claim of unfair competition. And in Schreyer v. Casco Products Corp., 190 F.2d 921 (2d Cir. 1951), cert. den. 342 U.S. 913, 72 S.Ct. 360, 96 L.Ed. 683 (1952), the Second Circuit held that where the federal claim of patent infringement was “substantial” and “related” to its non-federal companion claim of unfair competition so as to bring it within the purview of § 1338(b), the reversal of the judgment holding the patent valid and infringed would not deprive of jurisdictional support that part of the judgment determining the defendant liable for unfair competition. But as Judge Magruder, concurring in Strach-inan v. Palmer, 177 F.2d 427, 433 (1st Cir. 1949) aptly stated: “Federal courts should not be overeager to hold onto the determination of issues that might be more appropriately left to settlement in state court litigation merely because they have ‘jurisdiction’ to do so by virtue of a complaint making an unfounded claim of federal right. In Hurn v. Oursler, supra, there was a persuasive practical reason for the exercise of such pendent jurisdiction, for in that case the district court, in order to dispose of the federal claim of copyright infringement, was required to take the entire evidence necessary to resolve the almost parallel non-federal claim of unfair competition, and it would obviously serve everyone’s convenience for the court to adjudicate the whole case, both in its federal and non-federal aspects. But in the present case it was not necessary to go to trial to dispose of the federal claim on its merits. That claim could have been disposed of as a matter of law upon motion to dismiss. If such motion had been made, I am not prepared to say that the district court would have been in error in dismissing the whole case. * * * ” And in the case before us, although we are satisfied the district court did have jurisdiction over the non-federal subject matter, we believe that on this record the court, in the exercise of a sound discretion, had no choice but to dismiss the complaint with respect to that claim. Unlike Hurn v. Oursler, commented upon by Judge Magruder, or Telechron, Inc. v. Parissi, 197 F.2d 757 (2d Cir. 1952) where dismissal was ordered after sixteen days of trial during which plaintiff had adduced evidence covering both federal and non-federal claims and where the federal claim was still before the court, here neither the plaintiff’s energy nor the court’s time had been so occupied, the federal claim no longer existed and the claim remaining was one more appropriately belonging in a state rather than a federal court. Moynahan v. Pari-Mutuel Employees Guild of Calif., 317 F.2d 209 (9th Cir. 1963). The district court dismissed the unfair competition claim, but since the merits were not reached, the dismissal should have been of the complaint and not the claim. This will permit plaintiff, if it so desires, to litigate the competition claim in an appropriate state court. The judgment is modified to recite that plaintiff’s complaint, as to the Second Count, is dismissed without prejudice to litigate any such cause of action in an appropriate state forum. As modified, the judgment is affirmed. Costs to appellee. . The Summers patent teaches that a length of garden hose having one end closed and the other fitted with a coupling for attachment to a hydrant; holes at intervals along the hose permits discharge of water along the adjoining area. . “Where a thing patented is an entirety consisting of a single device or combination of old elements incapable of division or separate use, the respondent cannot escape the charge of infringement by alleging or proving that a part of the entire thing is found in one prior art patent or printed publication or machine and another part in another prior exhibit and still another part in a third one, and from the three, or any greater number of such exhibits, draw the conclusion that the patentee is not the original and first inventor of the patented improvement.” Bates v. Coe, 98 U.S. 31, 48, 25 L.Ed. 68 (1878). See also Hailes v. Van Wormer, 87 U.S. 353, 20 Wall. 353, 22 L.Ed. 241 (1873). . Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, p. 152, 71 S.Ct. 127, p. 129, 95 L.Ed. 162: “The conjunction or concert of known elements must contribute something ; only when the whole in some way exceeds the sum of its parts is the accumulation of old devices patentable.” Hailes v. Van Wormer, 87 U.S. 353, p. 368, 22 L.Ed. 241: “It must be conceded that a new combination, if it produces new and useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made. But the results must be a product of the combination, and not a mere aggregate of several results each the complete product of one of the combined elements. * * * Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect without the production of something novel, is not invention.” Pickering v. McCullough, 104 U.S. 310, p. 318, 26 L.Ed. 749: “In a patentable combination of old elements, all the constituents must so enter into it as that each qualifies every other; to draw an illustration from another branch of the law, they must be joint tenants of the domain of the invention, seised each of e'ery part, per my et per tout, and not mere tenants in common, with separate interests and estates. It must form either a new machine of a distinct character and function, or produce a result due to the joint and co-operating action of all the elements, and which is not the mere adding together of separate contributions. Otherwise it is only a mechanical juxtaposition, and not a vital union.” . Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, pp. 89-90, 62 S.Ct. 37, p. 39, 86 L.Ed. 58: “More must be done than to utilize the skill of the art in bringing old tools into new combinations. * * We may concede that the functions performed by Mead’s combination were new and useful. But that does not necessarily make the device patentable. Under the statute (35 U.S.C. § 31; r. s. § 4886) the device must not only be ‘new and useful,’ it must also be an ‘invention’ or ‘discovery.’ Thompson v. Boisselier, 114 U.S. 1, 11 [5 S.Ct. 1042, 1047, 29 L.Ed. 76], Since Hotchkiss v. Greenwood, 11 How. 248, 267, 13 L.Ed. 683, decided in 1851, it has been recognized that if an improvement is to obtain the privileged position of a patent more ingenuity must be involved than the work of a mechanic skilled in the art.” Altoona Publix Theatres v. Tri-Ergon Corp., 294 U.S. 477, p. 486, 55 S.Ct. 455, p. 458, 79 L.Ed. 1005: “An improvement to an apparatus or method, to be patentable, must be the result of invention, and not the mere exercise of the skill of the calling or an advance plainly indicated by the prior art. Electrie Cable Joint Co. v. Brooklyn Edison Co., 292 U.S. 69, 79, 80 [54 S.Ct. 586, 78 L.Ed. 1131]. The inclusion of a flywheel in any form of mechanism to secure uniformity of its motion has so long been standard procedure in the field of mechanics and machine design that the use of it in the manner claimed by the present patent involved no more than the skill of the calling.” Concrete Appliances Corp. v. Gomery, 269 U.S. 177, p. 185, 46 S.Ct. 42, p. 45, 70 L.Ed. 222: “This progressive adaptation, much of which preceded and some of which was contemporaneous with the Callahan adaptation, of well known devices to new but similar uses ‘is but the display of the expected skill of the calling, and involves only the exercise of the ordinary faculties of reasoning upon the materials supplied by a special knowledge, and the facility of manipulation which results from its habitual and intelligent practice.’ Hollister v. Benedict Manufacturing Co., supra, 113 U.S. 59, at page 73, 5 S.Ct. 717 at page 724, 28 L.Ed. 901. No novel elements were used by Callahan in his device. We are unable to find that their use in combination in it was more than the application to them of mechanical skill in the course of a natural development and expansion of the art.” . Defendant readily acknowledges that the claim of patent infringement was “substantial” but suggests it was not “re: lated” to the competition claim, as is also required by § 1338(b); the suggestion is made that such deficiency afforded the basis for the trial court’s dismissal. The term “related” refers to probative facts; it means that part of the proof in support of one claim be common to the other. The amount of the proof required varies among the several circuits, this circuit being among those that has adopted a liberal construction in order to facilitate joinder. Pursche v. Atlas Scraper Engineering Co., 300 F.2d 467 (9th Cir. 1962) cert. den. 371 U.S. 911, 83 S.Ct. 251, 9 L.Ed.2d 170, rehearing denied, 371 U.S. 959, 83 S.Ct. 499, 9 L.Ed.2d 507. In this case, the summary judgment motion was not directed against the competition claim, and the materials before the district court were not concerned with it; consequently the nature of that claim and the proof' was not asserted. There, the claim was-not enlightening, since the claims against it were very general. On this record it would require speculation to conclude-that the claim was not “related.” . We accept this statement as setting out the test of substantiality: “Presumably § 1338(b) means nothing more than the claim under the patent law must satisfy the test of substantiality generally exacted when a jurisdictional challenge is asserted in a federal court. In such instances the question is whether the claim jurisdietionally assailed is ‘obviously without merit’ or its unsoundness ‘ “clearly results from previous decisions” ’ of the Supreme Court. Levering & Garrigues Co. v. Morrin, 1933, 289 U.S. 103, 105, 53 S.Ct. 549, 550, 77 L.Ed. 1062. Jurisdiction to adjudicate is wanting only where the federal claims stated in the complaint are so unsubstantial as ‘to be frivolous or * * * plainly without color of merit.’ Binderup v. Pathe Exchange, 1923, 263 U.S. 291, 306, 44 S.Ct. 96, 98, 68 L.Ed. 308. If it appears that a plaintiff is ‘not really relying upon the patent law for his alleged rights’ then the claim does ‘not really and substantially involve a controversy within the jurisdiction of the court’; otherwise jurisdiction exists regardless of whether the claim ultimately be held good or bad. The Pair v. Kohler Die & Specialty Co., 1913, 228 U.S. 22, [24], 25, 33 S.Ct. 410, 411, 57 L.Ed. 716.” O’Brien v. Westinghouse Electric Corp., 293 F.2d 1, at 11 (1961) quoting with approval American Securit Co. v. Shatterproof Glass Corp., D.C.D.Del.1958, 166 F.Supp. 813, affirmed 3 Cir. 1959, 268 F.2d 769. . This view was subsequently approved as the rule of the first circuit in Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497 (1st Cir. 1950). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_jurisdiction	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer". Percy P. DAVIS, Appellant, v. GUY F. ATKINSON COMPANY, a Corporation, and J. A. Jones Construction Company, a corporation, Appellees. No. 14262. United States Court of Appeals Ninth Circuit. May 31, 1955. G. H. Van Harvey, San Francisco, Cal., for appellant. Lloyd H. Burke, U. S. Atty., George A. Blackstone, Asst. U. S. Atty., San Francisco, Cal., for appellees. Before DENMAN, Chief Judge, and ORR and FEE, Circuit Judges. DENMAN, Chief Judge. Davis appeals from a summary judgment of the district court dismissing his action on his complaint seeking damages for three alleged false representations made by appellees’ agents in connection with his employment by appellees to serve as a dentist for their employees in Okinawa. Two of the occasions of the alleged misrepresentations are claimed to have been made in New York and one in California. The New York Misrepresented tions. One is that Davis, a dentist with a New York practice and a member of and employed by the Board of Health of New York, was induced to give up his practice and city employment and leave New York with his wife and travel to California and ship his dental machines and appliances there under a promise in an advertisement made by an appellees’ employee in a New York newspaper that he would have a year’s employment by appellees as a dentist in Okinawa and that his transportation to and from Okinawa would be paid by appellees. This was followed by a second representation in New York by an employee of the corporations that Davis would be employed by them in Okinawa for a year, and that if he went to California the appellees there were ready to make such a year’s contract with him. Assuming this misrepresentation is an actionable tort for which Davis could recover damages for loss of business, transportation costs, etc., it appears that when he came to California the corporations refused to make such a contract with him. Then, instead of suing on the misrepresentations, he entered into a contract for his services in Okinawa for only as long as his employers desired it, a part of the consideration for that contract being his agreement to the effect that there had been no such misrepresentation. This appears in the disclaimer clause, section 22, of the California contract, providing: “The Employee certifies to the contractor that he has read the foregoing agreement and that he fully understands its terms and conditions and further certifies that the foregoing terms and conditions constitute his entire agreement with the employer, and that no promises or understandings have been made other than those stated above;” We think that in view of the provisions of this clause Davis has no right to recover on the statements in New York relative to his year’s employment. The second claimed misrepresentation in New York is a statement to Davis by a Mr. Gardner, an agent of the appellees, with whom the newspaper advertisement advised him to consult. Davis stated to Mr. Gardner, it appears from the answer to Interrogatory 4, “that my wife and I could not accept the positions purely on a salary basis unless I would be allowed to engage in private practice. Mr. Gardner stated that no private fees could be permitted because of government regulations which forbade the use of government property for private purposes. I then suggested that I be allowed to use certain equipment of my own for such purpose. Mr. Gardner, who had been in contact with the Sausalito office of Atkinson-Jones, said that he could conceive of no objection on the part of the management to such arrangement, and that further details would be worked out with the office in Sausalito.” We think that Mr. Gardner’s statement of his conception as to his principals’ views on the right of Davis to engage in private practice is not tortious conduct on which Davis could rely for a recovery of damages. The California Misrepresentations. Before executing the above contract for his employment in Okinawa, Davis had a discussion with several persons, one of them being a Mr. Doyle, an employee of the corporations, which he describes as follows: “I told Mr. Doyle, as I had previously told Mr. Gardner, that my wife and I could not accept the employment purely on a salary basis unless I would be allowed to engage in private practice. I also told Mr. Doyle that I would use my own equipment in my private practice. Mr. Doyle stated that the employees of his company were entitled to dental work of an emergency nature only, and that if they wanted other dental work done they would have to pay for such work. He told me that any work that I might do for any employee of his company, other than work of an emergency nature, would be between the patient and me, and that the patient would have to pay for such work. Mr. Doyle described the difficulties which had arisen between the previous dentist and management on Okinawa, wherein men who were treated were dissatisfied and unhappy with the type and standard of dental services rendered them. I assured Mr. Doyle that I guaranteed all my dental work unconditionally on the basis of ‘100% satisfaction or entire fee refunded.’ I also told Mr. Doyle that we had the necessary dental equipment and supplies ready for complete dental service and I requested permission for an extra weight allowance in shipping the equipment to Okinawa. He gave his approval for the extra weight shipment. “I asked Mr. Doyle for a definite contract setting forth the provisions with regard to private work, but he told me that it would not be possible to sign such special contract because only a general contract was available for all employees. He stressed the fact before Mr. Fassett and Mr. Keenan that the contract with the employees called only for emergency dental work and that any work that we might do, other than work of an emergency nature, would be between the patient and myself.” Davis contends that these representations of the corporations’ employee Doyle caused him to enter into the contract in which it was stated that his employment was terminable at the will of the appel-lees and in which he was not given the right to his private practice. With regard to the right to private practice, there was a specific provision, 15(c), that his professional conduct in Okinawa was controlled by the law and governmental regulations which prohibited his private practice. The contract also contained Section 22, the disclaimer clause above quoted. The question whether he can claim damages for so being induced by the corporations’ employee Doyle to execute the contract with its disclaimer clause is one of California law. In California the provision of the clause “that no promises or understandings have been made other than those stated above” precludes any recovery from the innocent principal for prior false statements of his agent. The controlling decision is Harnisch-feger Sales Corp. v. Coats, 4 Cal.2d 319, 48 P.2d 662, 663, where the contract was for the purchase of a power shovel arid the trial court awarded the purchaser damages from the selling corporation for fraudulent misrepresentations of its agent. On reversing the court held that the following provision in the contract: “ ‘This agreement shall not be considered as executed, and shall not become effective until accepted by the vendee, and executed and approved by the president, or vice-president, or secretary of the vendor, and it is hereby further declared, agreed and understood that there are no prior writings, verbal negotiations, understandings, representations or agreements between the parties, not herein expressed.’ ” precluded a recovery from the principal, the court further holding that the defrauded party could rescind the contract. On this issue the Harnischfeger case relied on dicta in Gridley v. Tilson, 202 Cal. 748, at page 751, 262 P. 322, and Speck v. Wylie, 1 Cal.2d 625, at page 627, 36 P.2d 618, 95 A.L.R. 760. All three of these cases recognize the right of the party deceived by the misrepresentations to have the contract rescinded, a remedy not here sought by Davis. The appellees contend that the amended complaint fails to state a non-California citizenship required to create a diversity jurisdiction, appellant relying on a mere statement of residence in New York. Appellant offers to amend to show diversity, as we have the power to do under 28 U.S.C. § 1653. Assuming that we allowed the amendment and that diversity were established, we nevertheless affirm the judgment of dismissal since appellant has no cause of action. See Brooks v. Yawkey, 1 Cir., 200 F.2d 663. The judgment is affirmed. Question: Did the court determine that it had jurisdiction to hear this case? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_exhaust	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it would not hear the appeal for one of the following reasons: a) administrative remedies had not been exhausted; or b) the issue was not ripe for judicial action?" 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". ONG v. HUNTER, Warden. No. 4430. United States Court of Appeals Tenth Circuit. April 16, 1952. Rehearing Denied May 12, 1952. Leo W. Kennedy, Denver, Colo., for appellant. Lester Luther, U. S, Atty., and V. J. Bowersock, Asst. U. ’ S. Atty., Topeka, Kan., for appellee. Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges. PER CURIAM. So far as material appellant, Zeddie Ong, was sentenced on December 17, 1936, by the United States District Court of West Virginia to serve a sentence of five years on each of counts one, two and three of an indictment, the' sentences being made to run consecutively to each other. Thereafter on August 11, 1939, he was sentenced in the United States District Court for the District of Kansas on count one of an indictment to serve a sentence of three years. The language of the sentence in question read as follows: “Said sentence to begin at the expiration of the sentence the defendant is now serving in the United States Penitentiary and run consecutively thereto.” The prison authorities construed the sentence to mean that it was to begin at the conclusion of the fifteen year sentence imposed by the West Virginia Court and accordingly charged appellant with a total servitude of eighteen years. Appellant in his application for a writ o.f habeas corpus takes the position that the three year Kansas sentence ran concurrently with the West Virginia five year sentence on count two and that the total sentence chargeable to him should therefore be only fifteen years. He chooses to treat the sentence of the West Virginia Court as -three separate sentences of five years each and from that argues that since he was serving the sentence imposed on count one at the time that -he was sentenced by the Kansas Court, the Kansas Court by the use of -the singular of the word “sentence,” in imposing its three years consecutive sentence on count one, must have intended that sentence to begin when -he had completed his sentence on count one of the West Virginia sentence. Such construction would cause the Kansas sentence to run concurrently with the sentence imposed on count two by the West Virginia Court and would make, as contended by him, the total amount of his servitude fifteen years. With such a construction we cannot agree. We think it is clear that the Kansas Court intended appellant to serve three years additional time in addition to the time he was serving under sentence from the West Virginia Court. We do not think the Kansas Court had in mind such refinement of reasoning as appellant argues for. -It is, of course,' essential that criminal sentences be reasonably certain, definite and free from ambiguity. Smith v. United States, 10 Cir., 177 F.2d 434. But the elimination of every conceivable doubt is not requisite to their validity or enforcement. Ziebart v. Hunter, 10 Cir., 177 F.2d 847. It is not required that every possibility which may be conjured up by an active mind be eliminated. We find no uncertainty in the meaning of the sentence in question and agree with the trial court that the sentencing court intended the three year sentence to be served in addition to the fifteen years, which appellant was required to serve under the West .Virginia Court sentence. Affirmed. . The judgment in this case also imposed sentences on other counts which are, however, not material to this appeal. . Emphasis supplied. Question: Did the court determine that it would not hear the appeal for one of the following reasons: a) administrative remedies had not been exhausted; or b) the issue was not ripe for judicial action? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party MISSISSIPPI GLASS CO. v. POLAND. No. 12377. Circuit Court of Appeals, Eighth Circuit. March 15, 1943. Rehearing Denied March 29, 1943. S. Mayner Wallace, of St. Louis, Mo. (T. M. Pierce, A. M. Menzi, and' Ralph B. Graham, Jr., all of St. Louis, Mo., on the brief), for appellant. Clifford Greve and Thomas L. Croft, both of St. Louis, Mo. (Richmond C. Coburn, of St. Louis, Mo., on the brief), for appellee. Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges. JOHNSEN, Circuit Judge. ■ The primary question involved is whether, under the law of Missouri, a notice served upon a month-to-month tenant to quit the premises by December 1, 1939, was revoked as a matter of law, by a communication from the landlord-on December 15, 1939, that, “we will extend the period of your tenancy only until the end of this month, and * * * will take possession of- the building on the morning of January 3rd, 1940”, and by the acpeptance thereafter of the December rent. At the time the notice was served, the tenant was in no way in default, but the landlord desired thé property for its own business purposes. The trial court took the view that the notice to quit had been revoked as a matter of law. The landlord contends on this appeal that the legal effect of its actions- was merely to extend the quitting date and not to nullify or revoke the notice. The rule which the trial judge applied is that of the weight of authority. See 4 Thompson on Real Property, Permanent Edition, 148, § 1639; 32 Am.Jur. 843, § 1004; 120 A.L.R. 562, annotation. It has indicative sanction in Nagel v. League, 70 Mo.App. 487, and some analogous recognition in Garnhart v. Finney, 40 Mo. 449, 93 Am.Dec. 303; Eurengy v. Equitable Realty Corporation, 341 Mo. 341, 107 S.W.2d 68; and Frank v. Dodd, Mo.App., 130 S.W.2d 210. It is true that the Missouri courts have held that, where rent for continued occupancy is accepted after the institution of a suit for unlawful detainer, the question whether the notice to quit has been waived is generally one of fact for a jury. Lebow v. Hudson, Mo.App., 226 S.W. 968. But this is because of the legal force accorded the institution of the suit itself as evidence of the landlord’s intention, as the authorities cited in support of that decision demonstrate and as Ewing v. O’Malley, 108 Mo.App. 117, 82 S.W. 1087, similarly emphasizes. No Missouri decision has been cited to us, and we have found none, that convinces us that the trial court erred in construing the Missouri law to be that, where no suit to recover possession has been instituted, any definite recognition of continued rightful occupancy in the tenant and the acceptance of rent therefor, after the effective date of a notice to quit, as, in the present case, by the landlord’s written extension of “the period of your tenancy” for another month, and the acceptance of rent for the period, nullifies the notice to quit and constitutes a revocation of it as a matter of law, unless the parties can be competently shown to have mutually and clearly agreed that the notice should be extended and continued effective. The landlord can not unilaterally extend and continue the application of the notice, where he has otherwise legally precluded himself from enforcing it. The Missouri Supreme Court has declared that a notice to quit must be absolute. Ayres v. Draper, 11 Mo. 548. It must equally remain so and be currently capable of enforcement by legal action at all times after its fixed effective date, unless the parties mutually have unequivocally extended its application. It will be noted that the landlord’s communication in the present case did not even refer to the notice, but merely made a specific extension of the tenancy and stated that possession would be taken of the property “on the morning of January 3rd, 1940”. The extension was not “signed by the parties thereto, or their agents”, and hence, under section 2971, Mo.R.S.A., the granting of the additional month’s occupancy was merely legally equivalent to the creation of another month to month tenancy, which itself required one month’s notice in writing before the tenant’s possession could be claimed to be unlawful. The declaration in the letter of December 15, 1939, of an intention to take possession of the property on January 3, 1940, was not such a one month’s notice. Appellant argues that, under section 2970, Mo.R.S.A., which provides that, where a tenancy has once been terminated by proper notice, “in any suit thereafter between said parties, oral testimony shall not be admissible to vary, alter or abrogate, the effect of the notice required and given * * * but such notice may be varied, altered or abrogated only by written evidence thereof and bearing an actual date subsequent to the date of the notice * * * ”, the circumstances discussed above could not themselves be recognized as competent evidence of a revocation of the notice. But the landlord’s letter of December 15, 1939, extending the tenancy, and the tenant’s check, admittedly accepted in payment of the December rent, would clearly constitute competent written evidence, within the intendment of this statute, to establish a revocation or abrogation of the notice by operation of law for any purpose. For informational purposes, it may be added that the action here involved was one to recover rent on the regular basis, for the period from January to August, 1940, when the tenant finally vacated the property — the landlord during that period having refused to accept the tenant’s monthly tendered checks; to recover also double rent for the alleged wrongful occupancy on the basis of the specific terms of the previous tenancy; to recover, in addition, special damages which it was claimed the landlord sustained in the way of extra expense by reason of not being able to obtain possession of the property for its own business purposes; and finally to recover exemplary damages on the ground that the tenant’s actions had been wilful and wanton. The trial court instructed the jury to return a verdict for the amount only of the regular rent accruing during the period involved. Whether the landlord would legally have been entitled to recover double rent, special damages and exemplary damages, or some of them, if the tenant’s possession had been wrongful, there is no occasion for us to consider. The tenant’s possession here was not wrongful, since the notice to quit had been revoked as a matter of law. The judgment of the trial court is affirmed. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_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. LYBRAND et al. v. ALLEN. Circuit Court of Appeals, Fourth Circuit. January 10, 1928. No. 2656. 1. Mortgages @=137 — Conveyance subject to purchase-money mortgage conveys merely equity of redemption. When land is conveyed, and a mortgage executed to secure the purchase price, the practical effect of the transaction is to convey merely the equity of redemption. 2. Bankruptcy @=188(9)1 — Mortgage and note executed by bankrupt for land conveyed by his father in carrying out plan of securing father’s creditors, held valid as respects bankrupt and his trustee. Where bankrupt’s father, being in financial difficulties- and owning considerable realty, adopted the plan of conveying separate parcels of land to bankrupt at an agreed price and taking notes and mortgages therefor, which he hypothecated with his various creditors as security for existing and future indebtedness, held that, in the absence of fraud or bad faith, a note and mortgage so executed by bankrupt was valid, and neither bankrupt nor "his trustee could retain the property and at the same time repudiate mortgage. 3. Bankruptcy @=217(1) — Burden was on mortgagor’s bankruptcy trustee to show mortgage was paid or released. Burden Wa¡s- on mortgagors bankruptcy trustee, suing to enjoin mortgage foreclosure action in stale court, to show that mortgage had been paid or released. 4. Bankruptcy @=217(1) — Evidence held not to sustain burden on mortgagor’s bankruptcy trustee of proving that mortgage had been paid or released. In bankruptcy trustee’s suit to enjoin mortgage foreclosure action in state court, brought by subsequent holder of mortgage, evidence held not to sustain burden on trustee of showing that mortgage executed by bankrupt had been paid or released. 5. Executors and administrators <§=>59 — Presumption is that administrators of transferee . of mortgage and secured notes, .in possession thereof, are owners of instruments. Administrators of transferee of mortgage land note secured thereby, who had possession of such instruments, are presumed to be owners thereof, entitled to proceed with mortgage foreclosure action in state court. 6. Mortgages <§=>239 — Mortgagor’s bankruptcy trustee could not question validity of transfer of mortgage and notes from subsequent holder to bankrupt’s brother, where transfer was made as result of payments by mortgage. Even if note and mortgage securing it, given by bankrupt to his father to secure payment of price of realty conveyed by father, were transferred to bankrupt’s brother by father’s creditor, with whom mortgage had been hypothecated to secure indebtedness of father, as result of payments by father, so that father’s estate was entitled to the 'transfer of such instruments, bankrupt’s trustee could not question validity of such transfer, since neither he nor his estate were entitled thereto, but validity thereof could only be questioned by father’s bankruptcy trustee, or his executors or creditors. Appeal from the District Court of the United States for the Eastern District of South Carolina, at Aiken; Ernest E. Cochran, Judge. Suit by Ernest L. Allen, trustee in bankruptcy of J. C. Lybrand and another, against J. C. Lybrand and others. Decree for plaintiff, and defendants appeal. Reversed. William M. Smoak, of Aiken, S. C., for appellants. D. W. Robinson, of Columbia, S. C. (Herbert E. Gyles, of Aiken, S. C., on the brief), for appellee. ' Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges. PARKER, Circuit Judge. This suit was instituted by the trustee in bankruptcy of J. C. Lybrand to enjoin the prosecution in a court of the state of South Carolina of a suit brought to foreclose a mortgage on a tract of land title to which was held by the bankrupt at the time of his adjudication. After it was instituted, the trustee filed a petition in the bankruptcy proceeding, asking that he be allowed to sell the land in controversy free of liens, and the proceeding thus instituted was consolidated with the suit for injunction. A final decree was entered in the consolidated causes, which granted the injunction, directed that the mortgage be canceled, and ordered that the land be sold by the trustee free of liens. The correctness of this decree is the matter challenged by the appeal before us. The foreclosure suit, the prosecution of which was enjoined, was instituted by J. C. Lybrand’s brother, C. R. Lybrand, who claimed to be the owner and holder of a note for $30,000 secured by mortgage on the tract of land in controversy. This note and mortgage were executed by the bankrupt, J. C.Lybrand, to his father, J. W. Lybrand, and were by J. W. Lybrand indorsed and transferred to Barrett & Co., cotton dealers of Augusta, Ga., as security for existing and future indebtedness. Some time thereafter J. W. Lybrand was adjudged bankrupt, and after the bankruptcy the note and mortgage were transferred by Barrett & Co. to C. R. Lybrand. J. W. Lybrand died prior to the institution of the injunction suit, and his executors were made defendants with C. R. Lybrand and J. C. Lybrand. C. R. Lybrand died before the hearing in the court below, and his administrators were made parties in his stead. A rule to show cause, based upon the petition to sell the land free of liens, was served upon the trustee in bankruptcy of J. W. Lybrand, who was thus made a party also to that proceeding. The bill of complaint in the suit for injunction alleged that the mortgage sought to be foreclosed was executed as a matter of form between J. C. and J. W. Lybrand, and was not given for a valuable consideration; that C. R. Lybrand was not in fact the owner of the note and mortgage; and that the suit for foreclosure was collusive and fraudulent, and had been instituted for the purpose of depriving the creditors of J. C. Lybrand of the benefit of the mortgaged property. A joint answer was filed by C. R. Lybrand, J. C. Lybrand, and the executors of J. W. Lybrand. It denied that the mortgage was executed without consideration or as a matter of form, or that there was fraud or collusion in its execution, or in the institution of the suit for foreclosure. It alleged that the note and mortgage were given for the purchase price of the tract of land; that J. W. Lybrand had hypothecated them with Barrett & Co. .more than four months prior to his bankruptcy; and that they had been assigned by Barrett & Go. to C. R. Lybrand, who had paid for them out of his own means and assets. It further alleged that J. C. Lybrand had paid nothing on the note, and that prior to his bankruptcy he was in default under the mortgage, and that C. R. Lybrand had entered into possession of the mortgaged premises and was entitled to the foreclosure. The trustee in bankruptcy of J. W. Lybrand made no return to the notice to show cause, and asserted no claim to the note or mortgaged premises. Much evidence was taken before a master, who reported it to the court without passing upon the facts. From this evidence it appears that J. W. Lybrand, the father of J. C. and C. E. Lybrand, had for many years prior to 1921 been engaged in business at Wagener, S. C. Early in 1921 he became financially embarrassed and was endeavoring to satisfy bis creditors, so that he might continue in business. He owned considerable real estate in and near Wagener, and be adopted the plan of conveying this in separate parcels to his son, J. C. Lybrand, at an agreed price, and taking from J. C. Lybrand notes for the purchase price secured by mortgages on the land conveyed, which he hypothecated with his various creditors as security for existing and future indebtedness. Pursuant to this plan J. W. Lybrand, on February 4, 1921, conveyed to J. C. Lybrand the tract of land in controversy, at the price of $30,000, taking from him a note and purchase-money mortgage for that amount, which he hypothecated with Barrett & Co., to whom he owed a large sum of money. Other notes of J. C. Lybrand, secured by mortgages on other tracts of land, which had been thus conveyed to him, were hypothecated by J. W. Lybrand with banks, fertilizer companies, and others of his creditors. All of these deeds and purchase-money mortgages were duly placed on record, and there is no evidence that in any of the transactions there was any fraud or concealment, or any advantage taken of any of the creditors of either party. On the contrary, the plan seems to have been conceived and carried through in perfect good faith and to have resulted in dividing up the security of J. W. Lybrand’s real estate among his principal creditors, and in giving them, in addition thereto, the personal obligation of J. C. Lybrand. Ho question arises or could arise as to the pledge of the notes and mortgages constituting voidable preferences under the Bankruptcy Act, as they were pledged more than a year prior to J. W. Lybrand’s bankruptcy. J. W. Lybrand was adjudged bankrupt early in 1922. At that time he owed Barrett & Co. a balance of approximately $140,000, and that firm still held the note and mortgage of J. C. Lybrand as collateral security thereto; but these were not much security for so large a debt, as real estate had declined in value, and the tract of land embraced in the mortgage was estimated to be worth only around $5,000. Barrett & Co. continued to hold the note and mortgage, however, until the latter part of that year, when they transferred them to C. E. Lybrand, along with certain accounts and chattel mortgages belonging to the J. W. Lybrand estate, which they had purchased at a sale for J. W. Lybrand and at his request. J. W. Lybrand was unable to pay for these accounts and mortgages, and they were transferred to C. E. Lybrand and charged to and paid for by him. There is no doubt, upon the evidence, that the note and mortgage came into the possession of C. E. Lybrand. There is some dispute as to how Barrett & Co. came to part with. them. A member of that firm testified that, after the bankruptcy of J. W. Lybrand, Barrett & Co., to save themselves the loss of the $140,000 balance due by him on account, bought cotton futures for him, which they carried in a secret account for his benefit; that the profit from these transactions extinguished the balance duo on the old account; and that, when this was done, the note and mortgage held as collateral were surrendered. His testimony as to how and when they were surrendered is rather vague. Opposed to this is the positive testimony of a number of witnesses to the effect that they were transferred to C. E. Lybrand, and that the transfer occurred when the chattel mortgages and accounts which were purchased by Barrett & Co. and ultimately charged to C. E. Lybrand were turned over to him. We think that the correctness of this version of the matter is established by the clear weight of the evidence, although it may be true, also, that the willingness of Barrett & Co. to transfer the note and mortgage with the other papers was due to the fact that their losses had been recouped from the profits realized from the secret account, as to which testimony was given. How the papers came to be transferred to C. E. Lybrand is, we think, unimportant. The important thing is that they were transferred to him, and as to this we think that upon the evidence there can be no doubt. The trustee contends that the account of C. R. Lybrand with Barrett & Co. was in reality the account of J. W. Lybrand, and that the payments appearing to be made by C. E. Lybrand were in fact made by his father; but we do not think that the evidence sustains this contention. After J. W. Lybrand filed his petition in bankruptcy, C. E. Lybrand borrowed money on a life insurance policy, and with this and with what credit he could muster at the local bank entered into business. Doubtless the fact that he was the son of J. W. Lybrand helped him to establish connections and to pick np business which his father had formerly handled, and among other connections established was one with Barrett & Co. This connection enabled him to do an extensive business in cotton, as he could ship the cotton when purchased and draw against Barrett & Co. for the price, and in this way do a large business on little money. All of this cotton he sold to Barrett & Co. in his own name, depositing the collections from the sales to his own credit in the local bank. His father may have aided and assisted him in carrying on this business, and it appears, also, that Barrett & Co. charged against his account certain obligations of his father; but it is clear that the business was carried on by C. E. Lybrand in his own name and on his own credit, and we think the evidence is conclusive that it was his business and not the business of his father. The fact that he paid to Barrett & Co. obligations of his father is, we think, not necessarily inconsistent with his ownership of the business, but, on the other hand, furnishes a satisfactory reason why collateral pledged by his father to Barrett & Co. should have beeri delivered to him. The trustee in bankruptcy, representing creditors of J. W. Lybrand, has made no claim to the note and mortgage in controversy. The executors of J. W. Lybrand do not claim them, but, as heretofore stated, have filed' answer alleging that they belong to the estate of C. E. Lybrand. There is no evidence that J. C. Lybrand ever paid anything on them, or that they have ever been canceled or extinguished. Upon these facts, the first question which arises is as to the initial validity of the note and mortgage, and, as to this, we can see no reason why they are not valid. The execution of the note and mortgage by J. C. Lybrand was the consideration for .which the land in controversy was deeded to him; and certainly neither he nor his trustee in bankruptey, who merely succeeds to his rights, can hold onto the property and at the same time repudiate the mortgage. 21 C. J. 1210; 41 C. J. 443; New Hampshire Land Co. v. Tilton (C. C.) 19 F. 73. It was not intended that J. C. Lybrand should take anything by the conveyance to him, except the land subject to the mortgage, or the equity of redemption therein; and the rule applicable in such eases is that, when land is conveyed, and a mortgage thereon executed to secure the purchase money, the practical effect of the transaction is to convey merely the equity of redemption. 41 C. J. 458; In re Hays (C. C. A. 6th) 181 F. 674. To hold in this ease that the note and mortgage are void would be to hold that the conveyance to J. C. Lybrand vested in him an unincumbered title to the land, when it is clear that all that it was intended that he should get was an equity of redemption subject to the mortgage. The mortgage cannot be held void on the ground that its execution was a fraud on the creditors of J. C. Lybrand; for it embraced nothing except the property deeded to him in consideration of its execution, and by no stretch of the imagination could the mortgaging of this property be said to injure his creditors. The next and crucial question in the case is whether the mortgage has been satisfied or not, and as to this we think there can be but one answer. There is no evidence whatever that J. C. Lybrand ever paid one penny towards its satisfaction or that it has ever been canceled or released. On the contrary, the note and mortgage were held uneaneeled by C. E. Lybrand prior to his death, and are now held by his administrators. J. C. Lybrand testified that he had paid nothing thereon, and that the mortgage had not been released, but was valid and outstanding in the hands of the administrators of his brother. There is no evidence that J. W. Lybrand ever intended to give the property embraced in the mortgage to J. C. Lybrand free of encumbrances, or to release the mortgage against it in his favor; and it is not likely that he would have done so, as he must have known that J. C. Lybrand was hopelessly insolvent, and that a release of the mortgage would have benefited only his creditors. The burden of "showing that the mortgage had been paid or released rested upon complainants. Gowdy v. Gowdy, 83 S. C. 349, 65 S. E. 385; Talbert v. Talbert, 97 S. C. 136, 81 S. E. 644; Graham v. Anderson, 42 Ill. 514, 92 Am. Dec. 89; 41 C. J. 793. We think it is clear that this burden has not been met. The only remaining question is whether the administrators of C. E. Lybrand are the owners and holders of the note and mortgage, and are therefore entitled to proceed with the foreclosure. As stated above, they have possession of these papers and the presumption is that they own them. Talbert v. Talbert, supra; 41 C. J. 707. As shown above, they were transferred to C. R. Lybrand by Barrett & Co., who unquestionably had good title to them. Even if it be assumed that J. W. Lybrand made the payments to Barrett & Co., which secured the transfer-of the papers to C. E. Lybrand, and that he or his estate were entitled to the transfer, we do not see how this helps the trustee of J. C. Lybrand. The validity of the transfer to C. E. Lybrand in sneh case would be a question which might be raised by J. W. Lybrand, his creditors, or his executors; hut it would not concern J. C. Lybrand or his creditors or his trustee in bankuptcy. 5 C. J. 940; Blackford v. Westchester Fire Ins. Co. (C. C. A. 8th) 101 F. 90. If, upon the payment to Barrett & Co., the creditors of J. W. Lybrand whose claims existed prior to his bankruptcy had any right in the papers released by the payment, this was a right to be asserted, not by the trustee in bankruptcy of 3. C. Lybrand, hut by the trustee in bankruptcy of J. W. Lybrand, and that trustee is making no such claim. If subsequent creditors or J. W. Lybrand himself claimed any interest in the papers, this was a claim to he asserted by his executors. These executors are parties to the suit, and they not only do not make any claim to the note and mortgage, but admit that they belong to C. E. Lybrand, and have filed answer making this admission a matter of record, and thereby effectually estopping themselves from ever claiming any interest in them. It is too clear for argument that, if in fact J. W. Lybrand did own an interest in the papers, this estoppel would inure, not to the benefit of the mortgagor, who has not paid the mortgage, but to the benefit of C. R. Lybrand’s estate, and would effectually transfer any interest of J. W. Lybrand in the papers to the administrators of C. R. Lybrand. It follows that the order directing a sale by the trustee in bankruptcy and enjoining the administrators of C. R. Lybrand from proceeding with foreclosure should be reversed, and the foreclosure allowed to proceed; and this result, we think, accords with the equities as well as with the law applicable in the ease. J. C. Lybrand gave nothing for the property in controversy except the note and mortgage, and nothing is taken from his creditors which they were ever led to believe that ho owned. If Barrett & Co. still held the noto and mortgage as collateral, there could be no doubt as to their right to foreclose. If J. W. Lybrand had paid off his debt to them by money earned after he was adjudged a bankrupt, and had taken an assignment to himself, there could be no doubt as to his right to foreclose; and where the note and mortgage have been transferred to C. R. Lybrand, whether through purchase from Barrett & Co., or through action of J. W. Lybrand or,his executors, we see no reason why C. R. Lybrand should not he allowed tq proceed with the foreclosure also. Interesting questions were raised as to the admissibility of certain evidence offered by complainants, but in the view which we take of the ease it is not necessary to consider these. Reversed. 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_crossapp	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case. UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Charles G. FLOYD, Jr., Defendant-Appellant Cross-Appellee. No. 93-1181. United States Court of Appeals, Fifth Circuit. May 20, 1993. Rehearing and Rehearing En Banc Denied July 1, 1993. Michael S. Fawer, Jeffie J. Massey, Dallas, TX, Herbert V. Larson, Jr., New Orleans, LA, for appellant. Richard A. Friedman, Crim.Div., Appellate Section, Dept, of Justice, Washington, DC, J. Steve Hinkle, Asst. U.S. Atty., Richard H. Stephens, U.S. Atty., Robert L. Webster, Asst. U.S. Atty., Dallas, TX, for appellee. Before KING, HIGGINBOTHAM, and DeMOSS, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: We vacate a pretrial restraining order freezing certain of defendant Floyd’s assets that were untainted by the alleged criminal offenses, persuaded that the forfeiture statute does not authorize their restraint before conviction. We do not reach the government’s cross-appeal contending that insufficient sums were restrained. We find our jurisdiction under 28 U.S.C. § 1292(a)(1). I. Charles G. Floyd, Jr. is the former President and CEO of United Bank. His eode-fendant Thomas Merrill Gaubert was a real estate developer who borrowed money from United Bank. The indictment alleges that as part of a conspiracy between Floyd and Gau-bert the bank loaned $1.96 million to Gaubert for a payoff of $450,000 to Floyd. These loans, and there were four, were allegedly in excess of the bank’s lending limits. The indictment also charges that Floyd and Gau-bert disguised the loans by making them to four entities controlled by Gaubert, by failing to make the required disclosures to the bank, and by making false and misleading statements about them. The government first sought an ex parte order, pursuant to 18 U.S.C. § 982(b)(1)(A), seeking to restrain certain named assets and asking for a general restraint of Floyd’s right to dispose of other assets. The district court partially granted this application, ordering Floyd to repatriate sums of $259,331 and $142,388 previously transferred to a bank in Liechtenstein. The $259,331 were proceeds from the sale of Floyd’s homestead, and the government concedes that none of the assets it has attempted to restrain were derived from or connected to Floyd’s alleged criminal activity. As a result, Floyd paid these sums, totalling $401,719, into the Registry of the Court. Thereafter, the government sought a protective order under 21 U.S.C. § 853(e)(1)(A) to restrain Floyd’s assets up to $1.96 million, urging that this amount was subject to forfeiture in the event of conviction under 18 U.S.C. § 982(a)(1) or (2) and further that because Floyd does not possess this tainted money the restraining order could also apply to substitute assets under 21 U.S.C. § 853(p). After first deciding that § 853 allows the pretrial restraint of substitute assets, the district court granted the government’s motion but only to the extent of $450,000 in substitute assets, ruling that the full $1.96 million could not be restrained because it was not persuaded of a substantial likelihood that this amount would be forfeitable upon conviction. 814 F.Supp. 1355. The effect of this decision was to require Floyd to pay an additional $48,281 into the Registry of the Court. The district court then denied Floyd’s request to use the funds for living expenses and attorneys’ fees. Floyd appeals the orders restraining $450,000 in substitute assets and denying use of the funds for expenses. The government appeals the court’s refusal to restrain the full $1.96 million. II. A. The first question is our jurisdiction over these appeals. Floyd relies on the collateral order exception to 28 U.S.C. § 1291, see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and § 1292(a)(1), which allows the interlocutory appeal of injunctions. The government contends that the order restraining $450,000 is final under § 1291 only to the extent it denied restraint of the full $1.96 million, allowing it to appeal but not Floyd. The government also seeks a writ of mandamus. We find jurisdiction over both appeals under § 1292(a)(1). In United States v. Thier, 801 F.2d 1463 (5th Cir.1986), we reached the merits of the defendant’s Fifth and Sixth Amendment challenge to a restraining order under § 853(e)(1)(A) without discussing jurisdiction. In United States v. Jenkins, 974 F.2d 32 (5th Cir.1992), we accepted jurisdiction over a district court’s denial of a motion to dissolve a pretrial restraining order issued under 18 U.S.C. § 1963(d) in a RICO conspiracy prosecution. We relied on Thier for the proposition that “[ujnder the law of this circuit, the district court’s denial of Jenkins’ motion is an interlocutory order refusing to modify or dissolve an injunction, and, as such, is immediately appealable under 28 U.S.C. § 1292(a)(1).” Id. at 34. We are not alone in holding that pretrial asset restraining orders are appealable as “injunctions” under § 1292(a)(1). United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 900-01 (2d Cir.1992); United States v. Roth, 912 F.2d 1131, 1132-33 (9th Cir.1990); see also United States v. Kramer, 912 F.2d 1257, 1259 (11th Cir.1990) (stating that restraining orders under the RICO statute “have all the indicia of a traditional injunction for purposes of appellate review”); cf. United States v. Unit No. 7 and Unit No. 8, 853 F.2d 1445, 1448 (8th Cir.1988) (finding jurisdiction over civil forfeiture under § 1292(a)(1) and jurisdiction over criminal forfeiture under the collateral order doctrine). B. Our jurisdiction under § 1292(a)(1) to review the district court’s restraining order does not encompass Floyd’s contention that Count 10 fails to state an offense. See Jenkins, 974 F.2d at 34 (“[a]s a general rule, courts of appeals should conduct only a limited review in interlocutory appeals, and should address only the propriety of the orders that gave rise to the appeal”). Moreover, we have no interlocutory appellate jurisdiction over an attack on the sufficiency of the indictment. Abney v. United States, 431 U.S. 651, 663-64, 97 S.Ct. 2034, 2042-43, 52 L.Ed.2d 651 (1977); United States v. Miller, 952 F.2d 866, 874 (5th Cir.1992). Floyd, nevertheless, urges us to consider this claim because, the argument goes, the district court’s asset-restraining order necessarily depends on the sufficiency of Count 10, and if Count 10 is insufficient we must reverse the restraining order. We are not enticed by this proffered easier path to decision. The sufficiency of the indictment can be examined adequately in any appeal from a final judgment. III. Both parties challenge the district court’s restraining order. Floyd argues that the government lacks the statutory authority to restrain untainted assets before conviction and in any event the government failed to prove the forfeitability of $450,000, and finally that the restraint of assets in this case violates the Fifth and Sixth Amendments. The government argues that the district court misapplied the statute to preclude restraint of the full $1.96 million. We do not reach the government’s argument because we agree with Floyd that § 853 does not allow the restraint of substitute assets before conviction. Section 853(e)(1)(A) is the source of any authority for the pretrial restraint of assets: Protective Orders (1) Upon application of the United States, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property described, in subsection (a) of this section for forfeiture under this section— (A) upon the filing of an indictment or information charging a violation of this subchapter or subchapter II of this chapter for which criminal forfeiture may be ordered under this section and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section ... (emphasis added). The parties agree that § 853(a) does not include substitute assets. Section 853(p) allows the forfeiture of substitute property if the property described in subsection (a) is unavailable for one of five listed reasons. The question is whether the government may restrain substitute assets before conviction under § 853(e) notwithstanding that provision’s explicit reference to the property described in § 853(a). We hold that it cannot. The government, as did the district court, relies on the reasoning of In re Billman, 915 F.2d 916, 920-21 (4th Cir.1990). In Billman, the Fourth Circuit interpreted the RICO forfeiture provisions, identical in all relevant respects to the provisions of § 853 involved here, to allow the pretrial forfeiture of substitute assets. The court in Billman read § 853(e)(1)(A) and § 853(p) together “to preserve pending trial the availability for forfeiture of property that can be forfeited after trial.” Id. at 921. The Fourth Circuit also found support from the Supreme Court in Russello v. United States, 464 U.S. 16, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983), and United States v. Monsanto, 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989). In Russello, the Court recognized that the RICO forfeiture statute directs that its provisions “shall be liberally construed to effectuate its remedial purpose.” 464 U.S. at 26-27, 104 S.Ct. at 302-03. According to the Fourth Circuit, the Supreme Court in Monsanto reached its conclusion that forfeiture under § 853 does not include an exception for the payment of attorneys’ fees by reading the provisions of the statute together instead of in isolation. Billman, 915 F.2d at 921. Whatever the ultimate soundness of Bill-man, we are not persuaded that it can fairly support the contended-for restraint of property. We find that the statute controlling the restraint before us plainly states what property may be restrained before trial. Congress made specific reference to the property described in § 853(a), and that description does not include substitute assets. Congress treated substitute assets in a different section, § 853(p). To allow the government to freeze Floyd’s untainted assets would require us to interpret the phrase “property described in subsection (a)” to mean property described in subsection (a) and (p). Like the RICO statute at issue in Russello, Congress also included a directive in § 853 that “[t]he provisions of this section shall be liberally construed to effectuate its remedial purposes.” 21 U.S.C. § 853(o). However, this command for a liberal construction does not authorize us to amend by interpretation. Monsanto gives no such license. Rather it counsels against such “glossing.” Interpreting the same statute at issue here, the Monsanto Court refused to find an exception for attorneys’ fees where Congress had not provided one and concluded by saying, “[i]f ... we are mistaken as to Congress’ intent, that body can amend this statute to otherwise provide. But the statute as presently written, cannot be read any other way.” 491 U.S. at 612, 109 S.Ct. at 2665. We also cannot read § 853(e)(1)(A) any other way. The government also argues that its interpretation harmonizes § 853(e) with § 853(f). Subsection (f) requires a court to issue a warrant of seizure upon the government’s request if the court determines there is probable cause to believe the property would be forfeitable upon conviction and an order under subsection (e) would be insufficient to protect the availability of the property. The government argues that if it cannot restrain substitute assets, it can simply obtain a warrant under subsection (f) to seize these assets. The argument continues that Congress could not have intended that the government must seize substitute assets before trial. This argument ignores the reality that a warrant is available to seize property covered by subsection (e) when its procedures are inadequate. It is not available for any asset of any type. Subsection (e) does not apply to substitute assets. The government’s contention that it has the power to seize property that is not evidence of a crime nor the fruits of a crime hints of writs of assistance. At the least it poses Fourth Amendment concerns sufficient to avert any temptation we might have to engage in interpretative handsprings to effectuate a legislative purpose the Congress did not express. REVERSED. . Floyd was charged with numerous offenses in a twelve count indictment. Count 1 charges Floyd and Gaubert with conspiracy to defraud the OCC and to commit various offenses against the United States in violation of 18 U.S.C. § 371. Count 2 charges Gaubert with corruptly giving $450,-000 to Floyd in connection with Floyd securing from United Bank four loans of $490,000 (totalling $1.96 million) in violation of 18 U.S.C. § 215. Count 3 charges Floyd with corruptly accepting the $450,000 payoff in violation of 18 U.S.C. § 215. Count 4 charges Floyd with unlawfully receiving $450,000 of the bank's money through the alleged payoff in violation of 18 U.S.C. § 1005. Counts 5-8 charge Floyd with four counts of misapplying bank funds, each pertaining to the $490,000 loans, in violation of 18 U.S.C. § 656. Count 9 charges Gaubert with money laundering by depositing in another bank a $640,000 portion of the illegal loans in violation of 18 U.S.C. § 1957. Count 10 charges Floyd with money laundering by the use of the $450,000 payoff to obtain a cashier’s check from another bank in violation of 18 U.S.C. § 1957. Count 11 seeks forfeiture under 18 U.S.C. § 982(a)(1) from Floyd and Gaubert of property "involved in” the offenses, specifically the $450,-000 cashier’s check and the remainder of the $640,000 deposited in another bank, including substitute assets to the extent the criminally derived property is unavailable. Finally Count 12 seeks forfeiture under § 982(a)(2) of property "obtained directly or indirectly” by Floyd and Gaubert up to $1.96 million including substitute assets. . § 1292. Interlocutory decision (a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions . 18 U.S.C. § 982 is the general criminal forfeiture statute. Section 982 incorporates certain subsections of 21 U.S.C. § 853. 18 U.S.C. §§ 982(b)(1)(A) and (B). . (a) Property subject to criminal forfeiture Any person convicted of a violation of this subchapter or subchapter II of this chapter punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law — • (1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; (2) any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and (3) in the case of a person convicted of engaging in a continuing criminal enterprise in violation of section 848 if this title, the person shall forfeit, in addition to any property described in paragraph (1) or (2), any of his interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise. The court, in imposing sentence on such person, shall order, in addition to any other sentence imposed pursuant to this subchapter or subchapter II of this chapter, that the person forfeit to the United States all property described in this subsection. In lieu of a fine otherwise authorized by this part, a defendant who derives profits or other proceeds from an offense may be fined not more than twice the gross profits or other proceeds. . (p) Forfeiture of substitute property If any 'of the property described in subsection (a) of this section, as a result of any act or omission of the defendant— (1) cannot be located upon the exercise of due diligence; (2) has been transferred or sold to, or deposited with, a third party; (3) has been placed beyond the jurisdiction of the court; (4) has been substantially diminished in value; or (5) has been commingled with other property which cannot be divided without difficulty; the court shall order the forfeiture of any other property of the defendant up to the value of any property described in paragraphs (1) through (5). . The analogous provisions of RICO are 18 U.S.C. §§ 1963(a), (d)(1)(A), and (m). . Moreover, the Court's reading of § 853(e)(1)(A) appears to be consistent with ours. In Monsanto, the Court stated "§ 853(e)(1)(A) is plainly aimed at implementing the commands of § 853(a).” 491 U.S. at 612, 109 S.Ct. at 2665. . (f) Warrant of seizure The Government may request the issuance of a warrant authorizing the seizure of property subject to forfeiture under this section in the same manner as provided for a search warrant. If the court determines that there is probable cause to believe that the property to be seized would, in the event of conviction, be subject to forfeiture and that an order under subsection (e) of this section may not be sufficient to assure the availability of the property for forfeiture, the court shall issue a warrant authorizing the seizure of such property. Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case? A. No B. Yes C. Not ascertained Answer:
songer_respond1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". Selwyn CLARK, Plaintiff, Appellant, v. ZIMMER MANUFACTURING COMPANY, Defendant, Appellee. No. 5804. United States Court of Appeals First Circuit. Heard May 3, 1961. Decided June 13, 1961. Christy A. Pano, Worcester, Mass., for appellant. Leon F. Sargent, Boston, Mass., with whom Donald A. Macksey and Powers, Hall, Montgomery & Weston, Boston, Mass., were on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. HARTIGAN, Circuit Judge. This is an appeal from a judgment of the United States District Court for the District of Massachusetts entered following the allowance of defendant’s motion for summary judgment. Plaintiff-appellant, Selwyn Clark, filed a declaration in the Superior Court of Worcester County in the Commonwealth of Massachusetts alleging that: On January 2, 1957 plaintiff suffered a compound fracture of the right femur. He was hospitalized and operated on in order to reduce the compound fracture. During the operation an intramedullary nail manufactured by defendant, Zimmer Manufacturing Company, was inserted within plaintiff’s femur. On January 28, 1958 the intramedullary nail snapped or broke while within plaintiff’s femur. Defendant implied and warranted that the nail was fitted for the known purpose for which it was to be used. Defendant was negligent and careless in the manufacture of the intramedullary nail, and the nail was improperly manufactured. Because defendant was so negligent and the nail was improperly manufactured plaintiff suffered severe permanent injury and various other damages. Defendant, on the basis of diversity of citizenship of the parties, removed the action to the United States District Court and subsequently filed its answer. Defendant denied that an intramedullary nail manufactured by it was used in connection with the operation performed on plaintiff on or about January 2,1957, and further denied each and every one of the plaintiff’s other allegations. Defendant made further answer by setting up various defenses, among them the following: (1) The medical treatment alleged by plaintiff to have involved the use of an intramedullary nail manufactured by defendant arose out of and was the result of injuries received by plaintiff in an automobile accident. Plaintiff made claim against Roland P. Couture for damages arising out of the personal injuries sustained by him as a result of the automobile accident. Three months following the alleged breaking of the intramedul-lary nail as alleged in plaintiff’s declaration, plaintiff on April 18,1958 by a written release for a good and valuable consideration discharged and released his claim and cause of action against Roland F. Couture. Wherefore plaintiff is barred from recovery as against the defendant for the injuries set forth in his declaration. (2) The plaintiff for the sum of $10,000 discharged and released his claim and cause of action against Roland F. Couture by a written release, a copy of which is attached and made a part of the answer. The release and compensation paid in settlement of the plaintiff’s claim against Roland F. Couture for the sum of $10,000 covered all injuries, disabilities and damage from which the plaintiff was then suffering and had incurred at the time of the execution of the release, which included the injuries alleged in this action. Wherefore the release and settlement constituted a full and complete satisfaction of any claim by the plaintiff for damages sustained by him, including the injuries and damage alleged in the declaration in this action and, consequently, plaintiff is barred from recovery against this defendant. The release in its pertinent part reads: “For And In Consideration Of the payment to me * * * of the sum of Ten Thousand and No/100ths Dollars * * * I * * * do * * * release, acquit and forever discharge Roland F. Couture and any and all other persons, firms and corporations of and from any and all actions, causes of action, claims or demands for damages, costs, loss of services, expenses, compensation, consequential damage or any other thing whatsoever on account of, or in any way growing out of, any and all known and unknown personal injuries and death and property damage resulting or to result from an occurrence or accident that happened on or about the second day of January, 1957, at or near Millbury, Massachusetts.” Defendant moved for summary judgment and in support thereof attached an affidavit of defendant’s attorney referring to the provisions of the release. A copy of the release was also attached. In opposition to the motion, plaintiff’s attorney filed his counteraffidavit which, in general, stated the facts concerning the release to be as set out in the answer of defendant, but which stated that plaintiff had no intention at that or any other time of releasing the present defendant from liability as a result of the defective condition of the nail and the breach of the implied warranty of fitness. The counteraffidavit further stated that plaintiff alleged that the act of the nail cracking, snapping or breaking is not the natural and probable consequence of the original injury, so that the release to Roland F. Couture would not be a bar; the original tortfeasor could not be expected to know or foresee that his act would cause the intramedullary nail to fracture. The counteraffidavit also alleged that there is a definite question of fact to be determined by the jury as to whether the breaking of the nail is and may be considered as a completely new injury. Plaintiff’s contentions in this appeal are similar: that the alleged negligence of the defendant had no causal relation to the original injury, but created a new and independent cause of action, liability for which was not barred by the release; or, at least, that the question of whether the fracture of the nail was a new injury was a question of material fact for a jury to determine. Defendant, however, states the question differently. It contends that the question of proximate cause is immaterial, and that the release by its express terms, and its legal implication, precludes plaintiff from maintaining this action. The parties apparently agree that the effect of the release is governed by Massachusetts law. We shall, therefore, examine the Massachusetts cases. Although there are not too many Massachusetts cases on the point, we think that the cases sufficiently indicate that state’s approach to the effect of releasing the original tortfeasor. This approach is in the following terms: whether or not the original tortfeasor could have been liable for the subsequent injury because it is the natural and probable result of the original tortfeasor’s negligence. See Purchase v. Seelye, 1918, 231 Mass. 434, 121 N.E. 413, 8 A.L.R. 503; Vatalaro v. Thomas, 1928, 262 Mass. 383, 160 N.E. 269. Cf. Annotation 1955, 40 A.L.R.2d 1075 for other approaches to the problem. Defendant contends that, even under the Massachusetts view, the release bars this action against it, since it cannot be said as a matter of law that the original tortfeasor would not be liable for the subsequent nail fracture and accompanying damages, and the release in the contemplation of the law constitutes a discharge of doubtful claims also, i. e., even those as to which the released party may not, in fact, be liable. Purchase v. Seelye, supra, and Vatalaro v. Thomas, supra, seem to support this contention. In Purchase v. Seelye, the Supreme Judicial Court of Massachusetts reversed a verdict for a defendant surgeon who had mistakenly operated for hernia on the wrong side of the plaintiff’s groin. The plaintiff had released his employer of all claims and demands “arising or which may arise out of” the rupture. The Court held that the release was no bar to the action against the surgeon and was not admissible in evidence since the “act of the defendant [surgeon] * * * was a wholly wrongful, independent and intervening cause for which the original wrongdoer was in no way responsible.” The Court stated at 121 N.E. 414: “The railroad company could not be held liable because of the defendant’s mistaken belief that he was operating upon some person other than the plaintiff; such a mistake was not an act of negligence which could be found to flow legitimately as a natural and probable consequence of the original injury, and a ruling in effect to the contrary could not properly have been made. * * * “If a surgeon employed to operate upon a patient for hernia caused by the negligence of another, instead of performing that operation removes one of the patient’s kidneys (which is in sound condition) under the mistaken belief that he is treating another patient, can it reasonably be held that such a mistake is something that might sometimes follow, and as a matter of common knowledge and experience might be expected sometimes to follow, from an injury resulting in hernia? We think not * * .” (Emphasis ours.) In Vatalaro v. Thomas, the Court upheld the direction of a verdict for a defendant surgeon in an action to recover damages alleged to be caused by an unskillful operation for hernia. The Court said: “If we assume that the defendant in the case at bar, in performing the operation for hernia, stitched too tightly the spermatic cord, which was in the area of the hernia operation, it could have been found by the Industrial Accident Board that such lack of skill was an act of negligence which, it might reasonably have been anticipated, would flow as a natural and probable consequence of the original injury * *.” 160 N. E. .at page 270. (Emphasis ours.) In several cases cited in Purchase v. Seelye, supra, the Court said there is a requirement of some identity of the cause of action against the defendant with that against the released party. See e. g., Leddy v. Barney, 1885, 139 Mass. 394, 2 N.E. 107; Brewer v. Casey, 1907, 196 Mass. 384, 82 N.E. 45. This connection is satisfied, however, if something in the nature of a claim has been made on the released party and there is a possible liability under the rules of law for the damages sought against the defendant. Cormier v. Worcester Consol. St. Ry. Co., 1919, 234 Mass. 193, 125 N.E. 549. See also Pickwick v. McCauliff, 1906, 193 Mass. 70, 78 N.E. 730. We believe that it cannot be said as a matter of law that the fracture of the nail was a completely new injury for which the original tortfeasor would be in no way responsible. See, e. g., Whalen v. City of Boston, 1939, 304 Mass. 126, 23 N.E.2d 93; Wilder v. General Motorcycle Sales Co., 1919, 232 Mass. 305, 122 N.E. 319; Hartnett v. Tripp, 1918, 231 Mass. 382, 121 N.E. 17. Under the Massachusetts law as we understand it, defendant was entitled to summary judgment in its favor. Judgment will be entered affirming the judgment of the district court. . The persons involved in this release situation will be referred to as (1) original tortfeasor, who is not a party to the instant type of case; (2) the injured party, the plaintiff in the case; and (S) tbe subsequent tortfeasor, whether he be physician, or another, and whether he only aggravates the original injury, or inflicts a new one. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_district	H	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". RICH et al. v. UNITED STATES. No. 2729. Circuit Court of Appeals, First Circuit. Jan. 10, 1933. Essex S. Abbott, of Boston, Mass. (Jacob H. Berman, of Portland, Me., and Joseph V. Carroll, of Boston, Mass., on the brief), for appellants. William W. Gallagher, Asst. U. S. Atty., of Portland, Me. (Frederick R. Dyer, U. S. Atty., of Portland, Me., on the brief), for the United States. Before BINGHAM, WILSON and MORTON, Circuit Judges. MORTON, Circuit Judge. The defendants were indicted for conspiring to possess intoxicating liquor in violation of the National Prohibition Act, tit. 2, § 3 (27 USCA § 12); for conspiring to transport intoxicating liquor unlawfully in violation of the same section; and for conspiring to violate the Tariff Act of 1930, § 593 (b) (19 USCA § 1593 (b), by fraudulently facilitating the transportation of intoxicating liquor knowing the same to have been unlawfully imported into the United States. The District Judge directed the government to elect between the two counts relating to possession and transportation under the National Prohibition Act; and the government elected to stand on the first count. The defendants were convicted on that count for a conspiracy for illegal possession, and on the third count relating to the Tariff Act for a conspiracy to facilitate the transportation of smuggled liquor. The first point made for the defendants is that the presiding judge erred in permitting conviction on both these counts. The contention is that there was only one conspiracy, and that it could not be split np into different conspiracies according to the .statutes which were violated. The jury were instructed that the two counts charged different conspiracies. By their verdict they found that both conspiracies had been proved. The sentence was general, and was not in excess of what might have been imposed upon conviction under either count. It is well settled that under such circumstances, if the conviction can be supported under either count, the sentence will not be disturbed. Abrams v. United States, 250 U. S. 616, at page 619, 40 S. Ct. 17, 63 L. Ed. 1173; Yucas v. United States (C. C. A.) 283 F. 20. It is therefore unnecessary to decide whether the evidence warranted the finding that there were two different conspiracies. The next assignment of error which calls for comment brings up the refusal of the presiding judge to direct a verdict of not guilty as to Rich. The other persons alleged to have been in the conspiracy with him were, according to the evidence, on board a motorboat which came near the shore in York river at night and there discharged a cargo of liquor. Rich was on the shore at the time, and was taken into custody. Statements then made by him to the officers, which we think were admissible against him, warranted the inference that he was interested in the shipment. The jury were carefully cautioned that he eould not be convicted unless he was party to a conspiracy which included the men on the boat. The jury found that he was party to such a conspiracy. It was for them to say. Many exceptions were taken to rulings on evidence. Seventeen assignments of error were based upon them. The first of these exceptions which has been insisted on is to the admission of statements by Rich not made in the presence of the other defendants. The jury were explicitly instructed, however, “that the conversations with Rich should not be used at all in respect to anybody but Rich, because unless you find conspiracy against these four men from the evidence, that occurred independently from Rich, you would have to find there was no conspiracy at all.” So limited, the conversations were plainly admissible. The testimony of McKenna aid Morawski (the chemist) that the liquor was of -foreign origin was objected to as hearsay and as going beyond any knowledge which the witness had. As the question is not likely to be of general importance, it is not necessary to state the evidence in detail. We are of opinion that the material parts of it were properly admitted. The other assignments of error based on rulings as to evidence—which have not been waived—have been examined. They seem to us not well founded. We think the rulings of the presiding judge were correct. The defendant further contended in effect that the overt acts, if proved, eould not be considered as proof of the conspiracy. The presiding judge ruled that the doing of the overt acts alleged, or some of them, must be proved; that the acts, if proved, might be considered on the question whether there was such a conspiracy as was charged. We think this was correct. An overt act is by definition something done in the course of the conspiracy. The allegation of it as an overt act does not take it out of its place in the chain of evidential facts. As to reasonable doubt the jury were instructed : “From the facts established no other reasonable conclusion than the guilt of the defendant must be possible. That is, the facts found must be consistent with the guilt of the defendants and consistent with nothing else in order to convict them. The defendants cannot be convicted upon suspicion, surmise, or conjecture, nor upon what the jury consider probability of guilt of the offence charged, even though the probability be a strong one.” This is the rule under which the jury must have felt they were to act; and it is a sufficiently correct definition of the burden of proof which rested upon the government. The instructions on this point, taken as a whole, were as favorable to the defendants as those approved in Commonwealth v. Leach, 160 Mass. 542, 546, 36 N. E. 471. The defendant’s criticism of the bill of exceptions which he was required to present is justified. It is unnecessarily long, and, does not conform to Rule 8 of the Supreme Court. It was, however, proper to compel the inclusion of the charge to the jury, which is often of great assistance by showing the lines on which the case was finally submitted to the jury. The judgment of the District Court is 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_petitioner	135	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. WILLIAMS et al. v. ZBARAZ et al. No. 79-4. Argued April 21, 1980 Decided June 30, 1980 Stewart, 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 and Blackmun, JJ., joined, ante, p. 329. Marshall, J., ante, p. 337, Blacemun, J., ante, p. 348, and Stevens, J., ante, p. 349, filed dissenting opinions. Victor G. Rosenblum argued the cause for appellants in No. 79-4. With him on the briefs were Dennis J. Horan, John D. Gorby, and Patrick A. Trueman. William A. Wen-zel III, Special Assistant Attorney General of Illinois, argued the cause for appellants in No. 79-5. With him on the briefs were William J. Scott, Attorney General, and James C. O’Connell and Ellen P. Brewin, Special Assistant Attorneys General. Solicitor General McCree argued the cause for the United States in No. 79-491. With him on the briefs were Assistant Attorney General Daniel and Eloise E. Davies. Robert W. Bennett argued the cause for appellees in each case. With him on the brief were Lois J. Lipton, David Goldberger, Aviva Futorian, Robert E. Lehrer, and James D. Weill. Together with No. 79-5, Miller, Acting Director, Department of Public Aid of Illinois, et al. v. Zbaraz et al., and No. 79-491, United States v. Zbaraz et al., also on appeal from the same court. Briefs of amici curiae urging reversal in all cases were filed by Robert B. Hansen, Attorney General, Paid M. Tinker, Assistant Attorney General, and Lynn D. Wardle for the State of Utah; by Bronson C. La Follette, Attorney General of Wisconsin, F. Joseph Sensenbrenner, Jr., Assistant Attorney General, and William J. Brown, Attorney General of Ohio, for the States of Wisconsin et al.; by George E. Reed and Patrick F. Geary for the United States Catholic Conference; and by Daniel J. Popeo for the Washington Legal Foundation. John J. Degnan, Attorney General, Erminie L. Conley, Assistant Attorney General, and Andrea M. Silkowitz, Deputy Attorney General, filed a brief for the State of New Jersey as amicus curiae urging reversal in No. 79-5. James Bopp, Jr., and David D. Haynes filed a brief for the National Right to Life Committee, Inc., as amicus curiae urging reversal in No. 79-4. Briefs of amici curiae urging affirmance in all cases were filed by Paul Bender, Thomas Harvey, and Roland Morris for Jane Roe et al.; and by Margo K. Rogers and Eve W. Paul for the Planned Parenthood Federation of America, Inc., et al. Briefs of amici curiae in all cases were filed by Francis X. Bellotti, Attorney General of Massachusetts, Garrick F. Cole, Assistant Attorney General, John D. Ashcroft, Attorney General of Missouri, Paul L. Douglas, Attorney General of Nebraska, and William J. Brown, Attorney General of Ohio, for the Commonwealth of Massachusetts et al.; by Dorothy T. Lang for the Physicians National Housestaff Association et al.; and by Francis D. Morrissey for Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology. Mr. Justice Stewart delivered the opinion of the Court. This suit was brought as a class action under 42 U. S. C. i 1983 in the District Court for the Northern District of Illinois to enjoin the enforcement of an Illinois statute that prohibits state medical assistance payments for all abortions except those “necessary for the preservation of the life of the woman seeking such treatment.” The plaintiffs were two physicians who perform medically necessary abortions for indigent women, a welfare rights organization, and Jane Doe, an indigent pregnant woman who alleged that she desired an abortion that was medically necessary, but not necessary to save her life. The defendant was the Director of the Illinois Department of Public Aid, the agency charged with administering the State’s medical assistance programs. Two other physicians intervened as defendants. The plaintiffs challenged the Illinois statute on both federal statutory and constitutional grounds. They asserted, first, that Title XIX of the Social Security Act, commonly known as the “Medicaid” Act, 42 U. S. C. § 1396 et seq. (1976 ed. and Supp. II), requires Illinois to provide coverage in its Medicaid plan for all medically necessary abortions, whether or not the life of the pregnant woman is endangered. Second, the plaintiffs argued that the public funding by the State of medically necessary services generally, but not of certain medically necessary abortions, violates the Equal Protection Clause of the Fourteenth Amendment. The District Court initially held that it would abstain from considering the complaint until the state courts had construed the challenged statute. The plaintiffs appealed, and the Court of Appeals for the Seventh Circuit reversed. Zbaraz v. Quern, 572 F. 2d 582. The appellate court held that abstention was inappropriate under the circumstances, and remanded the case for further proceedings, including consideration of the plaintiffs’ motion for a preliminary injunction. On remand, the District Court certified two plaintiff classes: (1) a class of all pregnant women eligible for the Illinois medical assistance programs who desire medically necessary, but not life-preserving, abortions, and (2) a class of all Illinois physicians who perform medically necessary abortions for indigent women and who are certified to obtain reimbursement under the Illinois medical assistance programs. Addressing the merits of the complaint, the District Court concluded that Title XIX and the regulations promulgated thereunder require a participating State under the Medicaid program to provide funding for all medically necessary abortions. According to the District Court, the so-called “Hyde Amendment” — under which Congress has prohibited the use of federal funds to reimburse the costs of certain medically necessary abortions — does not relieve a State of its independent obligation under Title XIX to provide Medicaid funding for all medically necessary abortions. Thus, the District Court permanently enjoined the enforcement of the Illinois statute insofar as it denied payments for abortions that are “medically necessary or medically indicated according to the professional medical judgment of a licensed physician in Illinois, exercised in light of all factors affecting a woman’s health.” The Court of Appeals again reversed. Zbaraz v. Quern, 596 F. 2d 196. Reaching the same conclusion as had the Court of Appeals for the First Circuit in Preterm, Inc., v. Dukakis, 591 F. 2d 121, the court held that the Hyde Amendment “alters Title XIX in such a way as to allow states to limit funding to the categories of abortions specified in that amendment.” 596 F. 2d, at 199. It further held, however, that a participating State may not, consistent with Title XIX, withhold funding for those medically necessary abortions for which federal reimbursement is available under the Hyde Amendment. Accordingly, the case was remanded to the District Court with instructions that the permanent injunction be modified so as to require continued state funding only “for those abortions fundable under the Hyde Amendment.” Id., at 202. The Court of Appeals also directed the District Court to proceed expeditiously to resolve the constitutional questions it had not reached. The District Court was specifically directed to consider “whether the Hyde Amendment, by limiting funding for abortions to certain circumstances even if such abortions are medically necessary, violates the Fifth Amendment.” Ibid, (footnote omitted). On the second remand, the District Court notified the Attorney General of the United States that the constitutionality of an Act of Congress had been drawn into question, and the United States intervened, pursuant to 28 U. S. C. § 2403 (a), to defend the constitutionality of the Hyde Amendment. Zbaraz v Quern, 469 F. Supp. 1212, 1215, n. 3. In view of the fact that the plaintiffs had not challenged the Hyde Amendment, but rather only the Illinois statute, the District Court expressed misgivings about the propriety of passing on the constitutionality of the federal law. . But noting that the same reasoning would apply in determining the constitutional validity of both the Illinois statute and the Hyde Amendment, the District Court observed: “Although we are not persuaded that the federal and state enactments are inseparable and would hesitate to inject into the proceeding the issue of the constitutionality of a law not directly under attack by plaintiffs, we are obviously constrained to obey the Seventh Circuit’s mandate. Therefore, while our discussion of the constitutional questions will address only the Illinois statute, the same analysis applies to the Hyde Amendment and the relief granted will encompass both laws.” Ibid. The District Court then concluded that both the Illinois-statute and the Hyde Amendment are unconstitutional insofar as they deny funding for “medically necessary abortions prior to the point of fetal viability.” Id., at 1221. If the public funding of abortions were restricted to those covered by the Hyde Amendment, the District Court thought that the effect would “be to increase substantially maternal morbidity and mortality among indigent pregnant women.” Id., at 1220. The District Court held that the state and federal funding restrictions violate the constitutional standard of equal protection because “a pregnant woman’s interest in her health so outweighs any possible state interest in the life of a non-viable fetus that, for a woman medically in need of an abortion, the state’s interest is not legitimate. At the point of viability, however, 'the relative weights of the respective interests involved’ shift, thereby legitimizing the state’s interests. After that point, therefore, ... a state may withhold funding for medically necessary abortions that are not life-preserving, even though it funds all other . medically necessary operations.” Id., at 1221. Accordingly, the District Court enjoined the Director of the Illinois Department of Public Aid from enforcing the Illinois statute to deny payment under the state medical assistance programs for medically necessary abortions prior to fetal viability. The District Court did not, however, enjoin any action by the United States. The intervening-defendant physicians, the Director of the Illinois Department of Public Aid, and the United States each appealed directly to this Court, averring jurisdiction under 28 U. S. C. § 1252. This Court consolidated the appeals and postponed further consideration of the question of jurisdiction until the hearing on the merits. 444 U. S. 962. I The asserted basis for this Court’s jurisdiction over these appeals is 28 U. S. C. § 1252, which provides in relevant part: “Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.” It is quite obvious that the literal requirements of § 1252 are satisfied in the present cases, for these appeals were taken from the final judgment of a federal court declaring unconstitutional an Act of Congress — the Hyde Amendment — in a civil action to which the United States was a party by reason of its intervention pursuant to 28 U. S. C. § 2403 (a). It is equally clear, however, that the appellees and the United States are correct in asserting that the District Court in fact lacked jurisdiction to consider the constitutionality of the Hyde Amendment, for the court acted in the absence of a case or controversy sufficient to permit an exercise of judicial power under Art. Ill of the Constitution. None of the parties to these eases ever challenged the validity of the Hyde Amendment, and the appellees could have been awarded all the relief they sought entirely on the basis of the District Court’s ruling with regard to the Illinois statute. The constitutional validity of the Hyde Amendment was interjected as an issue in these cases only by the erroneous mandate of the Court of Appeals. But, even though the District Court was simply following that mandate, the directive of the Court of Appeals could not create a case or controversy where none otherwise existed. It is clear, therefore, that the District Court exceeded its jurisdiction under Art. Ill in declaring the Hyde Amendment unconstitutional. The question thus arises whether the District Court’s lack of jurisdiction in declaring the Hyde Amendment unconstitutional divests this Court of jurisdiction over these appeals. We think not. As the Court in McLucas v. DeChamplain, 421 U. S. 21, 31-32, observed: “Our previous cases have recognized that this Court’s jurisdiction under § 1252 in no way depends on whether the district court had jurisdiction. On the contrary, an appeal under § 1252 brings before us, not only the constitutional question, but the whole ease, including threshold issues of subject-matter jurisdiction, and whether a three-judge court was required.” (Citations omitted.) Thus, in the McLucas case, which involved an appeal under § 1252 from a single-judge District Court, this Court preter-mitted the question whether the single-judge District Court had had jurisdiction to enter the challenged preliminary injunction, and instead resolved the appeal on the merits. It follows from McLucas that, notwithstanding the fact that the District Court was without jurisdiction to declare the Hyde Amendment unconstitutional, this Court has jurisdiction over these appeals and thus may review the “whole case.” II Disposition of the merits of these appeals does not require extended discussion. Insofar as we have already concluded that the District Court lacked jurisdiction to declare the Hyde Amendment unconstitutional, that portion of its judgment must be vacated. See, e. g., United States v. Johnson, 319 U. S. 302; Muskrat v. United States, 219 U. S. 346. The remaining questions concern the Illinois statute. The ap-pellees argue that (1) Title XIX requires Illinois to provide coverage in its state Medicaid plan for all medically necessary abortions, whether or not the life of the pregnant woman is endangered, and (2) the funding by Illinois of medically necessary services generally, but not of certain medically necessary abortions, violates the Equal Protection Clause of the Fourteenth Amendment. Both arguments are foreclosed by our decision today in Harris v. McRae, ante, p. 279. As to the appellees’ statutory argument, we have concluded in McRae that a participating State is not obligated under Title XIX to pay for those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. As to their constitutional argument, we have concluded in McRae that the Hyde Amendment does not violate the equal protection component of the Fifth Amendment by withholding public funding for certain medically necessary abortions, while providing funding for other medically necessary health services. It follows, for the same reasons, that the comparable funding restrictions in the Illinois statute do not violate the Equal Protection Clause of the Fourteenth Amendment. Accordingly, the judgment of the District Court is vacated, and the cases are remanded to that court for further proceedings consistent with this opinion. It is so ordered. [For dissenting opinion of Mr. Justice Brennan, see ante, p. 329.] [For dissenting opinion of Mr. Justice Marshall, see ante, p. 337.] [For dissenting opinion' of Mr. Justice Blackmun, see ante, p. 348.] [For dissenting opinion of Mr. Justice Stevens, see ante, p. 349.] The statute is codified as Ill. Rev. Stat., ch. 23 (1979). It provides in relevant part: “§ 5-5. [Medical services.] The Illinois Department, by rule, shall determine the quantity and quality of the medical assistance for which payment will be authorized, and the medical services to be provided, which may include all or part of the following: [listing 16 categories of medical services], but not including abortions, or induced miscarriages or premature births, unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment. . . "§ 6-1. Eligibility requirements. . . . Nothing in this Article shall be construed to permit the granting of financial aid where the purpose of such aid is to obtain an abortion, induced miscarriage or induced premature birth unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment. ...” “§ 7-1. Eligibility requirements. Aid in meeting the costs of necessary medical, dental, hospital, boarding or nursing care, or burial shall be given under this Article [to eligible persons], except where such aid is for the purpose of obtaining an abortion, induced miscarriage nr induced premature birth unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment. . . The medical assistance programs at issue here are the Illinois Medicaid plan, which is jointly funded by the Federal Government and the State of Illinois, and two fully state-funded programs, the Illinois General Assistance and Local Aid to Medically Indigent Programs. All opinions of the District Court other than that now under review are unreported. Since September 1976, Congress has prohibited — by means of the “Hyde Amendment” to the annual appropriations for the Department of Health, Education, and Welfare (now divided into the Department of Health and Human Services and the Department of Education) — the use of any federal funds to reimburse the cost of abortions under the Medicaid program except under certain specified circumstances. The current version of the Hyde Amendment, applicable for fiscal year 1980, provides: “[N]one of the funds provided by this joint resolution shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service.” Pub. L. 96-123, § 109, 93 Stat. 926. See also Pub. L. 96-86, § 118, 93 Stat. 662. This version of the Hyde Amendment is broader than that applicable for fiscal year 1977, which did not include the “rape or incest” exception, Pub. L. 94-439, § 209, 90 Stat. 1434, but narrower than that applicable for most of fiscal year 1978 and all of fiscal year 1979, which had an additional exception for “instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians,’' Pub. L. 95-205, §101, 91 Stat. 1460; Pub. L. 95-480, § 210, 92 Stat. 1586. In this opinion, the term “Hyde Amendment” is used generically to refer to all three versions, except where indicated otherwise. Neither the Director of the Illinois Department of Public Aid nor the intervening-physicians sought review of the judgment of the Court of Appeals. The District Court in the proceedings now on appeal proceeded on the premise that Title XIX obligates Illinois to fund all abortions reimbursable under the Hyde Amendment. That issue, therefore, is not before us on these appeals. Although the medical assistance programs funded exclusively by the State are not governed directly by either Title XIX or the Hyde Amendment, the Court of Appeals concluded that the modified injunction requiring state payments for abortions fundable under the Hyde Amendment should apply to all three Illinois medical assistance programs, see n. 2, supra. 596 F. 2d, at 202-203. Relying on a statement in the State’s brief, the Court of Appeals held that the challenged Illinois statute was intended to represent the State’s understanding of the congressional purpose Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. MEYER v. ROWEN et al. In re MEYER. No. 4295. United States Court of Appeals Tenth Circuit. Feb. 23, 1952. J. D. Skeen, Salt Lake City, Utah (F. R. Bayle, Salt Lake City, Utah, was with him on the brief), for appellant. George S. Ballif, Provo, Utah, for ap-pellees. Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges. MURRAH, Circuit Judge. This is an appeal from a judgment of the District Court of Utah, affirming an order of its referee, dismissing appellant Meyer’s petition for an arrangement of his debts under Chapter 12 of the Bankruptcy Act, as amended June 28, 1938, 11 U.S.C.A. §§ 801-909, 52 Stat. 916. When the case was here in 181 F.2d 715, we held that the debtor’s petition, filed April 21, 1949, under Section 422 of Chapter 12, operated to automatically stay state court proceedings to 'foreclose a mortgage on the real estate listed as the principal asset of the bankrupt, and that the subsequent order of sale and sale of property were therefore void. The District Court was accordingly directed to overrule the appellees’ motion to dismiss the debtor’s petition for an order to show cause why the sale of April 25, 1949, should not be set aside by the bankruptcy court. After remand, and on July 26, 1950, the Rowens, appellees and the only secured creditors, moved to dismiss the petition for arrangement for failure to comply with the mandatory requirements of Section 461 of Chapter 12. The motion recited the mortgage indebtedness, the foreclosure judgment prior to the filing of the petition for arrangement, and the subsequent sale on April 25, 1949, subject to the statutory six months period of redemption in Utah. It went on to recite that after the six months period of redemption, and after the court’s order dismissing the debtor’s petition for a show cause order, the appellees obtained possession of the property by a writ of assistance from the state court; that during the pendency of the first appeal, appellees had sold the scheduled real estate under contract, and had obligated themselves to deliver merchantable title, and that unless the bankruptcy court recognized and approved the sheriff’s sale, they would be required at great expense to conduct another sheriff’s sale. On the following August 9, the debtor petitioned the bankruptcy court for an order to show cause why he should not be restored to possession of the scheduled property, from which he had been forcibly ejected, and for damages for such wrongful ejection. A show cause order, returnable August 25, was issued on the same day. The appellees answered, admitting the forcible ejection under state court process on November 15, 1949, but denied that it was wrongful or in disregard of the bankruptcy court’s jurisdiction. They made reference to the prior motion to dismiss the proceedings, and also moved for dismissal of the show cause order. These motions were all appropriately referred to the referee in bankruptcy, but before disposition of them, and on September 26, 1950, the debtor petitioned for another order to show cause, alleging that during the pendency of the former appeal, and on April 15, 1950, the Rowens had sold the real estate involved for $23,000.00 and listed personal property for $1,000.00; that in part payment, they had taken a farm valued at $5,500.00, the remaining $17,500.00 to be paid in monthly installments; that the farm in turn was sold for $5,000.00, $1,000.00 in cash and the remainder in deferred payments; that the vendees of both of the properties are now in possession. Then it was alleged that upon inquiry, it was found that the sale of the property for $24,000.00 was a fair price, and that it was for the best interests of the debtor bankrupt to approve the sales. He accordingly asked that a trustee be appointed to receive the consideration for the sales until the termination of the bankruptcy proceedings. An order to show cause, returnable October 15, 1950, was issued. All pending motions and orders came on regularly for hearing before the referee on October 13, 1950, and evidence was heard. A meeting of the creditors under Section 434 was also called for the same date on order of the referee. The schedule attached to the petition for arrangement listed an indebtedness of $13,-459.97, secured by the Rowen mortgage on the scheduled real estate, on which the decree of foreclosure had been entered. It also listed unsecured debts in the sum of $15,248.69. The real estate covered by the Rowen mortgage was listed as the principal asset and valued at $36,000.00. Personal property valued at $10,715.00 was also scheduled. The proposed arrangement under Section 423 provided for the payment of $200.00 per month from the earnings of the debtor’s business, to be paid to a trustee and applied on the accrued interest on the state court judgment in favor of the Rowens. The residue was to be applied proportionately upon the allowed claims of other creditors until the indebtedness was reduced to the loan value of the scheduled property and until a long-time loan sufficient to pay the entire indebtedness could be negotiated. At the conclusion of the hearing on all pending motions and orders, the referee made extensive findings of facts and conclusions of law. After reciting the various proceedings, motions and orders, the proposed arrangement and the calling of the creditor’s meeting to consider it, the nonappearance of the unsecured creditors, and the formal rejection of the proposed arrangement by the Rowens, as the only secured creditors, the referee specifically found that the proposed arrangement failed to provide for the payment of the creditors other than the secured creditors, required by Section 461, sub. 2; for the payment of cost or expense of administration required by Section 461, sub. 8; provide for creditors not affected by the arrangement as required by Section 461, sub. 10; or for those affected and not accepting the proposed arrangement as required by Section 461, sub. 11; or for adequate means for the execution of the arrangement required by Section 461, sub. 12. He noted that no application had been made for confirmation of the proposed arrangement under either Sections 467 or 468, and that no such confirmation could be effected, since all of the creditors had not accepted the plan as contemplated by Section 467; nor had the plan been accepted by creditors of each class holding two-thirds in amount of the debts of such class affected by the arrangement, as contemplated and required by Section 468. Then the referee observed that no confirmation could ever be effected inasmuch as the Rowens, the only secured creditors affected by the arrangement, had expressly rejected it. Moreover, the referee found that the debtor’s petition, dated September 26, 1950, for an order to show cause why the court should not adopt and approve the sale of the listed real estate after the first dismissal of the bankruptcy proceedings,, operated as an abandonment of his petition of August 9, 1950, for an order to show cause why he should not be restored to the full possession of the same property, this for the reason that the debtor cannot be put back into possession of the property without ousting the present occupants — the ven-dees of the Rowens. The referee found that the actions taken by the Rowens for the possession of the property and the sale of it during the pend-ency of the appeal was in good faith and pursuant to a bona fide belief in their legal rights, but that any individual responsibility for the eviction of the debtor should be determined according to the law of the State of Utah in the state courts. Finally, being of the opinion that nothing could be salvaged for the creditors by adjudicating the debtor a bankrupt and proceeding in general bankruptcy, the referee overruled the debtor’s objection to his jurisdiction to dismiss the Chapter 12 proceedings, and dismissed the same, subject to the allowance of reasonable compensation to the referee by the District Court. On petition for review to the District Court, the debtor specifically challenged all of the findings and conclusions of the referee. The petition came on regularly for hearing on March 9, 1951, pursuant to which the trial court affirmed the order of the referee in all things. On appeal, the debtor does not contend that the proposed arrangement met the mandatory requirements of Section 461, or that it received the requisite acceptance of creditors for confirmation under Sections 467 or 468, The burden of his argument seems to be that since, under the mandate of this court on the former appeal, the order of sale and sale of the listed real estate was void, the bankruptcy court was without jurisdiction on remand to entertain the Rowens’ motion to dismiss the proceedings until the debtor had been restored to the full possession of the scheduled property, and that all acts done or proceedings had subsequent to the adjudication were therefore in direct contravention of this court’s judgment. It is of course true, as appellant suggests, and as we formerly held, the order of sale and the sale of the property listed in the debtor’s schedule are nullities. The state court proceedings subsequent to adjudication conferred no rights and imposed no liabilities. It was undoubtedly within the province of the bankruptcy court to invalidate the state court proceedings after bankruptcy and every act committed thereunder. But, the adjudication did not operate to wipe out the mortgage indebtedness or impair the judgment entered in the District Court prior to adjudication. After adjudication and after remand on appeal, the Rowens were secured creditors. In fact, they were the only secured creditors and they were affected by the proposed arrangement. Since they expressly rejected the proposal, it was essential to its confirmation that the arrangement, or any order confirming it, provide adequate protection for the realization by them of the value of their debts against the property “(a) by the transfer or sale, or by the retention by the debtor, of such property subject to such debts; or (b) by a sale of such property free of such debts, at not less than a fair upset price, and the transfer of such debts to the proceeds of such sale; * * * or (d) by such method as will, under and consistent with the circumstances of the particular case, equitably and fairly provide such protection”. Section 461, sub. 11. See Collier on Bankruptcy, 14th Ed., Vol. 9, Sections 8.12 and 9.03. The petition for arrangement proposed to modify or alter the Rowens’ rights as secured creditors by deferring the time for payment of the debt. And, it might be said to provide “adequate protection” under Section 461, sub. 11, by retention of the property subject to the secured debt. But, it was obviously not the purpose of Section 461, sub. 11 to dispense with an arrangement when no creditors can be found to consent to it; nor does it authorize the bankruptcy court to force secured creditors, unanimously opposed to the plan, to accept it simply because adequate protection is provided. In re Herweg, 7 Cir., 119 F.2d 941; In re Hamburger, 6 Cir., 117 F.2d 932. Manifestly therefore, the proposed arrangement must fail for the want of any written acceptance by any class of creditors. Section 481 provides in material part that “if no arrangement is accepted at the meeting of creditors or within such further time as the court may fix,” or if the arrangement is refused, where the petition was filed under Section 422, the court shall “enter an order upon hearing after notice to the debtor, the creditors, and such other persons as the court may direct, either adjudging the debtor a bankrupt and directing that bankruptcy be proceeded with pursuant to the provisions of this title or dismissing the proceeding under this chapter, whichever in the opinion of the court may be in .the interest of the creditors.” Section 481, sub. 2. Preas v. Kirkpatrick & Burks, 6 Cir., 115 F.2d 802; In re Potts, 6 Cir., 142 F.2d 883. The motion to dismiss directly challenged the sufficiency of the petition to meet the mandatory requirements of the Act, and the bankruptcy court’s jurisdiction to consider it was in no way hampered or impaired by the mandate on the former appeal, or by the proceedings in the state court during the pendency of the appeal. The debtor’s petitions for restoration and then for ratification of the sale of the property both came on for hearing concurrently with the Rowens’ motion to dismiss. The court was free to exercise its bankruptcy jurisdiction in any manner consistent with the rights of the parties, and it proceeded to do so. ' We conclude that the court did not err in the exercise of its jurisdiction to entertain the-motion to dismiss the petition for arrangement, or in the dismissal of it. The judgment of the court is affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_opinstat	A	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. REPUBLIC STEEL CORPORATION, Appellant in No. 77-1350, v. UNITED MINE WORKERS OF AMERICA, United Mine Workers of America, District No. 5, United Mine Workers of America, Local No. 9873, United Mine Workers of America, Local No. 688, Gerald Abbott, Theodore Spazok, Peter Trbovich, Nick Paskovich, and Robert Famularo. REPUBLIC STEEL CORPORATION, Appellant in No. 77-2037, v. UNITED MINE WORKERS OF AMERICA, United Mine Workers of America, District No. 5, United Mine Workers of America, Sub-District No. 3, United Mine Workers of America, Local No. 9873, United Mine Workers of America, Local No. 688, Gerald Abbott, Theodore Spazok, Peter Trbovich, Nick Pasko-vich, Robert Famularo, John Doe, and Richard Roe. Appeal of INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, in No. 77-2038. Nos. 77-1350, 77-2037, 77-2038. United States Court of Appeals, Third Circuit. Argued Dec. 9, 1977. Decided Feb. 2, 1978. Richard I. Thomas, John T. Ferguson, II, Thorp, Reed & Armstrong, Pittsburgh, Pa., for Republic Steel Corp. Harrison Combs, Gen. Counsel, United Mine Workers of America, Washington, D. C., Melvin P. Stein, Lee A. Lazar, Kuhn, Engle & Stein, Pittsburgh, Pa., for International Union, United Mine Workers of America. Before ALDISERT and WEIS, Circuit Judges, and CHRISTENSEN, District Judge. Honorable A, Sherman Christensen, of the United States District Court for the District of Utah, sitting by designation. OPINION OF THE COURT' ALDISERT, Circuit Judge. These consolidated appeals ask us to consider the liability of an international union, a district, sub-district, and two locals of that union, as well as individual union officers, for money damages sustained by an employer as the result of allegedly illegal work stoppages by union employees. Republic Steel Corporation [Republic], which owns and operates coal mines in Washington County, Pennsylvania (the “Clyde Mine”) and Westmoreland County, Pennsylvania (the “Banning Mine”), sought injunctive relief and damages in two separate law suits before different district judges, pursuant to section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185. Republic based its claims for compensatory damages on the loss of business it sustained when local members of the United Mine Workers of America [UMWA] at the Clyde and Banning Mines refused to cross picket lines erected by stranger pickets in August 1975 and January 1976. By answer the unions contended that the work stoppages were caused by wildcat strikes, not called, authorized, or ratified by the unions. The stranger pickets in the January 1976 strike were identified in Republic’s complaints as John Doe and Richard Roe, and were later conceded by the union to be members of UMWA Local 6290 who were engaged in a dispute with their employer at the Nemacolin Mine of the Buckeye Coal Company. Buckeye Coal employees, like Republic’s production and maintenance employees at the Clyde and Banning Mines, are represented for collective bargaining purposes by the UMWA and its respective district, sub-district and local unions. The record does not disclose the nature of the disputes the stranger pickets had with their employer. Thus, we do not know whether these disputes were subject to compulsory grievance-arbitration procedures under a collective bargaining agreement. Nor does the record disclose what, if any, action the unions took either to terminate the strikes engaged in by the stranger pickets or to prevent the spread of those strikes in the Clyde and Banning Mines. In No. 77-1350, summary judgment was entered in favor of all defendants; this judgment is appealed by Republic. In Nos. 77-2037 and 77-2038, summary judgment was entered as to all defendants except the International Union; both Republic and the International Union appeal the judgment to the extent that it is adverse to their respective interests. The district court in the latter case made its order final under Rule 54(b), Fed.R.Civ.P., and certified the following as a controlling question of law under 28 U.S.C. § 1292(b): Whether the International Union, UMWA, is liable in damages for failing to use every reasonable effort to stop the spread of illegal wildcat strikes waged by UMWA members against other employers, thereby inducing plaintiff’s employees to engage in sympathy strikes. This complex and important litigation thus requires us to consider and decide issues not reached in the recent sympathy strike decisions of this court and the Supreme Court. In Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976), which was decided while the present actions were pending in the district courts, the Supreme Court determined that a federal court could not enjoin a sympathy strike pending an arbitrator’s decision as to whether the strike was forbidden by an express no-strike provision in the collective bargaining contract to which the striking union was a party. Significantly, the parties in Buffalo Forge stipulated that the underlying strike was “bona fide, primary and legal”, id. at 403, 96 S.Ct. 3141, and did not contend that the issue underlying the sympathy strike was “subject to the settlement procedures provided by the contracts between the employer and respondents.” Id. at 407-08, 96 S.Ct. at 3147. Subsequently, this court in United States Steel Corp. v. United Mine Workers [U.S. Steel II], 548 F.2d 67 (3d Cir. 1976), determined that a union cannot be held liable to an employer for money damages in similar circumstances. Noting that it was presented with the same situation as the Buffalo Forge Court, where the strike was not “over any dispute between the Union and the employer that was even remotely subject to the arbitration provisions of the contract,” 548 F.2d at 73, in U.S. Steel II we expressly declined to consider whether the rationale of our prior decision in Eazor Express, Inc. v. International Brotherhood of Teamsters, 520 F.2d 951 (3d Cir. 1975), cert. denied, 424 U.S. 935, 96 S.Ct. 1149, 47 L.Ed.2d 342 (1976), would permit an employer to recover damages for the failure of a union to take all reasonable steps to prevent the spread of an unauthorized and allegedly illegal strike against another employer. 548 F.2d at 74. The question reserved in U.S. Steel II is squarely before us here. Because we determine that, in a sympathy strike context, an International union may be liable for damages if it did not exercise all reasonable efforts to halt conduct of its members which is proven to be unlawful, we reverse the summary judgment in favor of the International in No. 77-1350, while affirming the judgments of the district courts in all Other respects. I. In considering the issues presented in this appeal, we are perforce aware of the broader context in which they arise. In United Steelworkers of America v. NLRB, 530 F.2d 266 (3d Cir.), cert. denied sub nom. Dow Chemical Co. v. United Steelworkers of America, 429 U.S. 834, 97 S.Ct. 100, 50 L.Ed.2d 100 (1976), we summarized the basic tenets of the contemporary national labor policy: an advanced economy which dictates that labor-management relations be as peaceful as possible; the consensual nature of labor-management agreements upon a forum for dispute resolution; the preference for arbitration as a forum for dispute resolution; and a shift in emphasis in labor legislation from the protection of a nascent labor movement to the encouragement of collective bargaining and the development of administrative techniques for the peaceful resolution of industrial disputes. See id. at 275. These considerations evolved slowly, fueled primarily, if not exclusively, by the growth of America’s labor unions. It is particularly appropriate that we consider their evolution in the context of America’s coal miners, a group which worked toward these ends by investing tremendous amounts of their energy and resources, and sometimes their lives. A. Not until the middle third of this century were our nation’s miners lifted from a semi-feudal existence into a position with even a semblance of bargaining power equal to that of the coal operators. Unlike other industries, mining provided a work situs far removed from urban centers. In the “company town”, the miners were subjected to the economic, political, and social domination of “the company”. Their essentials were obtainable only from the company, and their daily life was often subject to 24-hour supervision by para-military police employed by the company. Thus, although the call to unionize had been sounded to American miners as early as the mid-nineteenth century, for many years management remained supremely endowed with innumerable rights while labor’s right to organize (other than in craft unions) was virtually nonexistent. The situation is reflected in the law reports as well as the history books. In Vegelahn v. Guntner, 167 Mass. 92, 44 N.E. 1077 (1896), for example, despite a classic dissent by Justice Holmes, the Supreme Judicial Court of Massachusetts declared that placing two pickets at a plant entrance constituted “a private nuisance”. And in 1917, in Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 250, 38 S.Ct. 65, 72, 62 L.Ed. 260 (1917), the Supreme Court afforded judicial sanction to the “yellow dog contract”, determining “[t]hat the plaintiff [coal operator] was acting within its lawful rights in employing its men only upon terms of continuing non-membership in the United Mine Workers of America is not open to question.” See also International Organization v. Red Jacket Consol. Coal & Coke Co., 18 F.2d 839 (4th Cir.), cert. denied, 275 U.S. 536, 48 S.Ct. 31, 72 L.Ed. 413 (1927). We note that a common thread running throughout the many years of labor’s struggle to unionize was that of violence. For decades, the coal operators violently, and successfully, opposed UMWA organizational efforts from Pennsylvania to Colorado. Families of the miners did not escape “the company’s” brutality. Upon the calling of a strike, for example, a favorite operator ploy was to evict all miners and their families from their company houses. Thus, in 1913 the Colorado Fuel and Iron Company evicted families into the freezing temperatures of a Colorado winter, forcing some 9,000 persons to settle in tent colonies set up by the UMWA. The tent colonies were then subjected to machine gun attacks by company detectives in an armored car. And the history of Mingo, McDowell, and Logan Counties in West Virginia in the 1920’s is an account of virtual civil war. B. It took congressional enactments to lift our nation’s coal miners from their marginal existence, to outlaw finally oppressive tactics such as the “yellow dog contract”, and to stem the tide of violence between employer and employee. On June 16, 1933, President Roosevelt signed the National Industrial Recovery Act [NIRA], which contained the famous section 7(a), vesting in employees “the right to organize and bargain collectively through representatives of their own choosing, and [to] be free from the interference, restraint, or coercion of employers of labor . . . .” NIRA, ch. 90, § 7(a), 48 Stat. 195, 198 (1933). Section 7(a) was to become the keystone of our national labor policy in the original National Labor Relations Act of 1935 [NLRA]. The UMWA can be justifiably proud of its role in formulating the new legislation. And its success as a strong national labor union is directly attributable to the national labor policy as expressed by the congressional mandates: instilled with national force and vigor, the union was enabled to engage in industry-wide collective bargaining. C. By the late 1960’s, it appeared that our national labor policy had crystallized into an emphasis on the peaceful resolution of industrial disputes. See Boys Market, Inc. v. Retail Clerks Union, 398 U.S. 235, 251, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Gateway Coal Co. v. UMWA, 414 U.S. 368, 381, 94 S.Ct. 629, 38 L.Ed.2d 583 (1973); Gould, On Labor Injunctions, Unions and the Judges: The Boys Market Case, 1970 Sup.Ct.Rev. 215, 236 (Kurland ed.); The Supreme Court, 1969 Term, 84 Harv.L.Rev. 30, 200-01 (1970). The emphasis on peaceful labor-management relations had special relevance to coal operator-miner relationships, for their experience had been far from peaceful at its inception. Were we able to end here, the historical development would appear to be one of great maturity. But a new, if not yet entrenched, phase, evidenced in increasingly frequent occurrences in the 1970’s, strongly suggests a troubling return to reliance on violence in the dispute-settling process. Those of us who live in the coal regions bear witness to constant accounts of new and recurring violence in the coal fields. Many accounts involve members of the UMWA, the very union which has already suffered so much. The appearance of stranger or roving wildcat pickets, moreover, is said to be a significant factor triggering damage to life and property. Thus, while we are quick to note that the record in the present appeal does not disclose that violence was forthcoming from stranger pickets, we just as quickly appreciate the deadly potential for violence that currently exists in remote rural and mountain coal fields. This realization makes all the more serious our consideration of a union’s responsibility to ensure that its members respect the national labor policy of peaceful resolution of industrial disputes. II. Our analysis of whether the unions breached a duty in the specific events leading to the present litigation has as a focal point the National Bituminous Coal Wage Agreement of 1974, to which both Republic and the International Union “on behalf of each member thereof” are parties. Noting that the grievance-arbitration machinery in the National Bituminous Coal Wage Agreement of 1968 is “the exclusive and compulsory means for finally resolving disputes” between the parties, the Supreme Court has interpreted the Settlement of Local Disputes section of that Agreement as “an implied undertaking not to strike.” Gateway Coal Co. v. UMWA, 414 U.S. 368, 385 n. 15, 381, 94 S.Ct. 629, 640, 38 L.Ed.2d 583 (1974). This court has similarly interpreted the Settlement of Disputes provisions in the 1971 Agreement, Island Creek Coal Co. v. UMWA, 507 F.2d 650 (3d Cir. 1975), and has determined that the 1974 provisions are virtually identical to those of the 1971 Agreement. United States Steel Corp. v. UMWA, 534 F.2d 1063 (3d Cir. 1976). In Gateway Coal, as in the present appeal, the UMWA stressed that the Agreement contains no express no-strike clause. Gateway Coal’s response, that the implied obligation arises from the contractual commitment to submit disputes to arbitration, is instructive: “[A] no-strike obligation, express or implied, is the quid pro quo for an undertaking by the employer to submit grievance disputes to the process of arbitration.” 414 U.S. at 382, 94 S.Ct. at 639, quoting Boys Market, Inc. v. Retail Clerks Union, 398 U.S. 235, 248, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). A. This judicial recognition of, and involvement in, the “quid pro quo” nature of mutual labor agreements was presaged, of course, by enactment of section 301 of the Labor-Management Relations Act (Taft-Hartley Act), 29 U.S.C. § 185(a), which put labor on notice that our national labor policy is predicated on mutual obligations as well as rights. Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), in which the Court held that a union can obtain specific performance of an employer’s promise to arbitrate grievances under section 301(a), examined the statute as follows: Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike. Viewed in this light, the legislation does more than confer jurisdiction in the federal courts over labor organizations. It expresses a federal policy that federal courts should enforce these agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way. To be sure, there is a great medley of ideas reflected in the [congressional] hearings, reports, and debates on this Act. Yet, to repeat, the entire tenor of the history indicates that the agreement to arbitrate grievance disputes was considered as a quid pro quo of a no-strike agreement. And when in the House the debate narrowed to the question whether § 301 was more than jurisdictional, it became abundantly clear that the purpose of the section was to provide the necessary legal remedies. 353 U.S. at 455, 77 S.Ct. at 917. And three years after Lincoln Mills, in the Steelworkers Trilogy, the Court enunciated the now familiar presumption of arbitrability in labor disputes: An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). One important step remained. Section 301 had to be squared with the Norris-LaGuardia Act’s proscription against federal injunctions of labor disputes. The landmark decision in Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), was discussed by this court in United Steelworkers v. NLRB, 530 F.2d 266, 274 (3d Cir.), cert. denied sub nom. Dow Chemical Co. v. United Steelworkers of America, 429 U.S. 834, 97 S.Ct. 100, 50 L.Ed.2d 100 (1976): Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), extended the theories of both Lincoln Mills and the Steelworkers Trilogy. See ibid, at 241-244, 248, 90 S.Ct. 1583. Reasoning that the literal, anti-injunction terms of the Norris-La-Guardia Act must be accommodated with the subsequently enacted Section 301 of the Labor Management Relations Act and the purposes of labor arbitration, the Court held that Section 301 authorized injunctions against strikes in violation of contracts that called for arbitration of the underlying grievances. In so ruling, the Court emphasized that “consideration must be given to the total corpus of pertinent law and the policies that inspired ostensibly inconsistent provisions.” Ibid. at 250, 90 S.Ct. at 1592. Several threads of rationale run through Boys Markets. First, the importance of arbitration “as an instrument of federal policy for resolving disputes between labor and management”. Ibid., 398 U.S. at 243, 90 S.Ct. at 1588. Second, the availability, at least theoretically, of disparate remedies in state as opposed to federal courts under then-existing law. Ibid., 398 U.S. at 243-46, 90 S.Ct. 1583. Third, the reaffirmation that a no-strike clause is a quid pro quo for an employer’s agreement to submit disputes to arbitration, coupled with the realization that if the no-strike clause were not enforceable, there would be little incentive for management to agree to arbitration. Ibid., 398 U.S. at 247-48, 90 S.Ct. 1583. Fourth, the belief that an accommodation between the Norris-LaGuardia Act and Section 301 was appropriate because “[a]s labor organizations grew in strength and developed toward maturity, congressional emphasis shifted from protection of the nascent labor movement to the encouragement of collective bargaining and to administrative techniques for the peaceful resolution of industrial disputes.” Ibid, at 251, 90 S.Ct. at 1593. Thus, Boys Markets sanctioned judicial enforcement of a no-strike clause given as a quid pro quo for an arbitration clause that is specifically enforceable on the authority of Lincoln Mills; so viewed, it is the corollary of Lincoln Mills. At the same time, a Boys Markets injunction is predicated on submission of the underlying dispute to the arbitral forum; accordingly, Boys Markets advances the Steelworkers principles as well. B. The union argues, as it must, that Buffalo Forge, supra, and U.S. Steel II, supra, operate to relieve a union of its obligations under the foregoing principles when they arise in a sympathy strike context. We cannot agree that these cases render an employer powerless to seek any relief whenever its employees are constrained to join in a sympathy action. Buffalo Forge restricted the availability of injunctive relief pending an arbitrator’s decision on the scope of a no-strike obligation. The policy considerations of Boys Markets, supra, were determined not to apply when the issues underlying a strike are not arbitrable. A corollary to this rule, too infrequently noted, is an implied concession that the federal courts may consider enjoining a sympathy strike if it be shown that the issues of the underlying strike were not only found to be arbitrable, but were found by an arbitrator to violate the union’s no-strike obligation. The corollary belies the contention that Buffalo Forge precluded any relief in sympathy strike situations. More important, nor did Buffalo Forge preclude relief in all sympathy strikes. The underlying cause of the strike in Buffalo Forge was a recognition strike emanating from an employer’s failure to recognize the union as a bargaining unit for certain of its employees. Clearly, the underlying dispute was not subject to grievance-arbitration procedures of a collective bargaining agreement, for there was simply no contract over which an arbitrable dispute could occur. Thus the parties had stipulated that the underlying strike was “bona fide, primary and legal”, 428 U.S. at 403, 96 S.Ct. 3141, and the Supreme Court could find that [t]he strike at issue was a sympathy strike in support of sister unions negotiating with the employer; neither- [the sympathy strike’s] causes nor the issue underlying it [negotiations for a contract] was subject to the settlement procedures provided by the contracts between the employer and the respondents. The strike had neither the purpose nor the effect of denying or evading an obligation to arbitrate or of depriving the employer of his bargain. 428 U.S. at 407-08, 96 S.Ct. at 3147. In so finding, what the Buffalo Forge Court did not decide became as important as what it did: it did instruct that a potentially lawful sympathy action is not of the quality to invoke Boys Markets prior to an arbitrator’s determination, but it did not decide what remedies are available to an employer when the issues precipitating the underlying strike are subject to settlement procedures. U.S. Steel II shares with Buffalo Forge the crucial factor of the nonarbitrability of issues which had precipitated the underlying strike. We found in U.S. Steel II that [i]n this case, as in Buffalo Forge, the strike was not “over any dispute between the Union and the employer that was even remotely subject to the arbitration provisions of the contract.” 428 U.S. at 407, 96 S.Ct. at 3147. (emphasis in original). The Robena strike, like the strike in Buffalo Forge, “was a sympathy strike . ; neither its causes nor the issue underlying it were subject to the settlement procedures provided by the contract between the employer” and the union. Id. 548 F.2d at 73. Thus, because our analysis indicates that neither Buffalo Forge nor U.S. Steel II was tried on the theory Republic advances here — that the sympathy action resulted from an illegal underlying strike whose issues were subject to the compulsory settlement procedures of a collective bargaining agreement — we cannot ignore the potential presence of a no-strike obligation in the present appeals. In this respect, we must conclude that Buffalo Forge and U.S. Steel II do not compel rejection of Republic’s claim for damages. C. In order to prevent an adverse judgment on remand, however, Republic must prove more than the proposition that Buffalo Forge and U.S. Steel II do not bar all possible relief. Having cleared this hurdle, it is faced with the task.of advancing affirmative support for its theory of recovery. Republic may find general support in this court’s decision in Eazor Express, Inc., supra, but the absence at this point of record support for the allegation that the issues precipitating the underlying strike were subject to collective bargaining suggests the necessity for more testimony and evidence than that adduced in the summary judgment proceedings below. Without attempting to plot the extreme boundaries of proof, we think that Republic should at least be required to prove that the stranger picketing was conduct that would be enjoinable under the Boys Markets rule. That is, Republic should be required to prove that the dispute stranger UMWA pickets had with their employer or employers was one that was subject to the grievance and arbitration clause contained in the Agreement. And, of course, Republic must prove that the UMWA knew or should have known of the action of the stranger pickets, and nevertheless failed to exhaust all reasonable means to bring that unlawful action to an end. Ill Having determined that liability may exist, we are left with the thorny question of who may be held liable. We note initially that the individual officers and members of local unions cannot be held liable, for in Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), the Supreme Court declared that an injured employer could not properly look to union officers and members in their individual capacities for damages suffered as a consequence of allegedly unlawful concerted activity: “When Congress passed § 301, it declared its view that only the union was to be made to respond for union wrongs, and that the union members were not to be subject to levy.” Id. at 247-48, 82 S.Ct. at 1324. See also Sinclair Oil Corp. v. Oil, Chemical & Atomic Workers International Union, 452 F.2d 49, 52-54 (7th Cir. 1971). We are not provided with similarly clear guidance in delineating international, district, sub-district and local liability. However, in the sympathy strike context there is an important factual distinction between the international on the one hand, and the district, sub-district, and local unions on the other. This is their ability to communicate with, and to the greatest lawful extent control, the concerted activities of their members in both the underlying and the resulting strikes. An implied obligation to take reasonable steps to prevent the spread of unlawful strikes can be imposed only to the extent that it can be exercised, and in the sympathy strike context, the crucial communication link which exists between the international union and both sets of strikers may well be nonexistent between the geographically limited branches of that union and the roving pickets. There is admittedly a temptation to remand as to all union parties for a determination of the extent to which each exercised some control over both sets of strikers, for it is at least theoretically possible that the district, sub-district and local unions retained control either through specific membership ties or through the nature of their individual identification with the International. But in the absence of sufficient allegations to this effect, and especially in the absence of sufficient factual data presented by Republic in opposition to the defendants’ motions for summary judgment, we are not constrained to disturb summary judgments in favor of the district, sub-district, and the locals. This is not to suggest, however, that a different result might not be forthcoming upon proper allegations and proof that the districts, sub-districts, and locals had discrete obligations under the collective bargaining agreement, custom, and/or the provisions of the constitutions and by-laws of the several unions. In the absence of sufficient allegations and proof to this effect, we are more properly influenced by Buffalo Forge’s pointed reminder that a mandatory arbitration clause does not imply a duty not to engage in sympathy strikes. 428 U.S. at 408 n. 10, 96 S.Ct. 3141. This, in the end, is all the district, sub-district and locals are alleged to have done. Accordingly, we reject Republic’s effort to impose liability on the district, sub-district and local unions. We do this with an express reservation: recognizing that these entities are often as much the victims of unlawful conduct as are the coal operators, we urge them to use all available powers and authority to discipline members who may be at the root of unlawful concerted activities. “Provisions in union constitutions and bylaws for fines and expulsion of recalcitrants . . . are . . . commonplace and were commonplace at the time of the Taft-Hartley Amendments.” NLRB v. Allis Chalmers Mfg. Co., 388 U.S. 175, 181-82, 87 S.Ct. 2001, 2007,18 L.Ed.2d 1123 (1967). Although these amendments safeguard the right of a member “to express any views, arguments, or opinions”, the statute contains an extremely important exception: “Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.” 29 U.S.C. § 411(a)(2). Indeed, this court has upheld the ultimate sanction — expulsion from the union — in response to a union member’s persistence in organizing work stoppages in violation of the collective bargaining agreement in force. Lewis v. American Fed’n of State, County and Municipal Employees, 407 F.2d 1185 (3d Cir. 1969). As we have indicated, on this record the International stands in a decidedly different posture from that of the districts, sub-districts and locals. When stranger pickets appear and interfere with the work of local members, it is not merely the brute force of these strangers that causes the local work stoppage. Rather, the interaction of the local miners and the stranger pickets comes from their common bond of membership in the same International union. Because membership in the International is the driving force, the International has a particularly grave responsibility to employ all reasonable means to ensure that unlawful actions be halted. This responsibility is heightened by the industry-wide nature of the contract between the International and Republic. Having signed on behalf of all of its members, the International was perforce acutely aware of the effects of the challenged sympathy strike on its various local and district memberships. There was a concommitant awareness by Republic that it shared with Buckeye the same agreement with the International. Under these circumstances, it is not unreasonable for a company in Republic’s position to expect that the International would enforce its agreement with Buckeye just as it would with Republic. Indeed, the essence of our analysis of the quid pro quo nature of the labor contract would indicate that where there is an industry-wide contract, there is an industry-wide commitment to the peaceful settlement of grievances. Thus, after thoroughly considering the foregoing principles of labor-management relations, and in light of the fact that both the stranger pickets and the striking Republic employees were members of the International and thereby subject to its guidance and control, we conclude that the International may be liable in damages if it is determined not to have exercised reasonable effort to halt unlawful conduct on the part of its members. IV. Our holding that the International may be liable is mandated by the public interest. The International union simply must bear certain obligations if it is to continue to be entitled to the rights and benefits accorded by our national labor policy. To the extent that any union — local, district, or international; craft, industrial, or independent— refuses to enforce appropriately authorized union discipline upon recalcitrant members who violate either collective bargaining agreements or internal by-laws of the union, that union can be said to have abrogated a proportion of valued rights granted to the union under our national labor policy. We note that through the instrumentality of the federal court system, the American public has intervened in recent years on literally thousands of occasions to umpire, adjust, adjudicate, settle, or impose sanctions in disputes between the local, district, and international units of the UMWA and the coal operators. We do not believe it is asking too much that the International fulfill some of its own responsibility to umpire, adjust, adjudicate, and settle, and where necessary, to impose sanctions upon those members who wilfully repudiate the obligations under the contract, defy the internal laws of the union, and disregard the federal statutes that constitute our national labor policy. We will reverse that portion of the order filed January 5, 1977 in District Court case No. 75-1083, appealed at our case No. 77-1350, which granted summary judgment in favor of the International, insofar as monetary damages are concerned, and remand this cause to the District Court. In all other respects the order will be affirmed. We will affirm the District Court orders filed March 21, 1977 and June 27, 1977 in District Court case No. 76-92, appealed at our Nos. 77-2037 and 77-2038. Each party to bear its own costs. . Without determining the validity of Republic’s claim for injunctive relief, we note that this aspect of the case is now moot. . In the posture in which we decide this case, the certified question must be treated as reading “can be liable” rather than “is liable”. . The operative vocabulary in sympathy strike cases is evolving as rapidly as the litigation in this area. The strike which precipitates the sympathy action is properly referred to as the “underlying strike”. Although the terms “primary” and “secondary” strike have sometimes appeared in reference to the underlying and sympathy strikes, respectively, it is thought that the former terms are more properly used as terms of art in labor boycott situations. . Saul Alinsky has eloquently described life in a company town prior to 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_counsel1	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party UNITED STATES of America, Appellant, v. Wilbur G. WARD, Circuit Court Clerk and Registrar, George County, Mississippi, et al., Appellees. No. 21717. United States Court of Appeals Fifth Circuit. May 25, 1965. Rehearing Denied June 24, 1965. Peter Smith, Harold H. Greene, Attys., Dept, of Justice, Washington, D. C., Robert E. Hauberg, U. S. Atty., Jackson, Miss., John Doar, Acting Asst. Atty. Gen., Frank E. Schwelb, Gerald P. Chop-pin, Peter S. Smith, Attorneys, Department of Justice, Washington, D. C., for appellant. Peter M. Stockett, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., William T. Bailey, Lucedale, Miss., William A. Allain, Asst. Atty. Gen., Jackson, Miss., Joe T. Patterson, Atty. Gen., of State of Mississippi, for appellees. Before WOODBURY, WISDOM, and BELL, Circuit Judges. Of the Mrst Circuit, sitting by designation. BELL, Circuit Judge. This appeal involves the right of Negroes to vote in George County, Mississippi. It is from an order of the District Court granting only partial relief. On April 13, 1962, the Attorney General, acting in the name of the United States, filed a complaint against Eldred “W. Green, Circuit Court Clerk and Registrar of George County; and the State of Mississippi, under 42 U.S.CA. § 1971, as .amended by Part IV of the Civil Rights Act of 1957 and Title VI • of the Civil Rights Act of 1960. The complaint alleged that the defendants had engaged in .racially discriminatory acts with respect to voter registration. It was alleged that more stringent standards were applied to Negro applicants for registration than to white applicants, that Negroes were .arbitrarily denied the opportunity to register, that the Registrar failed and refused to afford Negro applicants the isame opportunity to register as was afforded to white applicants, and failed and refused to register Negroes who possessed the same or similar qualifications as white applicants who had theretofore been registered. It was said that these deprivations were pursuant to a pattern and practice. The prayer of the complaint was for findings that the acts and practices described were racially discriminatory, constituted deprivations of the right to vote secured by 42 U.S.C.A. § 1971(a), that such deprivations were pursuant to a pattern and practice, and for injunctive relief. On April 24, 1962, the District Court restrained defendant Green from applying different and more difficult tests to Negroes than whites, delaying or refusing to register qualified Negroes, requiring Negroes to name members of the county executive committee, the election commissioners and other officials as a part of the test for registration; requiring Negroes to meet with the election commissioners in order to register; and from registering only citizens with whom he was personally acquainted. After a period of skirmishing through the use of the Federal Rules of Civil Procedure, the defendants filed their answer on December 13, 1962 denying the alleged discriminatory acts and practices, challenging the jurisdiction of the court and the constitutionality of 42 U.S.C.A. § 1971(b), (c), (d) and (e). On January 23, 1964 the defendants filed, without success, separate motions to dismiss the complaint on the ground that the State Board of Election Commissioners had accepted defendant Green’s resignation as registrar on January 22, 1964 and had appointed Wilbur Ward as his successor on the same date. The case came on for final hearing on January 27, 1964 and the District Court entered its findings of fact and conclusions of law and order on February 19, 1965. Ward had previously been substituted for Green as a party defendant. The voting age population of George County by race, as of the 1960 census, was 5,276 whites and 580 Negroes. There were 24 Negroes on the voter registration books at the time of the trial. The number of whites on the books exceeded 5,276, no doubt due to a failure to purge the rolls of those who had died or moved away. The most recent reregistration of voters in the county was in 1935. Eight Negroes were registered in that year, two in 1936, one in 1939, one in 1943, one in 1947, one in 1955, five in 1962 and four in 1963. Between 1955 and the entry of the restraining order of April 24, 1962, only one Negro was registered. The Registrar in office for the period 1948 to January 1956 registered 397 whites and one Negro. The Registrar from January 1956 to January 1960 registered 1,349 whites and no Negroes. From the inception of his term in 1960 until he began to retain application forms on May 21,1960, Registrar Green registered 77 whites and no Negroes. At the time of the trial, 685 written applications for registration were on file in the Registrar’s office, dating from May 21, 1960 to December 30, 1963. These show that during the portion of this period ending with the date of the restraining order, April 24, 1963, Mr. Green registered 281 whites and no Negroes, while rejecting two whites and 15 Negroes. After the entry of the restraining order and during the remainder of the period, he accepted 351 whites and 9 Negroes while rejecting 10 whites and 17 Negroes. Considerable evidence was adduced on the trial demonstrating that illiterate and semi-literate whites were registered-both before and after the date in 1955 when the statutory standards for registration were changed, and after which date a greater degree of literacy was required. Moreover, it was clear that Mr. Green assisted whites in registering but not Negroes. This assistance was in the form of suggestions as to answers, and leniency in grading. Additional discrimination against Negroes came in the form of assigning white applicants sections of the state constitution for interpretation which were simpler in form than those given to Negroes. Negro applicants were told on occasion that the registration books were closed, or that they would have to meet with a committee or simply that they could not register. One Negro applicant was told that he would have to file a statement certifying his desire to register which statement would be presented to the election commissioners. There is evidence that discrimination in the form of assigning Negroes more difficult sections of the constitution transpired even after the entry of the restraining order. For example, 64 percent of the white applicants were assigned § 30 of the constitution, the simplest section of the constitution used by Mr. Green, to interpret while only 24 percent of the Negroes were given this section. The testimony of Mr. Ward indicates that he intended to conduct the office of Registrar without discrimination. He would strike any white person from the voter rolls who had admitted at the trial that he was unqualified, but he did not plan to investigate unqualified applicants who did not testify at the trial. His purpose would be to follow the Mississippi law in the operation of his office, including the constitutional interpretation requirements. He submitted an affidavit to this court under date of March- 25, 1965 showing that during hife tenure in office 195 people had applied for registration; 191 white and 4 Negroes, and that he had registered 170 of the whites and 2- of the Negroes while rejecting the others. The percentage of the voting age Negroes who were registered had increased from approximately two percent at the time of suit to three percent at the time of trial, a period of nearly two years. The District Court found as a fact that Registrar Green had desisted from most of his discriminatory practices after the entry of the restraining order, but had continued to illegally assist white registrants, and had wrongfully passed a number of white illiterates. The Registrar was permanently enjoined from discriminating in the administration of the registration law, including the processing, testing, grading and notification of applicants. The use of sections of the state constitution for interpretation was restricted to 25 to be selected by the Registrar and which could be readily understood by the average voter in George County, with the added requirement that the sections be drawn at random by the applicant from a container. No persons were to be registered who could not read and write reasonably well, and who could not give reasonably satisfactory answers to the questions contained on the official application form. No help was to be given to any applicant except as to answering questions regarding the proper use of the form. The Registrar was directed to request the election commissioners to examine the registration records and to expunge the names of all illiterates thereon. The United States was given access to the registration records, and permission to make copies of them every four months during the next ensuing twelve months. The State of Mississippi was dismissed as a party defendant, and the court failed to make a finding as to a pattern or practice under § 1971(e). This action and inaction of the court is assigned as error. The failure of the District Court to give relief in the form of freezing so as to afford Negro applicants the opportunity to register under the same standards applied to whites already on the voting rolls was also assigned as error. In addition, and this relief was sought for the first time in a proposed decree submitted to the District Court after trial, it is urged that the District Court should have ordered the registration of nine named Negro applicants who had filled out application forms demonstrating that they were as qualified as whites whose applications for registration had theretofore been accepted. I. The District Court erred in dismissing the complaint as to the State of Mississippi. The contention that § 601 (b) of the Civil Rights Act of 1960, 42 U.S.C.A. § 1971(c), ****8 either does not authorize suits by the United States against a state, or, in any event is unconstitutional has now been settled by the Supreme Court adversely to defendants. United States v. Mississippi, 1965, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717. The court pointed out that the language of the statute clearly permits the United States to sue a state in a suit such as this, and that the Fifteenth Amendment gave Congress the power to so provide. It was noted that the law for many years has been that the United States may institute proceedings against states to protect federally guaranteed rights of citizens. This authority is over and above the necessity of joining the state in a suit requesting relief in the form of freezing. See United States v. State of Mississippi (Walthall County), 5 Cir., 1964, 339 F.2d 679; and United States v. Duke, supra. II. The District Court also erred in failing to make a specific finding that the disclosed discrimination against Negroes in the voter registration process was pursuant to a pattern and practice. It is now settled that such a finding, where sought, must be made, and may not be pretermitted. This follows from the clear language of the statute, 42 U.S.C.A. § 1971(e): “(e) In any proceeding instituted pursuant to subsection (c) of this section in the event the court finds that any person has been deprived on account of race or color of any right or privilege secured by subsection (a) of this section, the court shall upon request of the Attorney General and after each party has been given notice and the opportunity to be heard make a finding whether such deprivation was or is pursuant to a pattern or practice. * * ” See our express holdings to this effect in United States v. State of Mississippi (Walthall County), supra; and United States v. Logue, 5 Cir., 1965, 344 F.2d 290. See also United States v. Mayton, 5 Cir., 1964, 335 F.2d 153. In United States v. Fox, 5 Cir., 1964, 334 F.2d 449, and United States v. Logue, supra, we deemed it the better practice to remand for consideration of this question in the first instance by the District Court. However, the appeals there were from motions for preliminary injunction. Here the appeal is from an order entered after a final hearing and we think good judicial administration warrants, if indeed it does not dictate, final disposition in light of the complete record. We hold that the evidence as a matter of law demands a finding that the discrimination here in issue was pursuant to a pattern and practice within the meaning of § 1971(e), supra. III. Discrimination having been found in the voter registration process in George County against Negro applicants, and it having also now been held that such deprivation of rights thereunder was pursuant to a pattern and practice, we come then to the question of the relief to be accorded. The United States sought relief in the form of freezing. For a discussion of the freezing principle, see United States v. Duke, supra, and the authorities there cited. We hold that it was error for the District Court not to have granted such relief. Defendants rely on United States v. Atkins, 5 Cir., 1963, 323 F.2d 733, where this court held that relief by way of the freezing principle would be appropriate only where there was no alternative whereby justice could be obtained, and suggested that purging the registration rolls of improperly registered whites might be such an alternative. See discussion in United States v. State of Louisiana, E.D. La., 1963, 225 F.Supp, 353, 396-397, aff’d, 1965, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709, outlining the deficiencies of purging. Thereafter in United States v. Duke, and United States v. State of Mississippi (Walthall County), both supra, this court invoked the freezing principle to afford relief under circumstances similar to those here-presented. Further light was shed on this problem and principle by the Supreme Court in affirming the freezing relief granted in United States v. State of Louisiana, supra. Justice Black, speaking for the court, said: “This leaves for consideration the District Court’s decree. We bear in mind that the court has not merely the .power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future. * * * ” We hold that freezing must be invoked in this case on remand in the form and manner outlined in the decree which is to be entered. See Part V, infra. IV. We come now to consider whether the court erred in having failed to order the registration of the nine named Negro applicants on the basis of their prior applications in the light of treatment theretofore accorded white applicants. We think the relief to be accorded under the decree that is to be entered on remand is an adequate vehicle for the vindication of the right of the applicants to register and the disposition of this phase of the case is thus left for disposition under that decree. These applicants may follow the plan promulgated in the decree along with all other Negro applicants who may wish to seek registration. However, their applications should be promptly reconsidered, and they should be registered without delay if they meet the standards set out in the plan. V. The United States has submitted a suggested decree at our request for entry on remand. Defendants responded to it at our request, and have filed written objections to some -parts of it. This matter has had our careful consideration, and has been weighed in the balance of the long delay since suit was filed, the discrimination shown in the record, and the relative ease with which the small number of Negroes of voting age in George County (580) may be accommodated for registration. The District Court is directed upon remand to enter forthwith the following judgment in this matter, the form and substance of which is to some extent analogized with our decisions in the Duke and Walthall County cases. “In accordance with and pursuant to the opinion of the United States Court of Appeals for the Fifth Circuit in the within matter, this court finds that the successive registrars of voters of George County, Mississippi have engaged in acts and practices which have deprived Negro citizens of George County of their right to register to vote without distinction by reason of race, and that such deprivation has been pursuant to a pattern or practice of discrimination against Negro citizens in the registration processes in George County, Mississippi. “By virtue of and pursuant to the mandate of the United States Court of Appeals for the Fifth Circuit in this cause, it is ordered, adjudged, and decreed by the Court that Defendants Wilbur G, Ward, the State of Mississippi, their agents, officers, employees and successors in office be and each is hereby permanently enjoined from “1. Engaging in any act or practice which involves or results in distinctions based on race or color between Negro citizens and other citizens in the registration for voting process in George County, Mississippi. “2. Determining the qualifications of citizens in George County, Mississsippi in any manner or by any procedure different from or more stringent than the following which have heretofore been used by registrars of George County and their agents in determining the qualifications of white applicants: “(a) He is a citizen and is or will be 21 years of age or older at the time of the next election; “(b) He, at the time of the next election, has or will have resided in the State two years and in the election district in which he intends to vote one year; “(c) He embraces the duties and obligations of citizenship as demonstrated by his willingness to take and sign the oath to bear allegiance to the Constitution of the United States and the State of Mississippi; provided, however, that any errors or omissions in filling out or signing the oath on the application form shall not be a basis for rejection, except that an applicant may be rejected if he refuses to sign the oath (or affirmation) after being specifically requested to sign the oath and being shown by the registrar or his agent where to sign; “(d) He is not disqualified by reason of conviction of a disqualifying crime, insanity or idiocy; “(e) He is able to demonstrate a reasonable ability to read and write by completion of Questions 1-18 of the application form with assistance by the registrar or his agents, as needed, and as has heretofore been given to white registrants; provided, however, the section of the Mississippi Constitution to be copied shall be selected by lot but in no event shall an applicant be required to copy any section which exceeds four lines as printed in the Mississippi Constitution, Mississippi Code of 1942; Provided further that no applicant shall be rejected for an error or omission in his application which is not material in determining whether the applicant meets the substantive requirements set out in paragraph 2(a), (b), (c), and (d); nor shall any applicant be rejected for any other error or omission relating to his substantive qualifications as set forth in -paragraph 2(a), (b), (c), and (d) in his application unless such error or omission has been specifically pointed out and explained to him by the registrar or his agent and the applicant refuses to supply the requested information. “The provisions of this paragraph (2) shall remain in full force and effect until such time as: “(a) The proper local officials of George County, Mississippi, order an entirely new registration of all voters in George County. No such registration shall take place, however, until the officials conducting the registration shall notify all of the parties to this suit of the requirements, standards, and procedures to be used for such reregistration by the filing of a petition or motion, and until a hearing can be held by this Court and findings made that the requirements, standards and procedures to be used insure that such reregistration will comply fully with the Constitution and laws of the United States and the valid constitutional provisions and laws of the State of Mississippi and that no discrimination by reason of race or color will be made in the administration of the registration procedures in said new registration; In the event of such a new registration, each applicant shall be subjected to the same procedures and be required to meet the same standards as every other applicant without regard to whether or when he had been previously registered to vote; or (b) It has been shown to the satisfaction of this Court that the effect of the pattern or practice of discrimination against Negroes seeking to register to vote in George County have been overcome. No such showing, however, may be made to this Court until after one year from the entry of this judgment. Any modification of the requirements of this paragraph (2) shall be consistent with the provisions of § 101(a) of the Civil Rights Act of 1964, and any amendment thereto. “3. It is further ordered that defendant Wilbur G. Ward, his agents, employees, and successors, in conducting registration of voters in George County, Mississippi, are enjoined and ordered to: a. Afford each applicant for registration an opportunity to apply and complete the application form whether either the registrar or deputy registrar is present; u “b. Advise each applicant, when he or she applies, whether the applicant is accepted or rejected; if accepted, the applicant must be registered at that time; If rejected the applicant must be informed of the reason or reasons for his rejection and must be advised of his right to apply directly to this Court to be registered as provided in paragraph (4) hereof. “c. Receive and process each applicant as expeditiously as possible to the extent that the physical facilities of the registration office permit but in no case less than three applicants at one time and in no case refuse to process fewer than three applications at one time. The office of the registrar shall be open during the office hours observed by defendant Ward in his capacity as the clerk of the courts of George County for registration from Monday through Friday of each week except on holidays during the twelve month period following the entry of this order. “4. Any applicant for registration hereafter rejected or not given the opportunity to apply by the defendant Ward, his agents, employees, or successors, may in accordance with 42 U.S.C. 1971 (e) apply to this, court, or to a voting referee to be appointed by and in the discretion, of this court no more than 20 days after receipt by the court of the first application, to have his qualifications determined. The court or such referee shall register all such applicants who meet the standards established in this order. “5. It is further ordered that the defendant Ward, his agents, employees, and successors in office shall file a written report with the clerk of this Court and shall mail a copy thereof to the Plaintiff’s attorneys on or before the fifth day of each month. Said reports shall contain the name and race of each applicant for registration from the previous monthly period, the date of the application, the action taken on the application, and if the applicant is rejected, the specific reason or reasons for rejecting the application. The first of such reports shall be submitted on the fifth day of the month following the date of this order and shall cover and include the aforementioned information for the period from the date of the last application form, presented at the trial of this case on January 27 and 28, 1964, through the month immediately preceding the issuance of the first report: Provided however that defendant Ward shall be allowed twenty days from the date hereof to file the first report in the event twenty days would not be available otherwise under the provisions of this paragraph. “6. The defendant Ward, his deputies, agents, and successors in office shall, until further order of this Court, make the registration records of Getirge County, Mississippi available to attorneys or agents of the United States at any and all reasonable times in the circuit clerk’s office in Lucedale for the purpose of inspection, copying, and photographing. “7. Jurisdiction is retained of this cause for all purposes and especially for the purpose of issuing any and all additional orders as may become necessary or appropriate for the purposes of modifying and/or enforcing this order. “8. Costs in this Court are awarded to plaintiff.” Reversed and remanded for further proceedings not inconsistent herewith. . These facts should he considered in the light of the progressively more onerous requirements for registration under the Mississippi law. See United States v. Duke, 5 Cir., 1964, 332 F.2d 759, for a summary of these requirements. The facts of this case demonstrate that Negro applicants have made little progress toward registration whatever the requirements. . In pertinent part: “* * * Whenever, in a proceeding instituted under this subsection any official of a State or subdivision thereof is alleged to have committed any act or practice constituting a deprivation of any right or privilege secured by subsection (a) of this section, the act or practice shall also be deemed that of the State and the State may be joined as a party defendant and, if, prior to the institution of such proceeding, such ofiicial has resigned or has been relieved of his ofiice and no successor has assumed such oflice, the proceeding may be instituted against the State.” 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:
sc_jurisdiction	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. ELI LILLY & CO. v. MEDTRONIC, INC. No. 89-243. Argued February 26, 1990 Decided June 18, 1990 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Blackmun, and Stevens, JJ., joined. Kennedy, J., filed a dissenting opinion, in which White, J., joined, post, p. 679. O’Connor, J., took no part in the consideration or decision of the case. Timothy J. Malloy argued the cause for petitioner. With him on the briefs were Gregory J. Vogler, Lawrence M. Jarvis, and Edward P. Gray. Arthur R. Miller argued the cause for respondent. With him on the brief were Ronald E. Lund, John F. Lynch, and W. Bryan Farney. Briefs of amici curiae urging reversal were filed for the Industrial Biotechnology Association by Stephan E. Lawton; for Intellectual Property Owners, Inc., by Donald W. Banner and Herbert C. Wamsley; for Neuromedical Technologies, Inc., by John R. Feather; for Procter & Gamble Co. by Ronald L. Hemingway and Richard C. Witte; and for Zimmer, Inc., by Donald O. Beers, Barbara J. Delaney, Timothy Wendt, and Paul David Schoenle. Briefs of amici curiae urging affirmance were filed for the Commonwealth of Pennsylvania et al. by the Attorneys General for their respective States as follows: Ernest D. Preate, Jr., of Pennsylvania, Mary Sue Terry of Virginia, Don Siegelman of Alabama, John Steven Clark of Arkansas, Charles M. Oberly III of Delaware, Warren Price III of Hawaii, Neil F. Hartigan of Illinois, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Brian McKay of Nevada, Lacy H. Thornburg of North Carolina, James E. O’Neil of Rhode Island, T. Travis Medlock of South Carolina, Roger A. Tellinghuisen of South Dakota, R. Paul Van Dam of Utah, Jeffrey L. Amestoy of Vermont, Kenneth O. Eikenberry of Washington, Roger W. Tompkins II of West Virginia, and Hubert H. Humphrey III of Minnesota; for the American Association of Retired Persons by Jamie S. Gorelick and Jonathan B. Sallet; for Carbon Implants Inc. by Michael M. Phillips; for Cook Group Inc. by Charles R. Reeves; for Intermedies, Inc., by John R. Merkling; for Teletronics, Inc., by Michael I. Rackman and William C. Nealon; for the University of Minnesota et al. by William P. Donahue; for Ventritex, Inc., by George H. Gerstman; and for Dr. Gust H. Bardy by David L. Garrison. Briefs of amici curiae were filed for Paralyzed Veterans of America by Charles L. Gholz, Jeffrey H. Kaufman, and Robert L. Nelson; for Pfizer Hospital Products Group, Inc., by Rudolf E. Hutz; and for Dr. Denton Cooley by Margaret E. Anderson. Justice Scalia delivered the opinion of the Court. This case presents the question whether 35 U. S. C. § 271(e)(1) (1982 ed., Supp II) renders activities that would otherwise constitute patent infringement noninfringing if they are undertaken for the purpose of developing and submitting to the Food and Drug Administration (FDA) information necessary to obtain marketing approval for a medical device under § 515 of the Federal Food, Drug, and Cosmetic Act (FDCA), 90 Stat. 552, 21 U. S. C. § 360e. I In 1983, pursuant to 28 U. S. C. § 1338(a), the predecessor-in-interest of petitioner Eli Lilly & Co. filed an action against respondent Medtronic, Inc., in the United States District Court for the Eastern District of Pennsylvania to enjoin respondent’s testing and marketing of an implantable cardiac defibrillator, a medical device used in the treatment of heart patients. Petitioner claimed that respondent’s actions infringed its exclusive rights under United States Patent No. Re 27,757 and United States Patent No. 3,942,536. Respondent sought to defend against the suit on the ground that its activities were “reasonably related to the development and submission of information under” the FDCA, and thus exempt from a finding of infringement under 35 U. S. C. § 271(e)(1) (1982 ed., Supp. II). The District Court rejected this argument, concluding that the exemption does not apply to the development and submission of information relating to medical devices. Following a jury trial, the jury returned a verdict for petitioner on infringement of the first patent, and the court directed a verdict for petitioner on infringement of the second patent. The court entered judgment for petitioner and issued a permanent injunction against infringement of both patents. On appeal, the Court of Appeals for the Federal Circuit reversed, holding that by virtue of § 271(e)(1) respondent’s activities could not constitute infringement if they had been undertaken to develop information reasonably related to the development and submission of information necessary to obtain regulatory approval under the FDCA. It remanded for the District Court to determine whether in fact that condition had been met. 872 F. 2d 402 (1989). We granted certiorari. 493 U. S. 889 (1989). II In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (1984 Act), 98 Stat. 1585, which amended the FDCA and the patent laws in several important respects. The issue in this case concerns the proper interpretation of a portion of § 202 of the 1984 Act, codified at 35 U. S. C. § 271(e)(1). That paragraph, as originally enacted, provided: “It shall not be an act of infringement to make, use, or sell a patented invention (other than a new animal drug or veterinary biological product (as those terms are used in the Federal Food, Drug, and Cosmetic Act and the Act of March 4, 1913)) solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs.” 35 U. S. C. § 271(e)(1) (1982 ed., Supp. II). The parties dispute whether this provision exempts from infringement the use of patented inventions to develop and submit information for marketing approval of medical devices under the FDCA. A The phrase “patented invention” in § 271(e)(1) is defined to include all inventions, not drug-related inventions alone. See 35 U. S. C. § 100(a) (“When used in this title unless the context otherwise indicates . . . [t]he term ‘invention’ means invention or discovery”). The core of the present controversy is that petitioner interprets the statutory phrase, “a Federal law which regulates the manufacture, use, or sale of drugs,” to refer only to those individual provisions of federal law that regulate drugs, whereas respondent interprets it to refer to the entirety of any Act (including, of course, the FDCA) at least some of whose provisions regulate drugs. If petitioner is correct, only such provisions of the FDCA as § 505, 52 Stat. 1052, as amended, 21 U. S. C. § 355, governing premarket approval of new drugs, are covered by § 271 (e)(1), and respondent’s submission of information under 21 U. S. C. § 360e, governing premarket approval of medical devices, would not be a noninfringing use. On the basis of the words alone, respondent’s interpretation seems preferable. The phrase “a Federal law” can be used to refer to an isolated statutory section—one might say, for example, that the judicial review provision of the Administrative Procedure Act, 5 U. S. C. § 706, is “a Federal law.” The phrase is also used, however, to refer to an entire Act. The Constitution, for example, provides that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States.” U. S. Const., Art. I, § 7, cl. 2 (emphasis added). And the United States Code provides that “[w]henever a bill. . . becomes a law or takes effect, it shall forthwith be received by the Archivist of the United States from the President.” 1 U. S. C. § 106a (emphasis added). This latter usage, which is probably the more common one, seems also the more natural in the present context. If § 271(e)(1) referred to “a Federal law which pertains to the manufacture, use, or sale of drugs” it might be more reasonable to think that an individual provision was referred to. But the phrase “a Federal law which regulates the manufacture, use, or sale of drugs” more naturally summons up the image of an entire statutory scheme of regulation. The portion of § 271(e)(1) that immediately precedes the words “a Federal law” likewise seems more compatible with reference to an entire Act. It refers to “the development and submission of information under a Federal law” (emphasis added). It would be more common, if a single section rather than an entire scheme were referred to, to speak of “the development and submission of information pursuant to a Federal law,” or perhaps “in compliance with a Federal law.” Taking the action “under a Federal law” suggests taking it in furtherance of or compliance with a comprehensive scheme of regulation. Finally, and perhaps most persuasively, the fact that § 202 of the 1984 Act (which established § 271(e)(1)) used the word “law” in its broader sense is strongly suggested by the fact that the immediately preceding—and, as we shall see, closely related—section of the 1984 Act, when it meant to refer to a particular provision of law rather than an entire Act, referred to “the first permitted commercial marketing or use of the product under the provision of law.” § 201, 98 Stat. 1598, 35 U. S. C. § 156(a)(5)(A) (emphasis added). The centrally important distinction in this legislation (from the standpoint of the commercial interests affected) is not between applications for drug approval and applications for device approval, but between patents relating to drugs and patents relating to devices. If only the former patents were meant to be included, there were available such infinitely more clear and simple ways of expressing that intent that it is hard to believe the convoluted manner petitioner suggests was employed would have been selected. The provision might have read, for example, “It shall not be an act of infringement to make, use, or sell a patented drug invention . . . solely for uses reasonably related to the development and submission of information required, as a condition of manufacture, use, or sale, by Federal law.” Petitioner contends that the terms “patented drug,” or “drug invention” (or, presumably, “patented drug invention”) would have been “potentially unclear” as to whether they covered only patents for drug products, or patents for drug composition and drug use as well. Brief for Petitioner 22. If that had been the concern, however, surely it would have been clearer and more natural to expand the phrase constituting the object of the sentence to “patented invention for drug product, drug composition, or drug use” than to bring in such a limitation indirectly by merely limiting the laws under which the information is submitted to drug regulation laws. On the other side of the ledger, however, one must admit that while the provision more naturally means what respondent suggests, it is somewhat difficult to understand why anyone would want it to mean that. Why should the touchstone of noninfringement be whether the use is related to the development and submission of information under a provision that happens to be included within an Act that, in any of its provisions, not necessarily the one at issue, regulates drugs? The first response is that this was a shorthand reference to the pertinent provisions Congress was aware of, all of which happened to be included in Acts that regulated drugs. But since it is conceded that all those pertinent provisions were contained within only two Acts (the FDCA and the Public Health Service Act (PHS Act), 58 Stat. 682, as amended, 42 U. S. C. § 201 et seq.), that is not much of a time-saving shorthand. The only rejoinder can be that Congress anticipated future regulatory-submission requirements that it would want to be covered, which might not be included in the FDCA or the PHS Act but would surely (or probably) be included in another law that regulates drugs. That is not terribly convincing. On the other hand, this same awkwardness, in miniature, also inheres in petitioner’s interpretation, unless one gives “under a Federal law” a meaning it simply will not bear. That is to say, if one interprets the phrase to refer to only a single section or even subsection of federal law, it is hard to understand why the fact that that section or subsection happens to regulate drugs should bring within § 271(e)(1) other products that it also regulates; and it does not seem within the range of permissible meaning to interpret “a Federal law” to mean only isolated portions of a single section or subsection. The answer to this, presumably, is that Congress would not expect two products to be dealt with in the same section or subsection—but that also is not terribly convincing. As far as the text is concerned, therefore, we conclude that we have before us a provision that somewhat more naturally reads as the Court of Appeals determined, but that is not plainly comprehensible on anyone’s view. Both parties seek to enlist legislative history in support of their interpretation, but that sheds no clear light. We think the Court of Appeals’ interpretation is confirmed, however, by the structure of the 1984 Act taken as a whole. B Under federal law, a patent “grant[s] to the patentee, his heirs or assigns, for the term of seventeen years, . . . the right to exclude others from making, using, or selling the invention throughout the United States.” 35 U. S. C. § 154. Except as otherwise provided, “whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.” § 271(a). The parties agree that the 1984 Act was designed to respond to two unintended distortions of the 17-year patent term produced by the requirement that certain products must receive premarket regulatory approval. First, the holder of a patent relating to such products would as a practical matter not be able to reap any financial rewards during the early years of the term. When an inventor makes a potentially useful discovery, he ordinarily protects it by applying for a patent at once. Thus, if the discovery relates to a product that cannot be marketed without substantial testing and regulatory approval, the “clock” on his patent term will be running even though he is not yet able to derive any profit from the invention. The second distortion occurred at the other end of the patent term. In 1984, the Court of Appeals for the Federal Circuit decided that the manufacture, use, or sale of a patented invention during the term of the patent constituted an act of infringement, see § 271(a), even if it was for the sole purpose of conducting tests and developing information necessary to apply for regulatory approval. See Roche Products, Inc. v. Bolar Pharmaceutical Co., 733 F. 2d 858, cert. denied, 469 U. S. 856 (1984). Since that activity could not be commenced by those who planned to compete with the patentee until expiration of the entire patent term, the patentee’s de facto monopoly would continue for an often substantial period until regulatory approval was obtained. In other words, the combined effect of the patent law and the premarket regulatory approval requirement was to create an effective extension of the patent term. The 1984 Act sought to eliminate this distortion from both ends of the patent period. Section 201 of the Act established a patent-term extension for patents relating to certain products that were subject to lengthy regulatory delays and could not be marketed prior to regulatory approval. The eligible products were described as follows: “(1) The term ‘product’ means: “(A) A human drug product. “(B) Any medical device, food additive, or color additive subject to regulation under the Federal Food, Drug, and Cosmetic Act. “(2) The term ‘human drug product’ means the active ingredient of a new drug, antibiotic drug, or human biological product (as those terms are used in the Federal Food, Drug, and Cosmetic Act and the Public Health Service Act) including any salt or ester of the active ingredient, as a single entity or in combination with another active ingredient.” 35 U. S. C. § 156(f). Section 201 provides that patents relating to these products can be extended up to five years if, inter alia, the product was “subject to a regulatory review period before its commercial marketing or use,” and “the permission for the commercial marketing or use of the product after such regulatory review period [was] the first permitted commercial marketing or use of the product under the provision of law under which such regulatory review period occurred.” 35 U. S. C. § 156(a). The distortion at the other end of the patent period was addressed by § 202 of the Act. That added to the provision prohibiting patent infringement, 35 U. S. C. § 271, the paragraph at issue here, establishing that “[i]t shall not be an act of infringement to make, use, or sell a patented invention . . . solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs.” § 271(e)(1). This allows competitors, prior to the expiration of a patent, to engage in otherwise infringing activities necessary to obtain regulatory approval. Under respondent’s interpretation, there may be some relatively rare situations in which a patentee will obtain the advantage of the § 201 extension but not suffer the disadvantage of the § 202 noninfringement provision, and others in which he will suffer the disadvantage without the benefit. Under petitioner’s interpretation, however, that sort of disequilibrium becomes the general rule for patents relating to all products (other than drugs) named in § 201 and subject to premarket approval under the FDCA. Not only medical devices, but also food additives and color additives, since they are specifically named in § 201, see 35 U. S. C. § 156(f), receive the patent-term extension; but since the specific provisions requiring regulatory approval for them, though included in the FDCA, are not provisions requiring regulatory approval for drugs, they are (on petitioner’s view) not subject to the noninfringement provision of § 271(e)(1). It seems most implausible to us that Congress, being demonstrably aware of the dual distorting effects of regulatory approval requirements in this entire area—dual distorting effects that were roughly offsetting, the disadvantage at the beginning of the term producing a more or less corresponding advantage at the end of the term—should choose to address both those distortions only for drug products; and for other products named in § 201 should enact provisions which not only leave in place an anticompetitive restriction at the end of the monopoly term but simultaneously expand the monopoly term itself, thereby not only failing to eliminate but positively aggravating distortion of the 17-year patent protection. It would take strong evidence to persuade us that this is what Congress wrought, and there is no such evidence here. Apart from the reason of the matter, there are textual indications that §§ 201 and 202 are meant generally to be complementary. That explains, for example, § 202's exception for “a new animal drug or veterinary biological product (as those terms are used in the Federal Food, Drug, and Cosmetic Act and the Act of March 4, 1913).” 35 U. S. C. § 271(e)(1). Although new animal drugs and veterinary biological products are subject to premarket regulatory licensing and approval under the FDCA, see 21 U. S. C. § 360b (new animal drugs), and the Act of March 4, 1913, see 21 U. S. C. §§ 151, 154 (veterinary biological products)—each “a Federal law which regulates the manufacture, use, or sale of drugs”—neither product was included in the patent-term extension provision of § 201. They therefore were excepted from § 202 as well. Interpreting § 271(e)(1) as the Court of Appeals did here appears to create a perfect “product” fit between the two sections. All of the products eligible for a patent term extension under § 201 are subject to § 202, since all of them— medical devices, food additives, color additives, new drugs, antibiotic drugs, and human biological products—are subject to premarket approval under various provisions of the FDCA, see 21 U. S. C. § 360e (medical devices); § 348 (food additives); § 376 (color additives); § 355 (new drugs); § 357 (antibiotic drugs), or under the PHS Act, see 42 U. S. C. § 262 (human biological products). And the products subject to premarket approval under the FDCA and the Act of March 4, 1913, that are not made eligible for a patent term extension under § 201—new animal drugs and veterinary biological products—are excluded from § 202 as well. III According to petitioner, “[t]he argument for a broad construction of Section 271(e)(1) is refuted by the companion Sections (e)(2) and (e)(4).” Brief for Petitioner 17. The latter provide: “(2) It shall be an act of infringement to submit an application under section 505(j) of the Federal Food, Drug, and Cosmetic Act or described in section 505(b)(2) of such Act for a drug claimed in a patent or the use of which is claimed in a patent, if the purpose of such submission is to obtain approval under such Act to engage in the commercial manufacture, use, or sale of a drug claimed in a patent or the use of which is claimed in a patent before the expiration of such patent. “(4) For an act of infringement described in paragraph (2)- “(A) the court shall order the effective date of any approval of the drug involved in the infringement to be a date which is not earlier than the date of the expiration of the patent which has been infringed, “(B) injunctive relief may be granted against an infringer to prevent the commercial manufacture, use, or sale of an approved drug, and “(C) damages or other monetary relief may be awarded against an infringer only if there has been commercial manufacture, use, or sale of an approved drug. “The remedies prescribed by subparagraphs (A), (B), and (C) are the only remedies which may be granted by a court for an act of infringement described in paragraph (2), except that a court may award attorney fees under section 285.” 35 U. S. C. §§ 271(e)(2), (4). Petitioner points out that the protections afforded by these provisions are conferred exclusively on the holders of drug patents. They would, petitioner contends, have been conferred upon the holders of other patents if Congress had intended the infringement exemption of § 271(e)(1) to apply to them as well. That is not so. The function of the paragraphs in question is to define a new (and somewhat artificial) act of infringement for a very limited and technical purpose that relates only to certain drug applications. As an additional means of eliminating the de facto extension at the end of the patent term in the case of drugs, and to enable new drugs to be marketed more cheaply and quickly, § 101 of the 1984 Act amended § 505 of the FDCA, 21 U. S. C. § 355, to authorize abbreviated new drug applications (ANDA’s), which would substantially shorten the time and effort needed to obtain marketing approval. An ANDA may be filed for a generic drug that is the same as a so-called “pioneer drug” previously approved, see § 355(j)(2)(A), or that differs from the pioneer drug in specified ways, see § 355(j)(2)(C). The ANDA applicant can substitute bioequivalence data for the extensive animal and human studies of safety and effectiveness that must accompany a full new drug application. Compare § 355(j)(2) (A)(iv) with § 355(b)(1). In addition, § 103 of the 1984 Act amended § 505(b) of the FDCA, § 355(b), to permit submission of a so-called paper new drug application (paper NDA), an application that relies on published literature to satisfy the requirement of animal and human studies demonstrating safety and effectiveness. See § 355(b)(2). Like ANDA’s, paper NDA’s permit an applicant seeking approval of a generic drug to avoid the costly and time-consuming studies required for a pioneer drug. These abbreviated drug-application provisions incorporated an important new mechanism designed to guard against infringement of patents relating to pioneer drugs. Pioneer drug applicants are required to file with the FDA the number and expiration date of any patent which claims the drug that is the subject of the application, or a method of using such drug. See § 355(b)(1). ANDA’s and paper NDA’s are required to contain one of four certifications with respect to each patent named in the pioneer drug application: (1) “that such patent information has not been filed,” (2) “that such patent has expired,” (3) “the date on which such patent will expire,” or (4) “that such patent is invalid or will not be infringed by the manufacture, use, or sale of the new drug for which the application is submitted.” §§ 355(b)(2)(A), 355(j)(2)(A)(vii). This certification is significant, in that it determines the date on which approval of an ANDA or paper NDA can be made effective, and hence the date on which commercial marketing may commence. If the applicant makes either the first or second certification, approval can be made effective immediately. See §§ 355(c)(3)(A), 355(j)(4)(B)(i). If the applicant makes the third certification, approval of the application can be made effective as of the date the patent expires. See §§ 355(c)(3)(B), 355(j)(4)(B)(ii). If the applicant makes the fourth certification, however, the effective date must depend on the outcome of further events triggered by the Act. An applicant who makes the fourth certification is required to give notice to the holder of the patent alleged to be invalid or not infringed, stating that an application has been filed seeking approval to engage in the commercial manufacture, use, or sale of the drug before the expiration of the patent, and setting forth a detailed statement of the factual and legal basis for the applicant’s opinion that the patent is not valid or will not be infringed. See §§ 355(b)(3)(B), 355(j)(2)(B)(ii). Approval of an ANDA or paper NDA containing the fourth certification may become effective immediately only if the patent owner has not initiated a lawsuit for infringement within 45 days of receiving notice of the certification. If the owner brings such a suit, then approval may not be made effective until the court rules that the patent is not infringed or until the expiration of (in general) 30 months, whichever first occurs. See §§ 355(c)(3)(C), 355(j)(4)(B)(iii). This scheme will not work, of course, if the holder of the patent pertaining to the pioneer drug is disabled from establishing in court that there has been an act of infringement. And that was precisely the disability that the new 35 U. S. C. § 271(e)(1) imposed with regard to use of his patented invention only for the purpose of obtaining premarketing approval. Thus, an act of infringement had to be created for these ANDA and paper NDA proceedings. That is what is achieved by § 271 (e)(2)—the creation of a highly artificial act of infringement that consists of submitting an ANDA or a paper NDA containing the fourth type of certification that is in error as to whether commercial manufacture, use, or sale of the new drug (none of which, of course, has actually occurred) violates the relevant patent. Not only is the defined act of infringement artificial, so are the specified consequences, as set forth in subsection (e)(4). Monetary damages are permitted only if there has been “commercial manufacture, use, or sale.” § 271(e)(4)(C). Quite obviously, the purpose of subsections (e)(2) and (e)(4) is to enable the judicial adjudication upon which the ANDA and paper NDA schemes depend. It is wholly to be expected, therefore, that these provisions would apply only to applications under the sections establishing those schemes—which (entirely incidentally, for present purposes) happen to be sections that relate only to drugs and not to other products. * * * No interpretation we have been able to imagine can transform § 271(e)(1) into an elegant piece of statutory draftsmanship. To construe it as the Court of Appeals decided, one must posit a good deal of legislative imprecision; but to construe it as petitioner would, one must posit that and an implausible substantive intent as well. The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. So ordered. Justice O’Connor took no part in the consideration or decision of this case. Unless otherwise specified, references to sections of the United States Code are to those sections as they existed upon the effective date of the 1984 Act. Petitioner’s principal argument is that the legislative history of § 202 mentions only drugs—which is quite different, of course, from its saying (as it does not) that only drugs are included. “It is not the law that a statute can have no effects which are not explicitly mentioned in its legislative history . . . .” Pittston Coal Group v. Sebben, 488 U. S. 106, 115 (1988). As respondent notes, even the legislative history of § 201—whose text explicitly includes devices—contains only scant references to devices. Petitioner suggests that it was “the 1984 Roche decision which prompted enactment of [§ 202],” Brief for Petitioner 20, n. 13, which should therefore be regarded as quite independent of the simultaneously enacted patent-term extension of § 201. Undoubtedly the decision in Roche prompted the proposal of § 202; but whether that alone accounted for its enactment is quite a different question. It seems probable that Congress—for the reasons we discuss in text—would have regarded § 201 and § 202 as related parts of a single legislative package, as we do. We cannot readily imagine such situations (and petitioner has not described any), except where there is good enough reason for the difference. Petitioner states that disequilibrium of this sort will often occur because the § 271(e)(1) noninfringement provision applies “whether the patent term is extended or not,” and even with respect to “patents which cannot qualify for a term extension.” Reply Brief for Petitioner 11. But if the patent term is not extended only because the patentee does not apply, he surely has no cause for complaint. And the major reason relevant patents will not qualify for the term extension is that they pertain to “follow-on” drug products rather than “pioneer” drug products, see §§ 156(a)(5)(A), 156 (f)(2); Fisons pic v. Quigg, 876 F. 2d 99 (CA Fed. 1989). For these, however, the abbreviated regulatory approval procedures established by Title I of the 1984 Act, 98 Stat. 1585, see 21 U. S. C. §§ 355(b)(2), (j), eliminate substantial regulatory delay at the outset of the patent term and thus eliminate the justification for the § 156 extension. Petitioner argues that there was good reason for Congress to establish an infringement exemption with respect to drugs but not devices, since testing of the latter does much greater economic harm to the paten-tee. Devices, petitioner contends, are much more expensive than drugs ($17,000 apiece for respondent’s allegedly infringing defibrillators); and many have only a small number of potential customers, who will purchase only a single device each, so that depleting the market through testing may do substantial harm. Brief for Petitioner 30-31. These concerns, however, apply with respect to certain drugs as well. According to one source, a year’s dosage of Cyclosporine (used to suppress rejection of new organs) costs from $5,000 to $7,000; of AZT (used to treat AIDS) $8,000; of Monoclate (used to speed blood clotting in hemophiliacs) $25,000; and of Growth Hormone (used to treat dwarfism) $8,000 to $30,000. A. Pollack, The Troubling Cost of Drugs That Offer Hope, N. Y. Times, Feb. 9, 1988, p. A1, col. 3. Another new drug, Tissue Plasminogen Activator, used in the treatment of heart attacks to dissolve blood clots, costs $2,200 per dose and is prescribed for only a single dose. Ibid. Moreover, even if the factors petitioner mentions could explain the omission from § 271(e)(1) of medical devices, they could not explain the omission of food additives and color additives. It is true that § 202, if interpreted to apply to all products regulated by the FDCA and other drug-regulating statutes, has a product coverage that includes other products, in addition to new animal drugs and veterinary biological products, not numbered among the specifically named products in § 201—for example, food, infant formulas, cosmetics, pesticides, and vitamins. But for the § 202 exemption to be applicable, the patent use must be “reasonably related to the development and submission of information under” the relevant law. New animal drugs and veterinary biological products appear to be the only additional products covered by drug-regulating statutes for which the requirement of premarket approval—and hence the need for “development and submission of information”—existed. With respect to food, infant formulas, cosmetics, and pesticides, for example, the FDCA merely established generally applicable standards that had to be met. See, e. g., Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:
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). In re Gerald David GLENN and Janice Sue Glenn, Debtors, The FEDERAL LAND BANK OF LOUISVILLE, Creditor-Appellant, v. Gerald David GLENN and Janice Sue Glenn, (82-3821) Debtors-Appellees. In re Edward J. PIGLOSKI and Mary L. Pigloski, Debtors, Edward J. PIGLOSKI and Mary L. Pigloski, Plaintiffs-Appellants, v. Maxine WYNN and Manor Mortgage Company, (83-1316) Defendants-Appellees. In re Ralph MILLER, Debtor, FIRST FEDERAL OF MICHIGAN, Defendant-Appellant, v. Ralph Henry MILLER, (83-1585) Plaintiff-Appellee. Nos. 82-3821, 83-1316 and 83-1585. United States Court of Appeals, Sixth Circuit. Argued April 12, 1984. Decided April 16, 1985. Rehearing and Rehearing En Banc Denied in Nos. 83-1316 and 83-1585 June 3, 1985. Stephen R. Buchenroth (argued), Vorys, Sater, Seymour & Pease, Columbus, Ohio, for creditor-appellant in No. 82-3821. Robert A. Goering (argued) Wikle & Goering, Cincinnati, Ohio, for debtors-appellees in No. 82-3821. Mary Ann Zito (argued) UAW Legal Services Plan, Detroit, Mich., for plaintiffs-appellants in No. 83-1316. Edward R. Barton (argued), Allegan, Mich., amicus curiae. Ronald T. Barrows, St. Clair Shores, Mich., for defendants-appellees in No. 83-1316. Robert H. Skilton, III, Patrick E. Mears (argued), John D. Dunn, Grand Rapids, Mich., for amicus curiae (Appellees). W. Stanley Fambrough (argued), Detroit, Mich., for defendant-appellant in No. 83-1585. Matthew J. Mason, Detroit, Mich., for plaintiff-appellee in No. 83-1585. Edward R. Barton (argued), Allegan, Mich., amicus curiae. Before ENGEL and KRUPANSKY, Circuit Judges, WEICK, Senior Circuit Judge. ENGEL, Circuit Judge. These three appeals raise similar questions about the point in the foreclosure process at which a Chapter 13 debtor loses the right to cure a default on a real estate mortgage on his principal residence. In each case, the debtor gave a mortgage on real estate that was subject to foreclosure proceedings. In In re Gerald David Glenn, No. 82-3821, the debtors filed their Chapter 13 petition after the mortgagee had obtained a foreclosure judgment but before the property was sold. In In re Ralph Miller, No. 83-1585, and In re Edward J. Pigloski, No. 83-1316, the debtors filed their petitions after the properties had been sold at foreclosure sales but before the statutory redemption periods had run. The debtors in all three cases seek to protect their interests in the real estate by paying off any arrearages through their Chapter 13 plans and resuming the regular mortgage payments. The mortgagee in each case has objected that this treatment is contrary to the provisions of 11 U.S.C. § 1322(b). Each appeal also raises at least one additional issue. In Glenn, the debtors argue that, pursuant to 11 U.S.C. § 1322(b)(2), their Chapter 13 plan may modify the rights of their creditor because the creditor’s security interest is in a parcel that includes not only their principal residence, but also fifty acres of adjoining farmland. Should they not be permitted to reinstate the terms of their mortgages, the debtors in Miller and Pigloski seek a ruling that would toll the running of the statutory redemption periods for the duration of their Chapter 13 plans. The Pigloskis also claim that they should be allowed to spread the payment of the redemption amount over the entire length of their Chapter 13 plan while the debtor in Miller argues that the expiration of the redemption period following the foreclosure sale would constitute a preferential transfer that may be avoided under 11 U.S.C. § 547(b). I. Gerald David and Janice Sue Glenn (82-3821) In October 1978 the Glenns bought their home and the fifty acres of land on which it is located in Fayetteville, Ohio. They made a $20,000.00 down payment and gave a first mortgage promissory note to the Federal Land Bank of Louisville to finance the balance of the purchase price. The Glenns also delivered a mortgage deed to the bank. The note required the payment of $2850.00 every six months and contained an acceleration clause giving the bank the option to declare the entire debt due and payable immediately should the Glenns fail to make any payments. The Glenns subsequently failed to make some of the mortgage payments, and the bank accelerated the debt. When the Glenns failed to pay the accelerated amount, the bank commenced foreclosure proceedings. On December 18, 1981, the Court of Common Pleas of Brown County, Ohio entered a foreclosure judgment against the Glenns for $51,991.95. Later that same day, the Glenns filed their Chapter 13 petition with the bankruptcy court. Under the terms of their Chapter 13 plan, the Glenns proposed to pay the bank the arrearage on the mortgage over a period of twenty-one months while maintaining current payments outside the plan under the original terms of the note. The bank objected to the plan, arguing that the note and mortgage had been merged and reduced to judgment and that the Glenns currently owed not just the amount they were in arrears but the entire judgment amount. The bankruptcy court overruled the bank’s objection and confirmed the plan. Relying upon the rationale of the Second Circuit in In re Taddeo, 685 F.2d 24 (2d Cir.1982), the court held that 11 U.S.C. § 1322(b)(5) permitted the Glenns to “deaecelerate” their mortgage and reinstate the original payment schedule. The parties agreed to a direct appeal to our court pursuant to 28 U.S.C. § 1293(b). Ralph Miller (83-1585) On August 5, 1980, Ralph Miller purchased a house in Detroit, Michigan, subject to an existing first mortgage, dated April 17, 1973, held by First Federal of Michigan. The sale price was $26,500.00, and the balance on the mortgage note was approximately $20,900.00. Following repeated, lengthy lay-offs from his employment, Miller defaulted on the mortgage in 1981. First Federal commenced a foreclosure by advertisement in March 1982, and a sheriff’s sale was held on May 14, 1982. First Federal purchased the property for a bid of the balance owing on the mortgage. On November 2, 1982, before the statutory redemption period expired, Miller filed a Chapter 13 petition and plan. In his plan, Miller proposed to pay the arrearage on the mortgage and to maintain current payments on the note. Miller also moved the bankruptcy court to issue a stay order tolling the redemption period. The bankruptcy court denied the motion, denied confirmation of the plan, and lifted the automatic stay as to First Federal, allowing the mortgagee to pursue eviction. Miller appealed these decisions to the district court, and the parties entered into a stipulation to stay proceedings pending appeal. Judge Thornton reversed the bankruptcy court, holding that 11 U.S.C. § 1322(b)(5) permits a Chapter 13 debtor to set aside a foreclosure sale, pay any arrearage, and reinstate the terms of the mortgage when the petition is filed before the redemption period expires. The parties entered into another stipulation to stay proceedings pending First Federal’s appeal of Judge Thornton’s decision. Edward J. and Mary L. Pigloski (83-1316) In May 1981, Edward and Mary Pigloski sought to refinance their house by entering into a loan agreement arranged by Manor Mortgage Company. The house was encumbered by an existing mortgage of $14,-500.00, which the mortgagee, Standard Federal Savings & Loan Association, had threatened to foreclose. Following the directions of Manor Mortgage Company, the Pigloskis incorporated themselves and signed a wrap-around mortgage and note to Maxine Wynn. The parties dispute the amount owed on the note, and the Pigloskis claim that it is actually usurious. In any event, the Pigloskis failed to make mortgage payments to Maxine Wynn. Mrs. Wynn commenced foreclosure by advertisement under Michigan law in October 1981, and a sheriff’s sale was held on November 20, 1981. On April 30, 1982, before the statutory redemption period expired, the Pigloskis filed a Chapter 13 petition and plan. Under their plan, the Pigloskis proposed to pay, over a period of two and one half years, all the amounts they believed were legally due and owing to Mrs. Wynn. The Pigloskis also filed a motion for a stay order tolling the redemption period. The bankruptcy court eventually held that it had no authority to toll the statutory redemption period. The Pigloskis appealed the decision to the district court. Judge Boyle held that the automatic stay of 11 U.S.C. § 362(a) does not toll the statutory redemption period and that 11 U.S.C. § 105 does not authorize a bankruptcy court to toll the redemption period. Judge Boyle also held that a foreclosure sale extinguishes the mortgage and, as a result, is not subject to cure under section 1322(b)(5). II. 11 U.S.C. § 1322(b) outlines the permissible contents of a wage earner plan under Chapter 13 of the Bankruptcy Code. The relevant portions of that section provide: (b) Subject to subsections (a) and (c) of this section, the plan may— (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; The mortgagees do not dispute that subsection (b)(5) permits a Chapter 13 debtor to cure a default on a long-term mortgage on the debtor’s principal residence. However, they contend that once the long-term debt has been accelerated, or a foreclosure judgment has been obtained, or a foreclosure sale has occurred, the claim is no longer one “on which the last payment is due after the date on which the final payment under the plan is due” and, therefore, is not subject to cure under subsection (b)(5). Moreover, they argue that allowing the debtor to cure the default and reinstate the terms of the mortgage after any of these events would violate the language of subsection (b)(2), which prohibits modification of the rights of holders of claims “secured only by a security interest in real property that is the debtor’s principal residence.” The courts disagree over whether and under what circumstances section 1322(b) allows a cure once a default on a mortgage has triggered acceleration of the debt, a judgment or a sale. The bankruptcy court in In re Ivory, 32 B.R. 788 (Bankr.D.Or. 1983), grouped the differing viewpoints into the following general categories: (1) Courts that hold that a debtor may not cure a default once a mortgage debt has been accelerated: In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); Matter of LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y. 1981); In re Allen, 17 B.R. 119, 8 B.C.D. 945 (Bkrtcy.N.D.Ohio 1981). (2) Courts that hold that a debtor may cure a default where the mortgage debt has been accelerated provided that no foreclosure judgment has been entered: Percy Wilson Mortgage & Finance Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y. 1981). (3) Courts [that] hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 B.C.D. 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla. 1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtey.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 B.C.D. 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a debtor may cure a default where a foreclosure sale has been held provided that the debtor’s right of redemption under state law has not expired: In re Johnson, 29 B.R. 104 (Bkrtcy.S.D.Fla.1983); In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo. 1982); In re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982). 32 B.R. at 790. To the fourth group we add the following recent opinions by the Fifth and Seventh Circuits: Grubbs v. Houston First American Savings Association, 730 F.2d 236 (5th Cir.1984) (en banc) (holding that a debtor may cure a default after acceleration, but expressing no limit on the right); Matter of Clark, 738 F.2d 869 (7th Cir.1984) (holding that a debtor may cure a default after a judgment of foreclosure that does no more than judicially confirm the acceleration Under state law, but expressing no opinion whether the right to cure survives a sale or a judgment of foreclosure in states where the effect of the judgment is different). Most courts agree that section 1322(b)(5) allows the debtor to cure a default when the mortgagee has not yet accelerated the debt, see, e.g., In re Pearson, 10 B.R. at 193; In re Hartford, 7 B.R. 914 (Bankr.D. Me. 1981), and that the debtor may not reinstate the mortgage if the bankruptcy petition is filed after the state redemption period has expired, see, e.g., In re Ivory, 33 B.R. at 791; In re Thompson, 17 B.R. at 751. The legislative history of section 1322(b) is ambiguous about the scope of the right afforded the debtor to cure a mortgage default. To encourage consumer debtor rehabilitation rather than liquidation, Congress designed Chapter 13 of the Bankruptcy Code to provide greater relief than was available under the former Bankruptcy Act. H.R.Rep. No. 595, 95th Cong., 1st Sess. 116-17 (1977), reprinted in 1978 U.S. Code Cong. & Ad.News 5787, 5963, 6076-78. The House Report further explains the chapter’s general purpose: The purpose of chapter 13 is to enable an individual, under court supervision and protection, to develop and perform under a plan for the repayment of his debts over an extended period. In some cases, the plan will call for full repayment. In others, it may offer creditors a percentage of their claims in full settlement. During the repayment period, creditors may not harrass [sic] the debtor or seek to collect their debts. They must receive payments only under the plan. This protection relieves the debtor from indirect and direct pressures from creditors, and enables him to support himself and his dependents while repaying his creditors at the same time. The benefit to the debtor of developing a plan of repayment under chapter 13, rather than opting for liquidation under chapter 7, is that it permits the debtor to protect his assets. In a liquidation case, the debtor must surrender his nonexempt assets for liquidation and sale by the trustee. Under chapter 13, the debtor may retain his property by agreeing to repay his creditors. Chapter 13 also protects a debtor’s credit standing far better than a straight bankruptcy, because he is viewed by the credit industry as a better risk. In addition, it satisfies many debtors’ desire to avoid the stigma attached to straight bankruptcy and to retain the pride attendant on being able to meet one’s obligations. The benefit to creditors is self-evident: their losses will be significantly less than if their debtors opt for straight bankruptcy. Id. at 118, U.S.Code Cong. & Admin.News 1978, p. 6079. One of the significant specific changes introduced by Congress in the new legislation was to allow modification of the contract rights of secured creditors under a Chapter 13 plan. H.R.Rep., supra, at 124; Bankruptcy Laws Commission’s Report, H.R.Doc. 137, pt. 2, 93rd Cong., 1st Sess. 205 (1973). Nevertheless, it is evident upon examining the final language of section 1322(b)(2) that Congress contemplated a different treatment of debts secured only by mortgages on the debtor’s principal residence. One would think that when trying to liberalize the relief to debtors under Chapter 13, Congress would be particularly solicitous of the individual wage earner’s ability to save his home. However, it is apparent from the language of section 1322(b) that Congress intended to give a preferred status to certain types of home mortgagees and lienholders, a policy which at first blush would seem at odds with the general thrust of the new act. The question naturally arises: why? The legislative history says little in terms of political or social philosophy as such. However, it does reveal that the final language of section 1322(b) evolved from earlier language, incorporated in the bill apparently at the behest of representatives of the mortgage market, that would have prohibited modification of the rights of all creditors whose claims were wholly secured by mortgages on real property. Although the earlier language did not survive, the statute as finally enacted by Congress clearly evidences a concern with the possible effects the new bankruptcy act might have upon the market for homes. If any other policy objective of Congress was adequate to compete against the objective of protecting wage earners generally, it was a policy to encourage the increased production of homes and to encourage private individual ownership of homes as a traditional and important value in American life. Congress had to face the reality that in a relatively free society, market forces and the profit motive play a vital role in determining how investment capital will be employed. Every protection Congress might grant a homeowner at the expense of the holders of security interests on those homes would decrease the attractiveness of home mortgages as investment opportunities. And as home mortgages decrease in attractiveness, the pool of money available for new home construction and finance shrinks. On the other hand, Congress was determined not to depart too far from its expressed policy of making wage earner plans more attractive to debtors, especially as an alternative to full bankruptcy proceedings under Chapter 7. Therefore, the preferred status granted some creditors under section 1322(b)(2) was limited to holders of claims secured only by a security interest in the debtor’s principal residence. No preferential treatment was given debts secured by property in addition to the debt- or’s principal residence. Such debts normally are incurred to make consumer purchases unrelated to the home or to enable the debtor to engage in some form of business adventure. In such circumstances the home is mortgaged not for its own sake, but for other purposes, and often is only one of several forms of security given. In a consumer purchase the creditor may also take a security interest in the goods purchased, or in a business transaction, the value of the home may be an insufficient security and, therefore, form only a part of the security package. Congress granted no extra protection for holders of these types of secured claims, presumably because any impact the bankruptcy laws might have upon them would not seriously affect the money market for home construction or purchase. Furthermore, in sections 1322(b)(3) and (5), which permit the debtor’s Chapter 13 plan to cure defaults, Congress provided no special exceptions for creditors whose claims are secured by a security interest in the debtor’s residence. Congress expressly provided that subsection (b)(5), which allows the debtor to cure any default on mortgages that extended beyond the life of the Chapter 13 plan, is to operate “notwithstanding paragraph (2) of this subsection.” We wish Congress had spoken its specific intent more clearly with respect to cases involving acceleration, judgments, or sales. It did not but instead saw fit to speak only in broad terms. As is so obvious from the broad range of the cited lower court decisions, any particular result often reflects the value judgment of the particular court as to which of the two competing values should predominate, or at least which is more attractive under the specific facts of the case at hand. All courts agree that at some point in the foreclosure process, the right to cure a default is irretrievably lost; however, the statute itself provides no clear cut-off point except that which the courts may see fit to create. The closer that point of finality is to the beginning of the process, the greater is the protection accorded the mortgage holder, and, hence, the more attractive the home mortgage becomes as an investment. Conversely, the further down the line the court can reach to protect the debtor from the consequences of his default, the better the debt- or’s needs are met by the Chapter 13 proceedings, and the more attractive those proceedings become to such debtors. We despair of finding any clear-cut statutory language or legislative history that points unerringly to a construction of the statute that is free from challenge. Each of the cases and each result reached therein is subject to some objection either in theory or in practice. The result we reach here is, therefore, primarily a pragmatic one — one that we believe not only works the least violence to the competing concerns evident in the language of the statute but also one that is most readily capable of use. The event we choose as the cut-off date of the statutory right to cure defaults is the sale of the mortgaged premises. We pick this in preference to a number of other potential points in the progress of events ranging from the date of first default to the day the redemption period expires following sale. We do so for the following reasons, which admittedly may form a large target for criticism: (a) The language of the statute is, to us, plainly a compromise, as we have earlier mentioned. Picking a date between the two extremes, is likewise a compromise of sorts. (b) The sale of the mortgaged property is an event that all forms of foreclosure, however denominated, seem to have in common. Whether foreclosure is by judicial proceeding or by advertisement, and regardless of when original acceleration is deemed to have occurred, the date of sale is a measurable, identifiable event of importance in the relationship of the parties. It is at the heart of realization of the security. (c) Although the purchaser at the sale is frequently the security holder itself, the sale introduces a new element— the change of ownership and, hence, the change of expectations — into the relationship which previously existed. (d) The foreclosure sale normally comes only after considerable notice giving the debtor opportunity to take action by seeking alternative financing or by negotiating to cure the default or by taking advantage of the benefits of Chapter 13. Therefore, setting the date of sale as the cut-off point avoids most of what some courts have described as the “unseemly race to the courthouse.” Concededly no scheme can avoid that possibility altogether, but the time and notice requirements incident to most sales at least provide breathing room and should deter precipitate action that might be expected if the cut-off date were measured by the fact of notice of acceleration or the fact of filing suit. (e) Any earlier date meets with the complaint that the rights conferred by the statute upon debtors to cure defaults have been frustrated. (f) Any later date meets with the objection that it largely obliterates the protection Congress intended for mortgagees of private homes as distinguished from other secured lenders. (g) Any later date also brings with it the very serious danger that bidding at the sale itself, which should be arranged so as to yield the most attractive price, will be chilled; potential bidders may be discouraged if they cannot ascertain when, if ever, their interest will become finalized. In so ruling we avoid any effort to analyze the transaction in terms of state property law. Modern practice varies so much from state to state that any effort to satisfy the existing concepts in one state may only create confusion in the next. Thus, in construing this federal statute, we think it unnecessary to justify our construction by holding that the sale “extinguishes” or “satisfies” the mortgage or the lien, or that the mortgage is somehow “merged” in the judgment or in the deed of sale under state law. III. A. Section 362(a) — Automatic Stay The debtors in Miller and Pigloski argue that the automatic stay provisions of 11 U.S.C. § 362(a) operate to toll the running of the statutory period for redeeming real estate sold at a foreclosure sale. Section 362(a) provides in pertinent part: (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970 (15 U.S.C. 78eee(a)(3)), operates as a stay, applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; (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; An oft-quoted excerpt from the legislative history of section 362(a) indicates the provision’s major purposes: The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy. The automatic stay also provides creditor protection. Without it, certain creditors would be able to pursue their own remedies against the debtor’s property. Those who acted first would obtain payment of the claims in preference to and to the detriment of other creditors. Bankruptcy is designed to provide an orderly liquidation procedure under which all creditors are treated equally. A race of diligence by creditors for the debtor’s assets prevents that. H.R.Rep. No. 595, 95th Cong., 1st Sess. 340 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6296-97. The district courts and bankruptcy courts disagree concerning whether the automatic stay provisions of section 362(a) toll state statutory foreclosure redemption periods. One line of cases has held that the limited automatic extension of time available under 11 U.S.C. § 108(b) precludes relief under section 362(a). Section 108(b) provides: (b) Except as provided in subsection (a) of this section, if applicable law, an order entered in a proceeding, or an agreement fixes a period within which the debtor or an individual protected under section 1301 of this title may file any pleading, demand, notice, or proof of claim or loss, cure a default, or perform any other similar act, and such period has not expired before the date of the filing of the petition, the trustee may only file, cure, or perform, as the case may be, before the later of— (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; and (2) 60 days after the order for relief. In Bank of Commonwealth v. Bevan, 13 B.R. 989 (E.D.Mich.1981), the mortgagor filed a petition for reorganization under Chapter 11 of the Bankruptcy Code following a foreclosure sale of his home. The bankruptcy court had entered an order pursuant to section 362(a), indefinitely extending the statutory redemption period. In reviewing the bankruptcy court’s order, the district court noted that “the language of § 362(a) fails to explicitly address the running of time periods,” id. at 992, while section 108 explicitly grants the trustee additional time in which to perform acts such as redemption. Reading the two sections together, the court held that the automatic stay provisions of section 362(a) do not override the extension of time provision in section 108(b). The court reasoned: An interpretation of § 362(a) as an indefinite stay of the statutory period of redemption would render § 108(b) superfluous. If § 362(a) automatically stays the running of the statutory right to redeem until the stay is lifted pursuant to § 362(c) or (d), the pertinent time allotments of § 108(b) are completely extraneous as statutory time periods designed to control the trustee’s activity. Moreover, if § 362(a) is interpreted to provide for the automatic stay of time periods for an indefinite amount of time, then subsections (a) and (b) of § 108, which define minimum and maximum time periods for the trustee to act, directly conflict with § 362(a). Id. at 994. The court concluded that “where one section of the Bankruptcy Code explicitly governs an issue, another section should not be interpreted to cause an irreconcilable conflict.” Id. Several courts have agreed with the Elevan court’s interpretation of sections 108(b) and 362(a). See, e.g., Johnson v. First National Bank, 719 F.2d 270, 278 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); In re Cucumber Creek Development, Inc., 33 B.R. 820 (D.Colo.1983); In re Martinson, 26 B.R. 648 (D.N.D.1983); Matter of Markee, 31 B.R. 429 (Bankr.D.Idaho 1983); In re Construction Leasing & Investment Corp., 20 B.R. 546 (Bankr.M.D.Fla.1982); In re Murphy, 22 B.R. 663 (Bankr.D.Colo. 1982) . In a recent case, the Bankruptcy Court for the Western District of Michigan considered whether the automatic stay of section 362(a) tolls the statutory redemption period in the context of Chapter 13. In re Wallace, 33 B.R. 29 (Bankr.W.D.Mich. 1983) . The debtor in Wallace had filed her 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_r_fiduc	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 "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SPRINGFIELD BUILDING AND CONSTRUCTION TRADES COUNCIL et al., Respondents. No. 5395. United States Court of Appeals First Circuit. Dec. 31, 1958. Arnold Ordman, Washington, D. C., with whom Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., were on the brief, for petitioner. John I. Robinson, Springfield, Mass., with whom Norris E. Dibble, Springfield, Mass., was on the brief for respondents. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. WOODBURY, Circuit Judge. The president of a labor organization known as the Springfield Building and Construction Trades Council, at a meeting in May, 1957, attended by representatives of affiliated labor unions, some 20 employers engaged in the construction business in and around Springfield, Massachusetts, and representatives of the local association of employers in the building trades, announced that the Trades Council no longer intended to tolerate the employment of union and non-union men working together on the same job, but that thereafter construction jobs within the Council’s jurisdiction must either be run with 100% union men or be run entirely with nonunion men. A few weeks later, on or about June 10, Leo, Spear Construction Co., Inc., as the general contractor, submitted a written bid to the Town of Southwick, Massachusetts, for the construction of an addition to the town office building. In accordance with accepted practice in the area Spear included in its bid as general contractor previously submitted sub-bids of James F. Rogers, doing business under the name of Rogers Heating and Engineering Company for the heating work and of Valley Electric and Heating Service for the electrical work. Both of these sub-bids were the lowest submitted for the work covered in each. The employees of these sub-bidders, Rogers and Valley, were not represented by any union. Spear’s employees, on the other hand, were all members of local unions affiliated with the Trades Council and Spear had a contract with the Carpenters’ District Council of Springfield which provided in relevant part that: “Members are not allowed to work with non-union Carpenters or Craftsmen specified by the District Council nor with apprentices not recognized by the District Council.” When it became known that Spear’s bid was the lowest submitted for the Southwick job, the secretary of the Trades Council notified Spear that there would be “trouble” if the job proceeded with participation by the non-union employees of Rogers and Valley. Spear notified the town authorities of this and when on June 15 Spear and the Town of r Southwick executed a written contract ! on the basis of Spear’s bid it was with ■ the oral understanding that if labor diffi- \| culties arose Rogers and Valley would 5 be taken out of the general contract, j Two days later, further threats of ¿ trouble having been made to Spear by 5 the secretary of the Trades Council, \| Rogers and Valley were taken out of I Spear’s contract by the execution of a ¿^.change order. When representatives of the Trades Council learned that the heating and electrical work had been taken out of Spear’s general contract they had a meeting with representatives of the Town in an attempt to dissuade the town authorities from executing separate contracts with Rogers and Valley. The argument advanced by representatives of the Council at that meeting w.as that neither Rogers nor Valley, nor indeed any other employer of non-union labor, was- legally eligible to enter into contracts with the Town because their nonunion employees could not work in harmony with union men, and hence no non-union employer could comply with the requirement of Mass.Gen.L. (Ter. Ed.1932) c. 149 § 44A which provides in part that every bidder or sub-bidder for the construction of public buildings for the Commonwealth or any governmental unit thereof “shall certify that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed on the work.” In spite of efforts to negotiate, no agreement was reached at this meeting and on July 3 the Town entered into separate contracts with Rogers and Valley for the work each had respectively agreed to perform. On July 8, prior to the appearance on the job of any of Roger’s or Valley’s employees, the Carpenters’ District Council with the approval of the Trades Council, directed its carpenters who were employed by Spear to quit work on the Southwick job. On the next day, at the instigation of their union officials, union bricklayers employed on the job by Hampden Construction Company, another sub-contractor under Spear, failed to report for work. We turn now to a very similar situation which developed at about the same time in the Town of West Springfield. In March, 1957, that Town decided to renovate one of its schools and in pursuance of that decision it entered into a number of contracts with the individual contractors who had submitted the lowest bids for the various phases of the work required to put the school back into operation. The Town awarded the contract for the carpentry work involved to the W. J. Quinn Construction Company and the contract for the ventilating work to Rogers. Quinn’s carpenters were union men working under a contract between Quinn and the District Council containing the same provision mentioned above in Spear’s contract forbidding the employment of union men with non-union men; Roger’s employees, as already appears, were not unionized. The president of the Trades Council attempted to dissuade the town authorities from entering into separate contracts for the various kinds of work involved in renovating the school on the ground that Mass.Gen.L. (Ter.Ed.1932) c. 149 § 44A required a general contract for the entire renovating project with subcontracts for its various aspects, and hinted broadly that trouble would ensue if union and non-union men were employed on the job. These efforts proving fruitless, the District Council, through its business agent, ordered Quinn’s union carpenters off the job and when they quit so also did all other union men on the job and a general strike ensued. On separate charges filed by Spear with respect to the Southwick job and by Rogers with respect to the West Springfield job, General Counsel for the Board issued complaints against the labor organizations involved and their agents charging all respondents with violating § 8(b)(4)(A) of the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C.A. § 158(b)(4)(A), which makes it an unfair labor practice for a labor organization or its agents “ * * * to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment * * * to perform any services, where an object thereof is: (A) forcing or requiring * * * any employer or other person * * * to cease doing business with any other person * * The two cases were consolidated and as a result of usual proceedings the trial examiner found on the record as a whole that the respondents had “induced or encouraged the employees of Spear, Hampden and Quinn to engage in strikes or concerted refusals in the course of their employment to perform services for their respective employers with an object of (1) forcing or requiring Spear and the Town of South-wick to cease doing business with Rogers and Valley and (2) forcing or requiring Quinn and the Town of West Springfield to cease doing business with Rogers,” and that by such conduct the respondents had committed an unfair labor practice in violation of § 8(b)(4)(A) of the Act. The Board on review adopted the findings, conclusions and recommendations of its trial examiner and ordered the respondents to cease and desist from inducing or encouraging the employees of Spear, Hampden or Quinn “or any other employer to engage in a strike or a concerted refusal in the course of their employment to perform services for their respective employers where an object thereof is to force or require the Towns of Southwick or West Springfield or any other town, employer or person to cease doing business with [Rogers or Valley] or any other employer or person” (italics supplied), and to post appropriate notices. This is the order the Board asks us to enforce. The facts essential to the jurisdiction of the Board and of this court are conceded. Nor is there any doubt in our minds that the factual findings and conclusions of the trial examiner which the Board adopted as its own are amply supported by the evidence in the record considered as a whole. Indeed, the respondents do not challenge the evidentiary findings underlying the Board’s conclusion of a violation of § 8(b) (4) (A) of the Act, nor do they seek to distinguish the case at bar from N.L.R.B. v. Denver Bldg. & Const. Trades Council, 1951, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284. Theirs is a sort of unclean hands argument. It is that their conduct, although in appearance in violation of the above section of the Act as construed in the case just cited, was justified because") Rogers and Valley, who are the em- j ployers involved whom the Act under- ,j takes to protect, knowingly participated I in violating Massachusetts statutory''» provisions by contracting directly with the towns involved, whereas local law required that in the construction of public buildings there shall be but one contract between the governmental entity and a general contractor and that sub-contractors shall enter into separate sub-contracts with the general contractor. It may very well be that the letting of separate contracts to Rogers and Valley by the Town of Southwick and to Rogers and Quinn by the Town of West Springfield violated local law. But that does not concern us. It is the function of the Massachusetts authorities to enforce compliance with the Massachusetts law respecting the letting of contracts for the construction of public buildings. The question before us is whether the Labor Management Relations Act, 1947, has been violated and we are not aware of anything in that Act, or in its basic policy, to indicate that its application depends upon compliance by any employer concerned with local statutory provisions regarding the letting of contracts. Indeed, we think the federal Act would lose uniformity of application and be rendered ineffectual to accomplish its purpose if its application were to be made subject to compliance by the persons involved with local statutes, ordinances and policies governing contracts for the erection or repair of public buildings. We find no merit whatever in this defense. !• Nor do we find any merit in the respondents’ further defense that Rogers and Valley were so “allied” with Spear on the Southwick job, and Rogers was so “allied” with Quinn on the West Springfield job, as to constitute for the purpose of § 8(b)(4)(A) of the Act a single employer on each job with whom the respondents had a primary labor dispute. This is not a case like N.L.R.B. v. Business Machine and Office Appliance Etc. Workers, 2 Cir., 1955, 228 F.2d 553, certiorari denied 1956, 351 U.S. 962, 76 S.Ct. 1025, 100 L.Ed. 1483, in which employees of a secondary employer are doing work “farmed out” by a primary employer whose own employees would be doing the work themselves were they not out on strike. On neither job were the employees of either Rogers or Valley doing work which the employees of Spear or of Quinn would have been doing had there been no strike. The contractors and sub-contractors involved herein were wholly independent of one another, and the fact that they “were engaged on the same construction project, and that the contractor had some supervision over the subcontractor’s work, did not eliminate the status of each as an independent contractor or make the employees of one the employees of the other. The business relationship between independent contractors is too well established in the law to be overridden without clear language doing so.” N.L.R.B. v. Denver Bldg. & Const. Trades Council, supra, 341 U.S. 689, 690, 71 S.Ct. 951, 952. But the respondents contend that in any event the order of the Board is unduly broad in its scope and this court should modify it before ordering it enforced by striking out the portions thereof which appear in italics in our quotation from the order earlier in our opinion. The order is certainly broader than is required merely to put an end to the specific statutory violations found by the Board with respect to the two jobs before it. On the other hand, the Board did not in its order attempt “to enjoin violations of all the provisions of the statute merely because the violation of one has been found,” as in N.L.R.B. v. Express Publishing Co., 1941, 312 U.S. 426, 437, 61 S.Ct. 693, 700, 85 L.Ed. 930. The Board’s order deals with specific provisions of one section of the Act which it found that the respondents had violated on two contemporaneous jobs, apparently in an attempt to implement a settled policy previously announced. These two instances of violations of the Act in carrying out that settled policy justify the Board’s evident belief that the respondents would be likely to engage in similar conduct on other jobs should the occasion arise and we think this clearly warrants an order broader than the exigencies of these particular cases require. In short, we think in view of the announced policy of the respondents no longer to tolerate union men working with non-union men on the same building project, that the Board was warranted in issuing the order it did covering persons and employers other than those directly involved in the cases before it, and that the Board is not required to deal with each similar violation of § 8(b)(4)(A) which might be indulged in by these respondents in specific situations which could reasonably be expected to arise in the future. See International Brotherhood of Electrical Workers, Local 501, A. F. of L. v. N.L.R.B., 1951, 341 U.S. 694, 705, 706, 71 S.Ct. 954, 95 L.Ed. 1299. A decree will be entered enforcing the order of the Board. Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_circuit	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. Milton J. BAUMEL, Appellee, v. Leonard ROSEN and Julius J. Rosen, and Rosen Investment Corporation, Appellants. Earl R. WEINER and Anita L. Weiner, Appellees, v. ROSEN INVESTMENT CORPORATION, Leonard Rosen, and Julius J. Rosen, Appellants. Nos. 12648, 12649. United States Court of Appeals Fourth Circuit. Argued March 4, 1969. Decided May 22, 1969. H. Vernon Eney and Charles C. W. Atwater, Baltimore, Md. (Mylander & Atwater, Robert R. Bair, Stuart H. Rome, Alan D. Yarbro, Richard W. Emory, Jr., and Venable, Baetjer & Howard, Baltimore, Md., on brief) for appellants. Morton E. Yohalem, Washington, D. C. , and George Cochran Doub, Baltimore, Md. (Weinberg & Green, Baltimore, Md., H. Don Cummings, Washington, D. C., Zelig Robinson, Baltimore, Md., Joel Yohalem, Washington, D. C., and Lee N. Koehler, Baltimore, Md., on the brief) for appellees. Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges: ALBERT V. BRYAN, Circuit Judge. The Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq., and an accompanying enforcement rule are the basis for the decrees now on appeal. These orders rescind the purchases by the defendants in 1957 from the plaintiffs of capital stock of the Gulf American Company, a Florida corporation. Affirmative misrepresentations by the defendants and their reticence in regard to other facts were found by the District Court, and account for the decision. The purchasers appeal. We, too, uphold the plaintiffs but refuse rescission and award damages. Section 10 of the Act, 15 U.S.C. § 78j (b) declares: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— ****** “(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. June 6, 1934, c. 404, § 10, 48 Stat. 891.” Rule 10b-5, 17 C.F.R. § 240.10b-5, implements the statute in this way: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, “(a) To employ any device, scheme, or artifice to defraud, “(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or “(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” The Rule was the main predicate of each action. J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Securities and Exchange Commission v. Texas Gulf Sulphur Co., 401 F.2d 833, 847 (2 Cir. 1968). In a collateral count each plaintiff-vendor also pleaded common law fraud and deceit for vacation of the transaction. Jurisdiction of the statutory claim is rested on § 27 of the Act, 15 U.S.C. § 78aa, with the common law case as a pendent controversy. However, the latter claim need not be noticed, because no decision in the case was put upon it. Leonard Rosen and his brother Julius organized the Gulf company to utilize their experience in instalment selling for the sale of lots in Florida. They subscribed equally, together paying $52,000, for 52% of the authorized capital stock and simultaneously lending Gulf $50,000. At all times the brothers were directors, principal officers, and majority stockholders of the corporation, with Leonard its chief and leader. To obtain more funds, they planned additional financing through sale of “units”. Selling for $11,000, each unit consisted of a $10,000 10% debenture of the corporation, and 500 shares of Class A common stock representing l'% of the entire capital stock. Distribution was accomplished through sales to friends engaged in the commerce of Baltimore, Maryland, the Rosens enjoying a prominent social and business place throughout the city. Sales of the units commenced in October 1957. In this offering plaintiff-appellee Milton Baumel, a successful restaurateur, bought one unit in November 1957; in the same month Leonard Rosen sold a unit to the other plaintiff-appellee, Earl Weiner, a dentist. The Rosens while in control and direction of the company purchased the Bau-mel and Weiner units in August 1959— $10,000 for the stock and $10,000 for the debenture — and these transactions are the centerpiece of this case. The acquisitions were in accordance with a plan of the Rosens to recapture all of the stock units which they had sold upon inauguration of the Florida project. The idea of repossessing the stock was rightful, but the means employed were wrongful, the District Court concluded. The opinion of the District Court, Bau-mel v. Rosen, 283 F.Supp. 128 (D.C.Md. May, 1968) so comprehensively and clearly recounts the circumstances of each purchase that to retell them here would be nothing more than a work of supererogation. It found that the purchases from Baumel and Weiner, as well as from others, were procured through affirmative misrepresentations of the financial condition of the company, and under non-dislosure of material incidents in the corporate operations. Specifically, the finding was that the avowed inducements falsely pictured the corporation as desperately in need of funds, without which it would be unable to continue operations; that these moneys could be obtained only by granting lenders participation in the venture; and that for this purpose outstanding stock was needed. Matters found not divulged included these: the failure of the Rosens to reveal the proven ability of the corporation to borrow from a reputable banking house; the failure to make known that the corporation’s sales of properties had far exceeded expectations; and the exhibition of an audit report to stockholders which was not entirely accurate, because the method of accounting employed did not note potential profits. The Court recognized that the surrender by Baumel and Weiner of their stock was at a price returning them a profit of 900%. Against this, however, the Court found that they would not have disposed of their stock even at that figure, if they had been aware of the untruth of the avowals and the deception of the omissions, for there was then every reason to believe, as subsequent developments confirmed, that a far, far handsomer, if not fabulous, gain would be realized by retention of the stock. In sum, the court found that the Rosens directly or indirectly had consciously imposed upon Baumel and Wei-ner, who believed the persuasions advanced and acted upon them in parting with their stock. In these conclusions the Court expounded the purpose of the Act and Rule, and altogether soundly, we think. It noted the dominance by the Rosens of the corporation and their superior and intimate knowledge of its actual and potential achievements; it observed the inferior acquaintance of the plaintiffs with the internal economy of Gulf. In this position the Court declared it the bounden duty, under the Act and Rule, of the Rosens to withhold no pertinent information from the minority shareholders, and of course to refrain from positive avouchments in whole or in part factually untrue. For violation they were liable. On August 16, 1962 Baumel and Weiner renounced their sales to the Rosens by filing these actions. The complaint in each instance asked for rescission, and for restitution by delivery to the plaintiffs of the current equivalent in kind of the 500 shares purchased by the defendants in 1959. In the interim, the Gulf stock was split on March 1, 1961 at the rate of 34.6 shares for 1, giving' 17,300 shares for each 500-unit. Another split occurred on March 19, 1962, at the rate of 4 to 1. At the time of suit each initial unit had thus increased to 69,200 shares. Upon these findings, and its determination of the violation of Rule 10b-5, the Court at first granted the plaintiffs damages. On reconsideration, upon plaintiffs’ motion, it granted rescission instead of damages, and directed the defendants to transfer to each of the plaintiffs a certificate for 69,200 shares of the outstanding stock of Gulf. The defendants can comply but, aside from denying liability, they deny the soundness of the measure of recovery. I. On this appeal of the Rosens we cannot say that the subordinate and ultimate findings of the trial judge are unwarranted as “clearly erroneous”. Nor do we discern law error in his reading or employment of the Act and Rule. II. However, we are not satisfied that the plaintiffs are entitled to rescission. Their neglect to act vigilantly in disavowal of the agreement cost them the right to rescind, even if we assume there was such a right. Plaintiffs sold their stock in August 1959. Baumel states that at the end of the month or in early September he believed he had been “taken”, i.e., that the price he received was far less than the then value of the securities. Weiner testifies that at Thanksgiving or Christmas 1959 he had been told by a friend that Gulf “had plans to go public and that the stock was worth quite a bit of money more than I had received for it”. Nevertheless, neither plaintiff renounced for three years — in August 1962 when they instituted these actions. Rescission is a radical move, and the law exacts the election of that course to be asserted without wait. The demand is that advice of the determination be given within a reasonable time after discovery of the ground for rescission. This principle is stringently administered. Reasonable time is inceptive from the receipt by the rescinder of word putting him on notice. It is then incumbent upon him to pick up the scent and nose to the source. See Friedman, Delay As a Bar to Rescission, 26 Cornell Law Quarterly 426, 432, text at footnote 31 and authorities cited therein (April 1941). If the quest confirms the suspicion, then he must make decision with reasonable dispatch. Failing this, entitlement to rescission disappears. Here, no such vigor was exhibited. Indeed, although plaintiffs are not chargeable with complete awareness of the knavery earlier than March 1961— when the Gulf stock went public, and more than 14 months after they had wind of the malodor — they pondered another 18 months before disclaiming the sale. The books teem with support for these propositions. Thus the Court said in McLean v. Clapp, 141 U.S. 429, 432, 12 S.Ct. 29, 30, 35 L.Ed. 804 (1891): “ ‘ * * * He [the rescinder] is not permitted to play fast and loose. Delay and vacillation are fatal to the right which had before subsisted. These remarks are peculiarly applicable to speculative property like that here in question, which is liable to large and constant fluctuations in value. * * * (Accent added.) Apt here, especially, is Twin-Lick Oil Co. v. Marbury, 91 U.S. 587, 592-593, 23 L.Ed. 328 (1875). There the nature of the subject of the sale was noted as a factor in determining the timeliness of the repudiation. It is put in these words: “The fluctuating character and value of this class of property is remarkably illustrated in the history of the production of mineral oil from wells. Property worth thousands today is worth nothing to-morrow; and that which would to-day sell for a thousand dollars as its fair value, may, by the natural changes of a week or the energy and courage of desperate enterprise, in the same time be made to yield that much every day. The injustice, therefore, is obvious, of permitting one holding the right to assert an ownership in such property to voluntarily await the event, and then decide, when the danger which is over has been at the risk of another, to come in and share the profit. (Accent added.) “While a much longer time might be allowed to assert this right in regard to real estate whose value is fixed, on which no outlay is made for improvement, and but little change in value, the class of property here considered, subject to the most rapid, frequent, and violant fluctuations in value of any thing known as property, requires prompt action in all who hold an option, whether they will share its risks, or stand clear of them.” This precept has been carried into decisions under the Securities Exchange Act and Rule 10b-5, e.g. Estate Counseling Service, Inc. v. Merrill Lynch, Pierce, etc., 303 F.2d 527, 532 (10 Cir. 1962), where the Court pointed out: “In view of the speculative nature of the transaction and with a fluctuating market, the law required the appellant to act promptly or waive its right to rescind. Where parties have the right to rescind, they cannot delay the exercise of that right to determine whether avoidance or affirmance will be more profitable to them. This is particularly true where the transaction is one of a speculative nature. * * * ” Further rationale for the requirement of immediacy is that every day’s lapse renders more difficult the very aim of rescission: to return the parties to statu quo ante. That obviously is well exampled here. III. Damages, nevertheless, are recoverable for the imposture. Like the District Court the yardstick, we think, for the ascertainment of damages in a case of this kind is the gauge stated by Chief Judge Aldrich in Janigan v. Taylor, 344 F.2d 781, 786 (1 Cir. 1965), cert. den. 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). His outline is this: “On the other hand, if the property is not bought from, but sold to the fraudulent party, future accretions not foreseeable at the time of the transfer even on the true facts, and hence speculative, are subject to another factor, viz., that they accrued to the fraudulent party. It may, as in the case at bar, be entirely speculative whether, had plaintiffs not sold, the series of fortunate occurrences would have happened in the same way, and to their same profit. However, there can be no speculation but that the defendant actually made the profit and, once it is found that he acquired the property by fraud that the profit was the proximate consequence of the fraud, whether foreseeable or not. It is more appropriate to give the defrauded party the benefit even of windfalls than to let the fraudulent party keep them”. In accord is Myzel v. Fields, 386 F.2d 718 (8 Cir. 1967), cert. den. 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1143 (1968). Nothing contra in the decisional or statutory law of Maryland has been cited to us and we have found none. Moreover, we are of opinion that Federal rather than State law provides the measure when, as here, recovery is put upon a Congressional enactment. See J. I. Case Co. v. Borak, supra, 377 U.S. 426, 433, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). The application of this yardwand to the circumstances of this case is the next question. On March 1, 1961, as already mentioned, there was a stock split ahd the former interest of each plaintiff then grew to 17,300 shares. That was the time of the first public offering of the stock, and it was declared by the prospectus issued by the company to have a value of $5.00 a share when purchased along with debentures. On March 9, when the stock was purchasable without the debentures, the selling price was between $7.50 and $8.50. We do not agree with the appellees’ contention, accepted by the District Court, that the reckoning of their reimbursement should include reference to the second stock split, which occurred March 19, 1962 and raised the prior interest of each plaintiff to 69,200 shares. The trial court found, and plaintiff Bau-mel concedes, that March 8, 1961 was the day on which he knew, or should have known, of his dupery, for he was by then apprised of it by the stock split and public offering. It seems to us that under the admitted facts, Weiner too is chargeable with notice at that time. Hence, a day within a fair range of these events should be taken as the date to be used in the calculation of damages. This conclusion is not inconsistent with the view of the trial judge, which he expressed in this way: “Had plaintiffs elected to press their optional right to money damages, rather than the specific return of personal property, plaintiffs would have been entitled to money damages at least for accretions in value within a reasonable time after they discovered or had reason to know of defendants’ tortious conduct (Restatement of Torts (1939 Ed.) § 927, comment e.), or to its highest value reached within a reasonable time after the tortious conduct (Restatement of Restitution, supra, § 151, comment c.).” 283 F.Supp. at 147. Because of the volatile nature of first-offering stock prices and in the circumstances of this case, we conclude that March 9, 1961 — the first occasion of ex-debenture sale — should be taken as the critical date for assessing the damages. For this purpose we look to the spread of the quotation on that day and settle on the mean of $8.00 a share. Our determination, then, is that each plaintiff should be awarded a judgment computed at the rate of $8.00 per share upon the 17,300 shares to which he would have been entitled had he retained his stock, together with interest thereon, at the rate of 6% per annum, from March 9, 1961 until paid, less the sum originally paid him for his shares with interest thereon at 6% from the date he was paid. It must be recalled that while a defrauding party is not to be excused, neither is he to be punished. This is not only within the guidance of the Securities Act, 15 U.S.C. § 78bb(a), but it is the generally accepted pattern. The proposition is well stated by Friedman, Delay As a Bar to Rescission, supra, 26 Cornell Law Quarterly 426, 447 (April 1941) as follows: “It may be said that one guilty of fraud is entitled to no undue consideration from the court. Yet the policy of the law on its civil side is not punishment. A fair attempt to compensate for wrongs is the aim”. This result is attained, we think, in the damages we have allowed. Although the court was discussing punitive damages, not relevant here, the observation of the opinion in Green v. Wolf Corporation, 406 F.2d 291, 303 (2 Cir. 1968) is noteworthy : “ * * * We do not believe that Congress intended the Securities and Exchange Act to be used as a vehicle for the recovery of judgments that could often be grossly disproportionate to the harm done.” ****** “Accordingly, we conclude that punitive damages are not authorized in private actions under § 10(b) and Rule 10b-5.” Other issues in the case, such as the pleas of the statute of limitations, laches and the non-joinder of certain parties, we find without merit. Affirmed in part; reversed in part. . Originally its name was Gulf Guaranty Land and Title Company. . These are appeals in two actions heard together in the District Court. One was brought by Earl R. Weiner, here treated as the sole plaintiff, although his wife joined with him; the other case was brought by Milton J. Baumel. Since the issues at trial and on review are common to both causes, they are presented together here. The only differences are the names of the plaintiffs. The cases were against the same parties, but one of the defendants, Rosen Investment Corporation, may be ignored as playing no significant part in the litigation. The individual defendants exclusively owned this corporation and any stock transfers to it are treated herein as transfers to the individuals. . “The district courts of the United States * * * shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all' suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder. * * * ” 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_respond1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". Robert J. ALDERMAN, Plaintiff-Appellant, v. TANDY CORPORATION, d/b/a Radio Shack, Defendant-Appellee. No. 82-3019. United States Court of Appeals, Eleventh Circuit. Dec. 5, 1983. Eugene S. Zimmer, Anthony B. Askew, Atlanta, Ga., for plaintiff-appellant. Michael C. Addison, Tampa, Fla., for defendant-appellee. Before TJOFLAT and HILL, Circuit Judges, and SIMPSON, Senior Circuit Judge. JAMES C. HILL, Circuit Judge: Robert J. Alderman brought suit in the district court against Tandy Corporation for patent infringement and violation of a trade secret agreement. The jury rendered a verdict against Alderman on the trade secret claim but returned an advisory verdict in Alderman’s favor on the infringement claim. The judge disregarded the advisory verdict and entered judgment against Alderman on both claims. Aider-man moved for a directed verdict and judgment n.o.v. on the . trade secret count; he appeals from the district judge’s denial of those motions. We find no error in the district judge’s actions. Alderman did not move for a new trial at the district court, and we conclude that, given the procedural posture of this case, we cannot now order a new trial on our own motion. We therefore affirm the judgment of the district court. Robert J. Alderman is a self-trained inventor with an interest in radios and electronics. In the early 1970’s, Alderman became interested in the possibility of applying the principle of controlled carrier circuitry to citizen’s band radios such as “walkie-talkies.” Controlled carrier circuits regulate the intensity of the carrier, or radio signal, transmitted by the radio. Alderman succeeded in developing a circuit that limits the radio’s broadcast of unmodulated carrier during the time when no information is being impressed on the carrier signal. In practical terms, the circuit prolongs the life of the batteries in walkie-talkies by reducing the power used to broadcast unmodulat-ed carrier. On July 5, 1974, Alderman filed a patent application covering his controlled carrier circuit. The patent office granted his patent on November 15, 1977. During the intervening three years, Alderman contacted several corporations in an effort to market his invention. He received a response from Dr. Frank Roberts, product development manager at Radio Shack (a division of Tandy). Alderman contacted Roberts and subsequently met with him to demonstrate the circuit. Radio Shack was interested in the circuit and eventually developed product samples through a Japanese manufacturer. After obtaining approval of the circuit from the Federal Communications Commission (FCC), Radio Shack marketed the circuit as a part of its TRC-205 walkie-talkie. The dispute between Radio Shack and Alderman centers on Radio Shack’s use of the controlled carrier circuit without paying compensation to Alderman. Alderman contends that Radio Shack used the circuit in the TRC-205 without his permission while negotiating as to the amount of compensation it would pay him. Radio Shack contends that Alderman did not and does not deserve compensation because the circuit was not novel or a new invention. Both parties introduced expert testimony at trial in support of their positions, and the jury found for Radio Shack. I Alderman contends that the district judge erred by failing to direct a verdict and by failing to enter judgment n.o.v. as to the trade secret claim. (Alderman does not challenge the judgment on the patent' claim.) Under Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc), we must determine whether “substantial evidence” supported Radio Shack’s case such that a reasonable juror could vote against Aider-man. Id. at 374. If so, we must affirm the decision of the district judge to deny Alderman’s motions. In K & G Oil Tool Co. v. G & G Fishing Tool Service, 117 U.S.P.Q. 54 (Tex.1958), the Supreme Court of Texas stated the test for determining the existence of a trade secret: A trade secret may be a device or process which is patentable; but it need not be that. It may be a device or process which is clearly anticipated in the prior art or one which is merely a mechanical improvement that a good mechanic can make. Novelty and invention are not requisite for a trade secret as they are for patentability. Id. at 55. Nevertheless, as the court stated in Cataphote Corp. v. Hudson, 444 F.2d 1313 (5th Cir.1971), the secret “must possess at least that modicum of originality which will separate it from everyday knowledge .... ” Alderman argues that the testimony at trial clearly supports his position that, although the principle of controlled carrier had been known for some time, the improved circuit that he developed constituted a trade secret. He contends that Radio Shack introduced no substantial evidence tending to rebut this position. Radio Shack relies on the testimony of its expert, Nathan Sokul. At trial, Sokul stated that Alderman had simply used the principle of controlled carrier, which was common knowledge, to design a circuit constructed with modern transistors instead of vacuum tubes. He stated unequivocally that the substitution was obvious. This testimony constituted substantial evidence from which the jury could conclude that Alderman’s circuit lacked the requisite “modicum of originality.” Though Alderman introduced expert testimony tending to rebut Sokul’s conclusion, we cannot hold that the rebuttal evidence entitled Alderman to a directed verdict or judgment n.o.v. Weighing the evidence is the function of the jury, not of this court. II Even though we cannot conclude that the district court erred in denying Alderman’s motions for a directed verdict and judgment n.o.v., we find this case troublesome. In its verdict, the jury found that Radio Shack had infringed Alderman’s patent (the advisory portion of the verdict), but the jury also found that the evidence did not support Alderman’s trade secret claim. The degree of novelty required to find a valid patent exceeds the degree of novelty necessary to find a trade secret. Thus, the jury’s verdict is self-contradictory. We believe that the contradiction demonstrates a jury malfunction and afforded Alderman valid grounds to move for a new trial. Alderman did not make such a motion before the district court, however, and he did not request a new trial in his appeal. On our own motion, we requested briefs addressing the propriety of this court is nevertheless granting Alderman a new trial. After considering the problem, we conclude that it would be improper for us to do so. In his supplemental brief, Alderman cites cases in which appellate courts have granted new trials under Federal Rule of Civil Procedure 50(d). In these situations, the appeals courts have determined as a matter of law that the appellant is entitled to judgment n.o.v. See Slaughter v. Philadelphia Nat. Bank, 417 F.2d 21 (3d Cir.1969); Proctor & Gamble Defense Corp. v. Bean, 146 F.2d 598 (5th Cir.1945). In such a case, it is proper for either a trial court or an appellate court to exercise its discretion and give the appellee another chance instead of ordering judgment to be entered for the appellant. When the trial court cannot conclude that judgment n.o.v. is warranted, however, it is improper for that court sua sponte to order a new trial.' Peterman v. Chicago, Rock Island & Pac. R. Co., 493 F.2d 88 (8th Cir.1974), cert. denied, 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667 (1974); Jackson v. Wilson Trucking Corp., 243 F.2d 212 (D.C.Cir.1957). We see no reason why this court should sua sponte grant a new trial when it would be improper for the district court to have done so. In this case, Alderman clearly had an opportunity to move for a new trial, but he chose not to do so. He urges this court to grant judgment n.o.v. on the trade secret claim and order an entry of judgment in his favor of approximately $60,000, the amount of damages found by the jury on the patent claim. Like Aesop’s pup “who dropped his bone to grab one seen in reflection,” In re Southwestern Bell Tel. Co., 542 F.2d 297 (5th Cir.1976) (en banc) (Hill, J., dissenting), rev’d, 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977), Alderman decided to abandon his new trial claim for an unsuccessful claim for judgment n.o.v. He has lost his gamble. We realize that the decisions in Peterman and Jacobs have been criticized. See 5A Moore’s Federal Practice § 50.12; Jackson v. Wilson Trucking Corp., 243 F.2d 212, 217-22 (D.C.Cir.1957) (Burger, J., dissenting). Nevertheless, we find this situation to be an inappropriate one for us to order a new trial on our own motion. Alderman easily could have joined a motion for a new trial with his motion for judgment n.o.v. He chose not to do so. He cannot complain that some unexpected shift in events has made his decision unpalatable in retrospect. Cf. Fed.R.Civ.P. 50(d) (appeals court orders judgment n.o.v. for appellant; appellee can request new trial). Therefore, the judgment of the district court is AFFIRMED. . This is a diversity case in which Texas law supplies the rules of decision. . Even if we were to reverse the district court and order judgment n.o.v. for Alderman, we could not “tack” damages in this manner. Damages for patent infringement are measured differently than damages for breach of a trade secret agreement. . Some of the criticisms of those cases do not apply here because in those cases the district court sua sponte granted a new trial. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_typeiss	D	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. BLAIR et al. v. UNITED STATES for Use and Benefit of GREGORY-HOGAN et al. UNITED STATES for Use and Benefit of GREGORY-HOGAN et al. v. BLAIR et al. Nos. 12871, 12875. Circuit Court of Appeals, Eighth Circuit. July 24, 1945. For former opinion, see 147 F.2d 840. J. W. Barron, of Little Rock, Ark. (Ernest P. Rogers, of Atlanta, Ga., on the brief), for appellants and cross-appellees. Henry Donham, of Little Rock, Ark. (Martin K. Fulk and Pat Mehaffy, both of Little Rock, Ark., on the brief), for appellees and cross-appellants. Before GARDNER, JOHNSEN, and RIDDICK, Circuit Judges. RIDDICK, Circuit Judge. On the first hearing of this case we approved the finding by the trial court of a breach by defendant Blair of his asphalt contract with the plaintiff Gregory-Hogan alleged in paragraph 11 of the complaint. A judgment for damages in favor of Gregory-Hogan resulting from this breach of contract was affirmed after reduction in the amount allowed by the trial court. We reversed the judgment of the lower court in favor of Gregory-Hogan on its claim allowed by the trial court under paragraph 6 of the complaint, in which it alleged liability on the part of defendant Blair for additional expenses incurred by Gregory-Hogan under the so-called speedup agreement between the parties. The contracts referred to are set out with sufficient particularity in our original opinion (8 Cir., 147 F.2d 840) and need not be restated here. In petitions for rehearing both parties assert error in respect to the matters stated. Defendant Blair contends that, conceding that the evidence was sufficient to establish the breach by him of the asphalt contract, it nevertheless conclusively establishes the fact that the plaintiff Gregory-Hogan sustained no damage as the result of the breach. The substance of paragraph 11 of the complaint is that the plaintiff was obligated under its asphalt contract to produce approximately 50,000 tons of asphalt for paving within the time specified in the contract; that, in order to comply with this requirement of the contract, it was necessary for plaintiff to rent and ship to the place of performance an asphalt plant capable of producing 500 tons of asphalt a day; that after the execution of the contract and after plaintiff had incurred the expense of installing the asphalt plant capable of doing the work, the defendant, without notice to or the consent of the plaintiff, caused the required amount of asphalt to be reduced from approximately 50,-000 tons to approximately 20,000 tons, with the result that the plaintiff did not need and could not economically use the large equipment and installation which the original contract required. As damages for this breach of contract plaintiff sought to recover expenses incurred in shipping the large asphalt plant to the place of performance of the work, in installing and equipping the plant for the production of 50,000 tons of asphalt and in dismantling and returning the plant to the point from which it was shipped. Plaintiff offered evidence tending to show that it owned a smaller plant fully capable of furnishing the reduced quantity of asphalt within 150 days. The smaller plant was located at Fort Smith, Arkansas, very near the place of performance of the contract, whereas the larger plant was brought from Mississippi. Included in plaintiff’s alleged out-of-pocket expense was the rental value of the larger plant, presumably for the time it was not needed. In support of this item of expense, plaintiff offered proof to show the fair rental value of the plant and that it could have been rented to other contractors, if the asphalt contract, as originally executed, had not required its use in its performance. The majority of the court were of the opinion that the charges for rent, included in the plaintiff’s alleged out-of-pocket expense, could not be allowed under the evidence in this case. We allowed a recovery in favor of the plaintiff on this claim in the sum of $16,981.74, representing plaintiff’s out-of-pocket expense in shipping, installing, and dismantling'an asphalt plant larger than was necessary for the performance of its contract. On reconsideration, we conclude that this recovery is not supported by any evidence in the record. The so-called asphalt contract was executed on September 20, 1941. Within a very few days after the execution of the contract plaintiff learned that the Government had decided to reduce the amount of asphalt required under the contract by approximately the number of tons of reduction alleged in the complaint. This information came to the plaintiff before September 25, 1941, because on that date plaintiff advised the defendant of its receipt; and, on the contention that the reduction in the amount of asphalt contemplated under the contract would increase the unit cost in the performance of the contract, requested the defendant to ask the Government for an increase in the unit prices allowed on the work. On September 30, 1941, defendant Blair replied to plaintiff’s letter of September 25, 1941, confirming plaintiff’s information concerning the reduction in the amount of asphalt required under the contract and promising to submit to the proper officials of the Government plaintiff’s request for increased unit prices. Defendant’s letter of September 30, 1941, was acknowledged on October 22, 1941. Plaintiff signified its intention of proceeding with the performance of the contract as changed, and expressed confidence that defendant would adequately present to the Government plaintiff’s request for an increase in unit prices for the work under the contract. There is nothing in the record to show when plaintiff began shipment of the large asphalt plant to the place of performance of the contract. In view of the fact that the plaintiff’s evidence establishes that it received knowledge of the reduction in the amount of asphalt required under the contract almost contemporaneously with its execution, it is hardly reasonable to suppose that the large asphalt plant had been dismantled at its location in Mississippi and shipped to a point near Fort Smith, Arkansas, where the work was to be done, and there assembled, before plaintiff had notice of the fact, if its testimony is to be accepted, that a plant of such capacity would not be required for the work to be done by it. On January 12, 1942, defendant wrote to plaintiff, saying that he had received from the Government a change order providing for the changes in the original contract which resulted in the reduction of the asphalt required. In this letter defendant stated: “You were advised sometime ago that the asphalt surfacing in the Motor Park Areas would be omitted, and this Change Order makes the omission a definite fact. “This information is given to you so that you can plan your equipment arrangements accordingly.” In view of the preceding correspondence between the parties, plaintiff’s testimony that the letter of January 12, 1942, was the first decisive information that there would be a change in the requirements concerning the amount of asphalt needed in performing the contract, and that up to January 12, 1942, it had to hold itself in readiness to produce 50,000 tons of asphalt, does not seem entirely reasonable. But even so, accepting January 12, 1942, as the date of the breach of the asphalt contract, plaintiff’s own evidence shows that it was advised as early as November 4, 1941, that no asphalt work would be done before March 1, 1942. The contract, as originally written, required the work to be finished by March 25, 1942, but the date for completion was later extended to April 12, 1942. Plaintiff did not begin setting up its large asphalt plant until some time in the middle of February, 1942, after the receipt of decisive information, if its testimony is to be accepted, that the plant would not be required. The asphalt work was begun about March 1, 1942, but, although it is admitted that nothing occurred to delay the work, it was not completed until June 3, 1942. The large asphalt plant which plaintiff now claims was not needed in the performance of work which the contract required to begin on March 1, 1942, and to be completed on April 12, 1942, was actually needed and used from March 1, 1942, until June 3, 1942. The testimony of Mr. Hogan, of the Gregory-Hogan organization, shows that plaintiff could not have completed its asphalt work with the smaller Fort Smith plant within less than five months and that from three to four months were required with the larger plant. The contract allowed less than two months for the asphalt work. In view of this evidence, plaintiff’s claim that, because of the reduction in the amount of asphalt required in its original contract, it incurred expense in furnishing a plant larger than the work actually done required is not sustained. The fundamental basis for an award of damages for breach of contract is just compensation for losses necessarily flowing from the breach. Michelson, Inc., v. Nebraska Tire & Rubber Co., 8 Cir., 63 F.2d 597, 601; 5 Williston on Contracts, Rev.Ed., § 1338; Restatement of the Law of Contracts, § 329. And while the breach of contract gives rise to a right of action, it is nevertheless possible for a breach to occur without causing damage. Restatement of the Law of Contracts, § 328a. As pointed out in the original opinion, a party whose contract has been breached is not entitled to be placed in a better position because of the breach than he would have been in had the contract been performed. Plaintiff in this case did not seek recovery of profits which it may have made had the contract been performed as originally written. It seeks only the recovery of out-of-pockets expense claimed to have been caused by the breach. The evidence fails completely to establish the loss which plaintiff has asserted. Accordingly, the original opinion in this case is modified by limiting the recovery under paragraph 11 of the complaint to $1 as nominal damages. In its petition for rehearing plaintiff asserts that this court erred in denying the plaintiff the right to recover the sum of $9,709.94, representing the expense incurred by plaintiff in providing an additional gravel pit, the recovery of which was allowed by the District Court as an expense necessarily incurred by the plaintiff under the supplemental contract known as the speed-up agreement. We denied recovery of this item on the ground that under the so-called speed-up agreement the defendant became obligated to pay the plaintiff for such items of expense as the plaintiff incurred as the result of the speedup only as and when plaintiff’s claims therefor were allowed by the Government and . paid to defendant. The record shows that while defendant Blair presented to the Government plaintiff’s claim for the cost of opening the gravel pit and is still pressing the claim, the Government had declined to allow or pay it. In its petition for rehearing plaintiff now asserts that defendant became obligated for this expense under a separate written contract between plaintiff and defendant, and that defendant was obligated to pay this expense whether or not approved and paid by the Government. The claim of a separate written contract is based upon a letter written by defendant Blair to plaintiff Gregory-Hogan, under date of July 28, 1942. In this letter defendant stated: “I am enclosing herewith original and yellow copy of my Formal Order increasing your contract price in the sum of $9,709.94, said amount being that allowed your firm to cover additional gravel pit.” The enclosed formal order provides: “This formal order hereby increases your contract price relative above project in the sum of $9,709.94.” The evidence discloses, however, that the letter and formal order mentioned were written by defendant on the faith of a preliminary allowance by the Government of the claim for the expense of providing the gravel pit, and that subsequently the Government reversed its position and declined to pay the claim. We think it clear that the letter relied on falls far short, in view of the undisputed evidence concerning it, of establishing an absolute agreement on the part of defendant to pay for the cost of opening the gravel pit. Plaintiff’s petition for rehearing on this point is accordingly denied. Plaintiff further alleges that we overlooked in our original opinion an item of interest in the sum of $2,787.54, representing the amount of interest accrued at six per cent per annum on the sum of $34,-843.96, which, as noted in the original opinion, the defendant had paid on the judgment entered by the District Court in favor of the plaintiff. Defendant concedes the correctness of this claim on the part of plaintiff, and, accordingly, it is allowed. It follows from what we have said that the judgment appealed from must be modified so as to permit a recovery by the plaintiff of three items, $10,360.76, $2,-570.75, and $2,787.54, plus $1 as nominal damages for breach of the asphalt contract, amounting in the aggregate to $15,720.05, with interest upon the first two items at six per cent per annum from September 3, 1942. This cause is remanded to the lower court with directions to modify the judgment accordingly. Neither of the parties shall recover costs on these appeals. 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_summary	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 court's ruling on the appropriateness of summary judgment or the denial of summary judgment 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". LUMMUS COMPANY, Defendant, Appellant, v. COMMONWEALTH OIL REFINING COMPANY, Inc., Plaintiff, Ap-pellee (three cases). Nos. 5552-5554. United States Court of Appeals First Circuit Dec. 21, 1959. See also 174 F.Supp. 485. Richard Bancroft, Putnam, Bell, Santry & Ray, Boston, Mass., Cahill, Gordon, Reindel & Ohl, New York City, and McConnell, Valdes & Kelley, San Juan, P. R., for appellant on motion for stay and memorandum in support thereof. Ruben Rodriguez-Antongiorgi, San Juan, P. R., Richard deY. Manning, Milton Pollack, John F. Dooling, Jr., Dennis C. Mahoney, Hamilton F. Potter, Jr., New York City, Fiddler, Gonzalez, Guillemard & Rodriguez, San Juan, P. R., and Sullivan & Cromwell, New York City, for appellee on memorandum in opposition to motion for stay. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. PER CURIAM. Defendant-appellant’s motion to delay discovery until after the decision of its pending appeal from the order of the district court staying arbitration is properly before us. Bernhardt v. Polygraphic Co. of America, Inc., 2 Cir., 1956, 235 F.2d 209; Mesabi Iron Co. v. Reserve Mining Co., 8 Cir., 1959, 268 F.2d 782. We believe it should be granted. We do not rest this decision on the ground that proceeding with discovery may involve lost motion. Rather, we feel appellee makes no satisfactory answer to appellant’s contention that a court order of discovery would be affirmatively inimical to appellee’s obligation to arbitrate, if this court determines it to have such obligation. It seems clear that if arbitration is to be had of the entire dispute, appellee’s right to discovery must be far more restricted than if the case remains in a federal court for plenary trial of the issue of fraud. Application of Katz, 1957, 3 A.D.2d 238, 160 N.Y.S.2d 159; Stiller Fabrics, Inc. v. Michael Saphier Associates, Inc., 1956, 1 Misc.2d 787, 148 N.Y.S.2d 591; Commercial Solvents Corp. v. Louisiana Liquid Fertilizer Co., D.C.S.D.N.Y.1957, 20 F.R.D. 359 (United States Arbitration Act, 9 U.S.C.A. § 1 et seq.); American Arbitration Association, Commercial Arbitration Rules § 30. We cannot avoid the thought that the principal reason appellee has for not awaiting discovery until the decision of this court is the fear that that course will be unavailable if such ruling proves to be adverse. Until it is determined whether this action has been properly brought, appellee should not receive any unnecessary fruits thereof. An order will enter allowing defendant-appellant’s motion for stay of discovery. Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_const1	114	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Harry B. HELMSLEY, Plantiff-Appellant, v. CITY OF DETROIT, MICHIGAN, a Municipal Corporation of the State of Michigan, Defendant-Appellee. No. 15134. United States Court of Appeals Sixth Circuit. July 25, 1963. Henry J. Freud, Detroit, Mich. (James P. Mattimoe, Detroit, Mich., on the brief), for appellant. Julius C. Pliskow, Detroit, Mich. (Robert Reese, Corp. Counsel, Vance G. In-galls, Irving S. Wolfe, Nick Sacorafas, Assts. Corp. Counsel, City of Detroit, Detroit, Mich., on the brief), for appellee. Before CECIL, Chief Judge, and MILLER and O’SULLIVAN, Circuit Judges. CECIL, Chief Judge. This is an appeal from a judgment of the United States District Court for the Eastern District of Michigan, Southern Division, in an action brought by the plaintiff under the Declaratory Judgment Act (Section 2201, Title 28, U.S.C.) to declare the assessments for 1960 and 1961 ad valorem taxes, on certain industrial real estate in the city of Detroit owned by plaintiff, as being in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. Harry B. Helmsley, plaintiff-appellant, and City of Detroit, defendant-appellee, will be referred to as plaintiff and defendant, respectively. The district judge acting sua sponte dismissed the complaint for lack of jurisdiction and the plaintiff appealed. The plaintiff claims jurisdiction by virtue of diversity of citizenship, the amount in controversy being in excess of $10,000, exclusive of interest and costs (Section 1332, Title 28, U.S.C.). He also claims jurisdiction by reason of the existence of a federal question under the Fourteenth Amendment to the Constitution of the United States. (Section 1331, Title 28, U.S.C.) The property in question as described :in the complaint was purchased by a partnership of which the plaintiff was a .member, for the sum of $500,000. At the time this action was commenced, the •plaintiff had succeeded to the sole ownership. We will refer to him as the owner and purchaser. The property was described as an obsolete manufacturing plant, consisting of eleven factory buildings, an office building and a power house. It had been abandoned as a manufacturing plant by Murray Corporation of America in 1954. It is alleged that the only possible present use for the property is division into small or light industrial tenancies, and that even for such purpose part of it is unusable. For the years in question, 1960 and 1961, the assessment for tax purposes was $3,532,350, of which amount $3,230,-180 was for buildings and $302,170 was for land. On the basis of this assessment, the tax burden for the year 1961 was approximately $180,000. At the current level of taxes, the plaintiff suffered a loss of $360,000 in carrying the property from April 1,1960, to July 1,1961. The plaintiff charges that the assessing officials of the city of Detroit are “wil-fully and deliberately following an intentional and systematic plan to assess the property in a wrongful manner and without any regard whatever to its true cash valuethat their method “is arbitrary, capricious and based on fundamentally unsound principles;” and that the result is “so totally unreasonable as to constitute fraud in law.” He further charges that while the assessors are wil-fully assessing his property at seven times its cash value, they are wilfully assessing most Detroit property at an average of one-third to one-half of cash value. Having exhausted all administrative remedies by timely and proper appeals to the Board of Review of the City of Detroit and to the State Tax Commission, the plaintiff sought relief in the United States District Court. The plaintiff claims that the action of the assessing officials deprives him of his property without compensation and without due process of law and denied him equal protection of the laws all in violation of the Fourteenth Amendment. The law of the state of Michigan and the city of Detroit provides that the assessment of all real and personal property for ad valorem taxes shall be uniform and at cash value. (Art. X, Secs. 3, 7, Mich.Const.; Title VI, Ch. II, Sec. 1, Charter, City of Detroit; Comp.L. Mich., 1948, Sec. 211.24, MSA Sec. 7,24) Cash value is defined as the price which could be obtained for the property at private sale and not at forced or auction sale. (Comp.L.Mich., 1948, Sec. 211.27, MSA Sec. 7.27) The plaintiff alleges that the property in question is assessed at over seven times its true cash value. The defendant filed an answer, in which it was alleged inter alia, that the plaintiff had not resorted to “the plain, available and adequate remedy at law provided” by the Michigan statutes. This question arose at a pretrial conference and since the defendant did not file a motion to dismiss the complaint the trial judge considered the question sua sponte. Section 1341, Title 28, U.S.C. (Johnson Act) provides, “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” Even though the plaintiff is not seeking to “enjoin, suspend or restrain the assessment, levy or collection of any tax under” the law of Michigan, it is the duty of a district judge to withhold relief by way of declaratory judgment where it appears that the taxpayer has an adequate remedy under state law. Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300, 63 S.Ct. 1070, 87 L.Ed. 1407. In Matthews v. Rodgers, 284 U.S. 521, 525-526, 52 S.Ct. 217, 219-220, 76 L.Ed. 447, the court said: “The scrupulous regard for the rightful 'independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may! be preserved without it. Whenever the question has been presented, this Court, has uniformly held that the mere illegality or unconstitutionality of a state or municipal tax is not in itself a ground for equitable relief in the courts of the United States. If the remedy at law is. plain, adequate and complete, the aggrieved party is left to that remedy in the state courts, from which the cause may be brought to this Court for review' if any federal question be involved.” We turn now to the state remedies. In the first instance taxable prop-' erty is assessed at its estimated true cash value. (Comp.L.Mich.1948, Sec. 211.24, MSA Sec. 7.24) This assessment is subject to review by a board of review on complaints of individual taxpayers. A further review may be had before the State Tax Commission. (Comp.L.Mich. 1948, Sec. 211.152, MSA Sec. 7.210) There is no provision for a judicial review from a decision of the commission. Its action is final. (Comp.L.Mich.1948, Sec. 211.152, MSA Sec. 7.210) Plaintiff has exhausted this avenue of relief. We do not find that review of the action of the commission by certiorari to the Supreme Court of Michigan, as suggested by counsel for the defendant, offers any real practical remedy. The cases cited by counsel in their brief do not support this procedure as an available remedy. A taxpayer may obtain relief from illegal and discriminatory taxes by injunction in cases of fraud or where jrreparable injury would result from payment of the tax. This remedy is available notwithstanding Section 211.114, Comp.L.Mich., 1948 (MSA Sec. 7.168) which provides that “[n]o injunction 'shall issue to stay proceedings for the •assessment or collection of taxes.” Wyzlic v. City of Ironwood, 365 Mich. 87, 112 N.W.2d 94; United States Cold Storage Corp. v. Detroit Board of Assessors, 349 Mich. 81, 89, 84 N.W.2d 487; Haggerty v. City of Dearborn, 332 Mich. 304, 316, 51 N.W.2d 290; Sunday Lake Iron Company v. City of Wakefield, 323 Mich. 497, 506, 35 N.W.2d 470; Twenty-two Charlotte, Inc. v. City of Detroit, 294 Mich. 275, 282, 293 N.W. 647; Sloman-Polk Co. v. City of Detroit, 261 Mich. 689, 247 N.W. 95, 87 A.L.R. 1294; Copper Range Co. v. Adams Township, 208 Mich. 209, 175 N.W. 282. The plaintiff has alleged fraud but if he is not able to establish this claim or cannot show that irreparable injury would result from payment of tire tax there is a further remedy open to him. This remedy appears to be adequate and complete. Comp.L.Mich.1948, Sec. 211.53, as amended by Pub.Acts 1962, No. 133 (MSA Sec. 7.97), provides that a taxpayer may pay the tax under protest and bring suit for recovery of the tax paid. There are many cases in Michigan in which this remedy has been invoked. Davidson v. City of Lansing, 356 Mich. 697, 97 N.W.2d 592; Naph-Sol Refining Co. v. Township of Muskegon, 346 Mich. 16, 77 N.W.2d 255; Haggerty v. City of Dearborn, 332 Mich. 304, 51 N.W. 2d 290; Helin v. Grosse Pointe Township, 329 Mich. 396, 45 N.W.2d 338; Moran v. Grosse Pointe Township, 317 Mich. 248, 26 N.W.2d 763; Hudson Motor Car Co. v. City of Detroit, 282 Mich. 69, 275 N.W. 770, 113 A.L.R. 1472; S. S. Kresge Co. v. City of Detroit, 276 Mich. 565, 268 N.W. 740, 107 A.L.R. 1258. The tenor of the opinions in these cases may be stated as follows: “Under the Constitution and laws of this State, the final arbiter of value for taxing purposes which, when it has jurisdiction, determines the same finally and conclusively, is the State tax commission.” Hudson Motor Car Co. v. City of Detroit, 282 Mich. 69, 81, 275 N.W. 770, 775. In Naph-Sol Refining Co. v. Township of Muskegon, 346 Mich. 16, 20, 77 N.W.2d 255, 257, the Court, quoting from the syllabi of S. S. Kresge Company v. City of Detroit, 276 Mich. 565, 268 N.W. 740, stated the general rule: “ ‘Assessments of properties for purposes of taxation will not be disturbed by courts unless they are so at variance with undisputed facts as to be a fraud upon the taxpayer, notwithstanding courts might disagree with conclusions of assessing officers in the exercise of their discretionary power and adopt a different figure upon the same evidence. * * * “ ‘Courts cannot substitute their judgment as to the valuation of property for the judgment of duly constituted tax authorities unless assessments are shown clearly to transgress reasonable limits, mere overvaluation or error of judgment not amounting to fraud not being enough to warrant court interference.’ ” Taxation is a legislative function and not a judicial function. It is proper therefore that courts should not substitute their judgment for that of the taxing authorities and should not interfere with them except in cases of constructive fraud. The obj ections which the plaintiff makes to the assessment of the property in the case before us, if proven, would come within the definition of fraud as given in these cases. He can preserve his constitutional rights in an action to recover taxes paid under protest and secure a review of them by the Supreme Court of the United States. Great Lakes Dredge & Dock Co. v. Huffman, supra. Under a statute of Louisiana similar to the Michigan payment under protest statute (Comp.L.Mich.1948, Sec. 211.53, MSA Sec. 7.97) the Supreme Court held that the Louisiana law afforded an adequate remedy and that “in the appropriate exercise of the court’s discretion, relief by way of a declaratory judgment should have been denied * * Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 301-302, 63 S.Ct. 1070, 1074, 87 L.Ed. 1407. At page 298 of 319 U.S., at page 1073 of 63 S.Ct. the Court said: “It is in the public interest that federal courts of equity should exercise their discretionary power to grant or withhold relief so as to avoid needless obstruction of the domestic policy of the states.” And at pages 300-301 of 319 U. S., at page 1074 of 63 S.Ct.: “With due regard for these considerations, it is the court’s duty to withhold such relief (declaratory judgment) when, as in the present case, it appears that the state legislature has provided that on payment of any challenged tax to the appropriate state officer, the taxpayer may maintain a suit to recover it back. In such a suit he may assert his federal rights and secure a review of them by this Court. This affords an adequate remedy to the taxpayer, and at the same time leaves undisturbed the state’s administration of its taxes.” We hold that this case is controlling of the issues in the case before us. Matthews v. Rodgers, supra, involved a statute of Mississippi by which a taxpayer could pay a tax under protest and bring suit in the state court for its recovery. The court held that such a procedure saves to the taxpayer his federal right and defeats the jurisdiction of federal courts to enjoin collection of the tax. Judge Starr, Senior District Judge for the Western District of Michigan, in a recent well-reasoned opinion held that the Michigan statute in question afforded a taxpayer an adequate remedy and that the District Court did not have jurisdiction over the subject matter of an action to enjoin the collection of an alleged illegal tax. Carbonneau Industries, Inc. v. City of Grand Rapids, D.C., 198 F.Supp. 629. See also Kohn v. Central Distributing Co., 306 U.S. 531, 59 S.Ct. 689, 83 L.Ed. 965. Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101, did not reverse Great Lakes Dredge & Dock Co. v. Huffman, as implied by counsel for plaintiff. In this case the court vacated the judgment of the Circuit Court of Appeals and remanded it to the District Court to be held until the state courts of Connecticut decided the questions of state law. The court indicated that the District Court had jurisdiction to entertain the complaint on its constitutional aspects for the reason that the adequacy of a remedy under the Connecticut law was uncertain. The remedy is not uncertain either in our case or the Great Lakes case. Township of Hillsborough Somerset County, N. J., v. Cromwell, 326 U.S. 620, 66 S.Ct. 445, 90 L.Ed. 358, cited by counsel for the plaintiff is not in point as distinguished by the Court. At page 629 of 326 U.S., at page 451 of 66 S.Ct. the Court said: “Thus, however the case may be viewed, the exceptional circumstances which we have noted take it out of the general rule of Great Lakes Dredge & Dock Co. v. Huffman, supra.” In this case a taxpayer who claimed that his taxes were too high as compared to other taxpayers of the district could not bring an action to reduce his taxes, but must sue to increase his neighbors’ taxes. The court held that this was not an adequate remedy. In the complaint the plaintiff asks the District Court to fix the assessment for real estate taxes at $500,000. Counsel argue in the brief that “a judgment for refund following payment under protest does not conclude the controversy, but simply relegates the taxpayer to ultimate re-determination of the tax assessment by an administrative tribunal from whose decisions, made within its broad statutory jurisdiction, there is no appeal to a court.” We do not think it is the function of any trial court, having jurisdiction to hear plaintiff’s complaint, to specifically fix the amount of the assessment on his property. The court could only find that the assessment was illegal and discriminatory and point out the reasons for its conclusion. The matter would then have to be remanded to the tax commission which has the final authority to make a reassessment consistent with the court’s decision. It would seem that administrative officers would be obligated by their oaths of office to act in accordance with judgments of the courts pointing out the illegality of their past actions. One of the claims made by plaintiff is that there is no adequate state remedy for the reason that the Michigan statute, which authorizes payment of tax under protest, does not provide for the allowance of interest in the event of a refund. This claim is not substantiated by the Michigan cases. Ready-Power Co. v. City of Dearborn, 336 Mich. 519, 58 N.W.2d 904; Standard Oil Co. v. State of Michigan, 283 Mich. 85, 276 N.W. 908; Corby v. City of Detroit, 191 Mich. 308, 158 N.W. 160; City of Grand Rapids v. Blakely, 40 Mich. 367. We conclude that the statutes of Michigan afforded the plaintiff an adequate and complete remedy for the adjudication of his claim that the assessment against his property is illegal and discriminatory. In pursuing this remedy he can assert his constitutional rights and have them finally determined in the Supreme Court of the United States. The conclusion reached by the trial judge in his opinion, reported at 205 F.Supp. 793, is correct and the judgment is accordingly affirmed. . Thomson v. City of Dearborn, 348 Mich. 300, 83 N.W.2d 329; In re Dearborn Clinic & Diagnostic Hospital, 342 Mich. 673, 71 N.W.2d 212; City of Negaunee v. State Tax Commission, 337 Mich. 169, 59 N.W.2d 136. . “Any person may pay the taxes or special assessments, or any one of the several taxes or special assessments, on any parcel or description of land, or on any undivided share thereof, and the treasurer shall note across the face of the receipt in ink any portion of the taxes or special assess-meats remaining unpaid. He may pay any tax or special assessment, whether levied on personal or real property, under protest, to the treasurer, specifying at the time, in writing, signed by him, the grounds of such protest, and such treasurer shall minute the fact of such protest on the tax roll and in the receipt given. The person paying under such protest may, within 30 days and not afterwards, sue the township for the amount paid, and recover, if the tax or special assessment is shown to be illegal for the reason shown in such protest.” . Hudson Motor Car Co. v. City of Detroit, 282 Mich. 69, 79, 275 N.W. 770, 113 A.L.R. 1472. . La.Acts 1938, Act 330, LSA-R.S. 47:1575, 47:1576, 47:2110. This statute differs from the Michigan statute in that the money paid under protest is held in a separate fund until the case is decided. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. 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. NATIONAL LABOR RELATIONS BOARD v. KAPLAN et al. No. 19. Circuit Court of Appeals, Second Circuit. Nov. 1, 1943. Jacob I. Karro, of Washington, D.C., and Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, and Sanford H. Bolz, Attys., National Labor Relations Board, all of Washington, D.C., for the Board. Herbert L. Wasserman and Wasserman & Erenstoft, all of New York City, for respondents. <■ Before L. HAND, CHASE, and CLARK, Circuit Judges. PER CURIAM. This case comes up on the usual motion for an order of this court to enforce the Board’s order directing the respondents to desist from discouraging membership in an affiliated union, and from “in any other way interfering with * * * employees in the exercise of the right to self-organization * * * and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act.” The order also reinstated one discharged employee with back pay. The respondents had resisted an earlier attempt at union organization in their factory, and when the attempt was renewed by another union nearly a year later, there was testimony which, if believed, justified the conclusion that they opposed the second effort as well. As to the discharge, the usual conflict arose whether it was due to the employee’s union activities or to her insubordination; it was possible to find either way. The first objection, being to the sufficiency of the evidence to sustain the Board’s findings, is without merit; there was “substantial” evidence, which it will serve no purpose to set out in detail. The discharged employee at the time of the hearing had obtained employment which she preferred to reinstatement with the respondents. However, she had been employed upon a probationary period of two months which had not then quite expired. The order directed the respondents to reinstate her with back pay if she applied within five days after the order issued, and if she did not, to pay her any loss of wages from her discharge until she got the new j'ob. The respondents are not content with this, because her new job was at a higher wage than she had earned with them. As we understand it, they wish to be credited with the excess from the time of her new employment until the date of the order, or at least until she declared for reinstatement. If the employee had demanded reinstatement she would have had to credit all that she had earned, because the order would then have restored her to the same position she would have been in, had she been continuously employed. But when she was not reinstated, the wrong so far as it can be measured in dollars ceased as soon as she began to earn as much elsewhere. The respondents were no more entitled to any part of her wages during the probationary period than thereafter. The respondents also object to the order because of its breadth, invoking National Labor Relations Board v. Express Publishing Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930. We have discussed this question in National Labor Relations Board v. Standard Oil Co., 2 Cir., 138 F.2d 885, handed down herewith, to which we refer. An enforcement order may pass. 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_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). E. ALBRECHT & SON, Inc., v. LANDY, Collector of Internal Revenue. No. 11598. Circuit Court of Appeals, Eighth. Circuit. Aug. 19, 1940. William H. Oppenheimer, of St. Paul, Minn. (Robert F. Leach and Oppenheimer, Dickson, Hodgson, Brown & Donnelly, all of St. Paul, Minn., on the brief), for appellant. Milford S. Zimmerman, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, Sp. Asst, to the Atty. Gen., and Victor E. Anderson, U. S. Atty., and Linus J. Hammond, Asst. U. S. Atty., both of St. Paul, Minn., on the brief), for appellee. Before GARDNER and SANBORN, Circuit Judges, and COLLET, District Judge. COLLET, District Judge. Appeal from a judgment in favor of the Collector of Internal Revenue for the District of Minnesota, on a claim for refund of manufacturers’ excise taxes. By Section 604 of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev.Acts, page 609, effective June 21, 1932, there was imposed a manufacturers’ excise tax on articles made of fur equivalent to ten per cent of the selling price. Section 619 of the same Act, 26 U.S.C.A. Int.Rev.Code, § 3441, provides that if such an article is sold at retail, on consignment, or at less than the fair market price, the tax shall be computed on the price for which such articles are sold, in the ordinary course of trade, by manufacturers or producers. Such price to be determined by the Commissioner of Internal Revenue. For seventy-seven years prior to June 21, 1932, the business now owned by E. Albrecht & Son, Inc., had been engaged in manufacturing garments made from fur. In 1915 a wholesale department was established for the purpose of promoting and handling sales to retailers. From that date forward the business was divided into three departments, consisting of (1) manufacturing, (2) wholesale, and (3) retail. All departments of the business are and were housed in the same building in St. Paul, Minnesota, with the exception of one additional retail store in Minneapolis, Minnesota. Early in 1932, it became apparent to those interested in the fur business that Congress would soon pass the manufacturers’ excise tax heretofore referred to. In an effort to avoid the payment of that tax, after the act had been passed and approved and only five days before its effective date, a new corporation was created by the owners of the existing corporation to be utilized for that purpose. In order to avoid confusion, the original corporation, appellant here, will be referred to as the Manufacturing Company. The corporation created in 1932 will be referred to as the “Selling Company’’. On June 20, 1932, the day before the effective date qf the act, by formal bill of sale all of the finished articles owned by the Manufacturing Company, together with all orders for articles uncompleted, completed but not delivered, and all orders for repair work on hand at the . time, were transferred to the Selling Company. No consideration passed from the Selling Company to the Manufacturing Company other than the transfer of the entire capital stock of the former to the latter. No profit was made by the Manufacturing Company on the transaction. It is admitted by appellant Manufacturing Company that the transfer was for the purpose of effecting a sale and transfer of all fur stock from the Manufacturing Company to the Selling Company prior to the effective date of the taxing statute thereby avoiding the tax on sales by manufacturers. Subsequent to June 20, 1932, all of the selling operations were performed by the Selling Company which did no manufacturing. The same persons served as officers of both corporations and many of the employees served both. Their salaries were allocated to each on a percentage basis. As was done before the creation of the Selling Company, each of the three departments were strictly segregated, but after the formation of the Selling Company a separate set of books was kept for that company covering the wholesale and retail operations, which operations were shown as the business of the Selling Company alone. The president of the Manufacturing Company testified that if it had not been for the passage of the excise tax act the Selling Company would probably not have been created. The public generally was not advised of its creation and merchandise continued to be sold under the trade-name of “E. Albrecht & Son” and under the trademark “Albrecht Furs.” No changes were made in bills or invoices and the use of shipping tags containing the legend," “From E. Albrecht & Son, Manufacturers of Al-brecht Furs, Founded 1855’’, continued. The Commissioner of Internal Revenue and the trial court disregarded the sale of June 20, 1932, upon the ground that the transaction was not a bona fide sale. The court entered judgment applying the tax to all articles (1) completed and in the stock of the Manufacturing Company and transferred by it to the Sales Company prior to June 21, 1932, but not actually sold and delivered prior to that date; (2) articles in the process of manufacture, together with all necessary furs and materials for the completion thereof; (3) repair jobs transferred by the June 20th conveyance which were not completed until after the effective date of the Act; and (4) repair items completed before June 21, 1932, but which were not delivered or invoiced to the customer until subsequent to that date. Although a parent corporation and its wholly-owned subsidiary may for certain purposes and under proper circumstances be treated as separate entities, the finding of the trial court that the Selling Company was merely the adjunct and instrumentality of the Manufacturing Company, organized in an attempt to avoid the excise tax applicable to manufacturers, is amply supported by the foregoing facts. The conclusion reached by the trial court that under such circumstances the parent corporation will not be permitted to use its subsidiary as a device by which it may evade its responsibilities, is the well-established rule. The trial court properly ignored the creation and existence of the Selling Company in applying the manufacturers’ excise tax. The determination of the proper amount of those taxes remains. The Commissioner of Internal Revenue computed the tax assessment against the Manufacturing Company upon the price at which completed garments were sold by the Selling Company to retail merchants. That action was approved by the trial court. The application of the price at which the Selling Company sold the garments as the basis for the computation of the tax is assailed upon the ground that this price did not represent the price at which the garments would sell, “in the ordinary course of trade, by the manufacturer (s) or producer (s) thereof,” which latter price is asserted to be the price contemplated by the statute as the basis for determining' the amount of the tax. By its finding of fact the trial court found that the alleged sales made by the Manufacturing Company to the Sales Company on June 20, 1932, and subsequently, were not made in the ordinary course of business, were not “arms-length transactions”, were at prices less than the fair market price and less than similar articles were sold in the ordinary course of trade and business. It further found that the fair market price of the goods sold by the Manufacturing Company through the Selling Company subsequent to June 20, 1932, was the market price determined by the Commissioner of Internal Revenue in his assessment against the Manufacturing Company, to-wit: where the articles were sold at retail by the Sales Company, the price at which those articles would have been sold at wholesale, shown by the books of the Manufacturing Company; and where articles were sold at wholesale by the Sales Company, the wholesale selling price obtained therefor; and where articles were sold at a sacrifice, and at less than the market wholesale selling price, a price of twenty per centum less than the selling price. If those findings are supported by any substantial evidence they will not now be disturbed on appeal. As heretofore noted, ample grounds existed for the finding that the sale of June 20, 1932, to the Selling Company was not bona fide. The same facts which justified that conclusion warrant the finding that the sale of all articles transferred by the June 20th transaction and sales subsequently made by -the Manufacturing Company to the Sales Company were not “arms-length transactions” made in the ordinary course of business. Whether those sales were at prices less than the fair market price, requires consideration of facts heretofore only incidentally referred to. An examination of the entire record discloses that the parol testimony consisted entirely of the testimony of Robert Al-brecht, president of both the Manufacturing Company and the Selling Company, and H. A. Pedersen, a Deputy Collector of Internal Revenue. The testimony of Mr. Albrecht was unequivocal and insofar as it related to this question may be summarized as follows: The business' had for many years prior to 1932 been operated through three departments, the manufacturing department, the wholesale department and the retail department. At the beginning of each season an estimate of the cost of a garment of each style and size to be manufactured in the ensuing season was made by estimating the number and cost of tanned furs necessary, and adding to that the cost of productive labor, factory overheads, and the cost of “findings” which consist of thread, buttons, inner lining, canvass backing, and other small items. The total cost of the foregoing, consisting of skins, labor, lining, findings, and factory overhead equalled what is known as the manufacturer’s cost. To that cost was added a manufacturer’s profit of 13% of the manufacturer’s cost and, (subsequent to the June 20th transaction) the excise tax of 10%, the total of which gave what was termed the manufacturer’s selling price. These items were entered in what was known as the “scale book.” The witness testified that this practice was followed generally in the fur business as the accepted method of arriving at the price at which the manufacturer sold to the wholesaler. The “scale book” price controlled although the actual cost' of each completed garment was tabulated for comparison with the estimated or “scale book” cost. Portions of the scale book, and actual cost figures of a number of garments manufactured in 1932, which were introduced as exhibits, show the actual cost and the scale book cost varying slightly, with the scale book cost universally the greater. The witness testified that the wholesale selling price was entered in the scale book- at 50% more than the manufacturer’s selling price and was the price at which this company and the fur industry generally sold at wholesale. The retail selling price was also entered in the scale book. That price was usually 20% more than the wholesale selling price. It varied with different retailers, but the witness stated that the retail price for the industry generally, where the wholesaler, like appellant, furnished much of the selling service, was, as stated, 20% more tBán the wholesale selling price. The testimony of Mr. Pedersen was devoted almost entirely to an explanation of the method followed in applying the tax-to the selling prices as shown by the books of the Selling and Manufacturing Companies. He pointed out that neither the Manufacturing Company or the Selling Company at any time made any sales to wholesalers. It is undisputed that before the creation of the Selling Company, the Manufacturing Company maintained a wholesale department to which garments were charged at the manufacturer’s scale book selling price. It also performed all of the services of a wholesaler and sold to retailers through its wholesale department at the wholesaler’s selling price. After the Selling Company was created and subsequent to the fictitious sale of June 20, 1932, the Manufacturing Company sold all of its products to the Selling Company at actual cost plus 13%, plus tax. The actual manufacturing cost plus 13% plus tax was, as heretofore stated, somewhat less than the scale book manufacturer’s selling price. Since all of appellant’s evidence on that question was to the effect that the scale book manufacturer’s selling price was the market price at which manufacturers sold, the trial court’s finding that the sales by the Manufacturing Company to the Sales Company subsequent to June 20, 1932, were at prices less than the market, price is correct upon appellant’s own theory that the scale book price was the market price. The sales made by the Manufacturing Company to-the Selling Company subsequent to June 20, 1932, being at less than the market price, paragraph (b) (3) of Section 619, supra, requires that the tax be computed “on the price for which such articles are sold, in the ordinary course of trade, by manufacturers or producers thereof, as' determined by the Commissioner.’’ Pursuant to this direction the Commissioner fixed the price at which articles such as those manufactured by appellant were sold by the manufacturer or producer in the ordinary course of trade at the wholesaler’s selling price which was the price at which the Selling Company sold to retailers. But the record contains no evidence whatever of any market price or price at which articles such as those made by appellant were sold by manufacturers in the ordinary course of business, other than the testimony of Mr. Albrecht that the scale book manufacturers’ selling price was the price at which appellant sold and at which such' articles were generally sold by manufacturers. The Commissioner’s determination and the trial court’s finding that the fair market price was, as determined by the Commissioner, the wholesale selling price by the Selling Company to the retailer is unsupported by any evidence in this record. Unless the Commissioner’s determination was arbitrary it was the duty of the trial court to uphold it. Ray Consolidated Copper Co. v. United States, 268 U.S. 373, 45 S.Ct. 526, 69 L.Ed. 1003. But the presumption in favor of the propriety of the Commissioner’s action takes flight upon the entry of proven facts. Wiget v. Becker, 8 Cir., 84 F.2d 706. The regulations promulgated under authority of the Revenue Act of 1932 do not require the action taken. Those regulations insofar as they may appear to apply are quoted in the margin. They apply to the determination of market price of goods when sold at retail or by the manufacturer to the retailer. They do not contemplate a situation such as that presented here where the record shows a well-established practice in the industry generally of a sale by the manufacturer to a wholesaler at prices customarily followed by the trade. If the inquiry was one to determine the customary selling price between the Manufacturing Company and the retailer (made through the Selling Company) or the generally established market price of the garments sold by a wholesaler to retail merchants, the conclusion reached would find support in the record. Or if, as it was held in Bourjois, Inc. v. McGowan, 2 Cir., 85 F.2d 510, the manufacturer’s selling price had theretofore been established by the manufacturer at the price obtained from the retailer, the application of the tax to the price so established would be proper. But since the tax is to be applied to the price for which appellant’s products and products similar to appellant’s, are sold in the ordinary course of trade by manufacturers or producers, and since appellant had not established its manufacturer’s selling price at the price obtained from retailers and there is no finding of the price for which appellant would have sold its products as a manufacturer in the ordinary course of trade, this cause must be reversed and remanded for determination of the latter question by the trial court and the application of the tax to the price at which appellant’s products would have sold in the usual course of trade by a manufacturer or producer. The cause is reversed and remanded for further proceedings not inconsistent herewith. Section 004, Revenue Act 1932, 26 U.S.C.A. Int.Rev.Acts, page 609. “There is hereby imposed upon the following articles, sold by the manufacturer, producer, or importer, a tax equivalent to 10 per centum of the price for which so sold: Articles made of fur on the hide or pelt or of which any such fur is the component material of chief value.” Subsection (b) Section 619, Revenue Act of 1932, 26 U.S.C.A. Int.Rev.Code, § 3441(b): “(b) If an article is— “(1) sold at retail; “(2) sold on consignment; or “(3) sold (otherwise than through an arm’s length transaction) at less than the fair market price; the tax under this title shall (if based on the price for which the article is sold) be computed on the price for which such articles are sold, in the ordinary course of trade, by manufacturers or producers thereof, as determined by the Commissioner.” Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634; Commerce Trust Co. v. Woodbury, 8 Cir., 77 F.2d 478, loc. cit. 487. Wabash Ry. Co. v. American Refrigerator Transit Co., 8 Cir., 7 F.2d 335; Commerce Trust Co. v. Woodbury, 8 Cir., 77 F.2d 478, loc. cit. 487; Bourjois, Inc., v. McGowan, 2 Cir., 85 F.2d 510; Chicago, M. & St. P. Ry. Co. v. Minneapolis Civic Ass’n, 247 U.S. 490, 38 S.Ct 553, 62 L.Ed. 1229. See Sec. 619(b) supra, note. “Regulation 46, Article 15: — The ‘fair market price’ within the meaning of the Act and these regulations is the price for which articles are sold by manufacturers at the place of manufacture or production in the ordinary course of trade and in the absence of special arrangements. Where, for any reason, a manufacturer’s sale price does not properly reflect the price for which similar articles are sold at the place of manufacture or production in the ordinary course of trade by manufacturers and the sale is not an arm’s-length transaction, the tax shall be computed upon a- fair market price. * ***** “Where a manufacturer sells articles at retail, the tax on his retail sales ordinarily will be computed upon a price for which similar articles are sold by him at wholesale. However, in such cases it must be shown that the manufacturer has an established bona fide practice of selling the same articles in substantial quantities at wholesale. If he has no such sales at wholesale, a fair market price will be determined by the Commissioner.” 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_casetyp1_7-3-3	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 "economic activity and regulation - commercial disputes". MAGNOLIA PETROLEUM CO. v. WILSON. No. 4814. United States Court of Appeals, Tenth Circuit. Aug. 13, 1954. Rehearing Denied Sept. 13, 1954. Robert W. Richards, Oklahoma City, Okl. (Earl A. Brown and Charles B. Wallace, Dallas, Tex., on the brief), for appellant. Joe B. Thompson, Ardmore, Okl., for appellee. Before BRATTON, HUXMAN and MURRAH, Circuit Judges. HUXMAN, Circuit Judge. This is an appeal from the judgment of the trial court, cancelling the undeveloped portion of appellant’s oil and gas lease. On May 12, 1917, Willie Wilson, a three-fourths blood Choctaw Indian, executed a departmental oil and gas lease to Edwin B. Cox, covering 310 acres of land situated in Sections 16, 21 and 27, Township 2 South, Range 2 West, the exact description of which need not be given. In 1920 Cox purchased 37% acres of the land covered by the lease in Section 21. On October 2, 1925, Cox assigned his lease to the Magnolia Petroleum Company, the appellant herein, less the 37% acres he had purchased in Section 21 and the 40 acres in Section 27. On April 1, 1926, Magnolia completed drilling of its well No. 1; on August 30, 1926, it completed its well No. 2; on September 21, 1926, it completed its well No. 3; on November 24,1926, it completed its well No. 4; on November 16, 1927, it completed its well No. 5; and on April 23, 1927, it completed its well No. 6. These six wells were drilled on 10-acre tracts in the Southeast Quarter of the Southeast Quarter of Section 16 and in the North one-half of the Northeast Quarter of the Northeast Quarter of Section 21, all in Township 2 South, Range 2 West, in Carter County, Oklahoma. All these wells came in as producing wells and have from the beginning been and are now producing oil. No further wells were drilled by Magnolia until 1948, after it brought in a producing well on offsetting acreage to the acreage covered by its lease in Section 21. Thereafter, appellee, Willie Wilson, demanded of Magnolia that it drill an offset on his lease, which was done. This well was finished on December 28, 1948, as a dry hole. No further or additional wells have been drilled by Magnolia since. On April 3, 1953, appellee, Willie Wilson, made a demand for additional development. In his demand he demanded that drilling operations for four additional shallow wells be begun within thirty days and that within sixty days drilling for a deep test well be commenced to explore and develop any and all strata and horizons under said land. Upon appellant’s refusal to comply with the demand, this action for cancellation of the lease was instituted. At the conclusion of the trial, the trial court indicated that the lease would not be cancelled if appellant would indicate a willingness to undertake additional development. The court requested each defendant to advise within ten days whether or not he would comply with, a conditional cancellation, granting them a reasonable time within which to begin-the drilling of a well. Being advised by each defendant that no additional dévelopment would be undertaken, the court entered judgment can-celling the leases with respect to the undeveloped portion thereof. Edwin B. Cox, who owned some of the acreage covered by the lease affected by the cancellation judgment, has not appealed. The right, duty and obligation of a lessee to diligently explore, develop and produce oil and gas from' leased premises has been the source of prolific litigation.It has received the attention of courts in almost-innumerable cases. The courts in general agree that since the problem sounds in equity the implied covenant to diligently explore, develop and produce oil and gas requires a consideration of the rights of both the lessor and the lessee, and that in the end the final determination resides with a court of equity and ’not alone with either the lessor of the lessee. The prudent operator rule is quite generally accepted as the standárd of determining the duty of a lessee to undertake ádditional development. In simple terms, it is that a lessee is not required to undertake additional development unless a prudent operator would do so, and whether a prudent operator would do so, is determined by whether there is reasonable expectation that the cost of additional wells as well as a reasonable profit on the investment might be returned. Under this rule, before a lessor may have cancellation of the undeveloped portion of a lease, he must prove not only .undue delay but also that further, development could reasonably be expected to return a profit on the investment. This places a heavy burden and in some cases almost an insurmountable burden upon a lessor seeking cancellation. Some states have relaxed the rigidity of the prudent operator rule. Since this case arises in Oklahoma, we are guided by the law of that state. In its early decisions, Oklahoma adhered to the strict prudent operator rule, but the later cases in Oklahoma clearly indicate a departuré from the strict application of the prudent operator rule. The Doss and Colpitt cases set out in Footnote 4 were analyzed in our opinion in Gregg v. Harper-Turner Oil . Co., supra, and such analysis is incorporated by reference herein. In the recent case of Texas Consolidated Oils v. Vann, 208 Okl. 673, 258 P.2d 679, 688, the Oklahoma Court referred to the Doss case as follows: “We construe our holding not to abrogate the prudent operator rule * * Like other rules of equity, the prudent operator rule is not inflexible. * * * The rationale of the cases leads us to the following conclusion: (1) Where in the Doss, McKenna, and Colpitt cases the additional development is long delayed a court of equity may, in a proper case, declare that the implied covenants of the lease for reasonable development have been breached and upon such finding cancel the undeveloped portion thereof. The decree is sustained by proof of mere lapse of time without more. (2) Where from all facts and circumstances the delay in the additional development is not long delayed, but additional development is demanded by the lessor, the reasonable operator rule will apply. Neither the lessor nor lessee is the arbiter of its application. The rule of law which this and other courts have uniformly followed is that the lessor must establish the fact that additional development in all reasonable probability will result in profit to the lessee, over and above the costs of the development.” In Trawick v. Castle-berry, supra, decided May 5, 1953, the lease sought to be cancelled was dated February, 1944. A well was drilled as a gas well. Later it ceased to produce gas and started producing oil. A small portion of the lease was taken into a unitized block. An action was brought to cancel the balance not taken in because of failure to develop. The opinion seems to make it clear that the doctrine announced in the Doss case is not repudiated but adhered to. It is pointed out that the facts in the Trawick case take it out of the rule announced in the Doss case. The court quotes from Magnolia Petroleum Company v. Rockhold, 192 Okl. 628, 138 P.2d 809, as follows: “‘Where production is obtained during the primary term of a lease, and it is disclosed that the lessee has failed and refused to fully develop the leasehold within a reasonable length of time and there has been unreasonable delay in development a prima facie case is made in an action by the lessor to cancel the undeveloped portions thereof and the burden is upon the defendant lessee to show that the lease has been developed in the manner reasonably to be expected of an operator of ordinary prudence” The court held that the undisputed evidence established that the well drilled on the acreage had not paid out and that the opinion of experienced oil men testifying was that additional wells on the lease in question would not be profitable. The court pointed out there was no conflict in the evidence. From an analysis of these cases, we conclude that the Doss case is still the rule in Oklahoma, as amplified in the Trawick case; that where there has been unreasonable delay in development a prima facie case for cancellation is made out and the burden then shifts to the lessee to establish that a prudent operator would not undertake further development. The question for determination is whether the record supports the trial court’s conclusion that, considering the equities and interest of the lessors as well as the lessees within the rule as announced by the Oklahoma Court, cancellation will be decreed. The original group of six wells were completed April 23, 1927. No further drilling operations were carried on by Magnolia until 1948, when in response to a demand for an offset well, it drilled a dry hole as an offset to a producing well it had on adjoining acreage. Thus there were twenty-one years that the lease was held without additional development. Five more years have gone by without further activity, since the drilling of the dry hole offset. Twenty-one years is a long time without additional development, when production has been brought in and, when there is added to that the five years since the drilling of the dry hole, we have a period of twenty-six years without any activity other than the required drilling of an offset well. That certainly would seem to be an unreasonable length of time. In addition we have the positive declaration of Magnolia that it does not intend to undertake additional development. In weighing Magnolia’s refusal to undertake additional development, we think it is of some significance that Magnolia owns leases offsetting the lease in question on the Northeast, East, South, and on the West of the South Half. The six wells on the lease are producing from the Deese sands. The wells range in depth from 1,365 feet to 1,623 feet. There are deeper sands in this area known as the Pre-Deese sands. Whether production might be obtained from these sands on this lease is a disputed issue of fact. No oil and gas were being produced from the deeper sands from any well in the Township in which this lease is situated, except on the West Half of Section 31. A dry hole was drilled in this formation in 1951 in the Northwest Quarter of Section 31, between the producing well and this lease. Magnolia’s expert testimony was to the effect that no production might be expected from the lower formations. However, a competent geologist testified that there are lower sands in the Pre-Deese that would probably produce oil under modern methods of production. He also testified that from his knowledge of the area there are shallow sands beside the Deese that would produce oil and that he would recommend to anyone asking his advice that the area be drilled. He further expressed his opinion that he could get the area drilled, if it were released. There is evidence of a number of dry holes around this lease at various distances therefrom. It would serve no useful purpose to describe each of these dry wells in detail. The court’s finding “that there is a probability of additional production, not only from what is known as the Deese sand in the area, but from the Pre-Deese sands,” finds support in the record. The court further found that “I am unable to find from the evidence that [the] Magnolia’at this time has a loss in the lease.” We think this finding likewise is supported by the record. The court alluded to the. fact that Magnolia’s books did not reflect the actual cost of drilling of the wells and that the cost statement included certain intangible costs, the exact nature ahd amount of which were never clearly disclosed by the evidence, and there was evidence by a competent driller that the wells could be drilled for much less than the amount set up on Magnolia's books. There remains the further fact.that Magnolia has declared positively that it does not intend to undertake further developments now or in the foreseeable future. In effect, it intends to sit on the lease, do nothing until others either prove or disprove the possibility of recovering additional oil either from shallow sands or deeper sands. It is our conclusion that the court considered the problem in the light of applicable principles of law as declared by Oklahoma and that its findings and conclusions are supported by the record. The judgment of the trial court is, therefore, affirmed. . Doss Oil Royalty Co. v. Texas Co., 192 Okl 359, 137 P.2d 934; McKenna v. Nichols, 193 Okl. 526, 145 P.2d 957; Ferguson v. Gulf Oil Corp., 192 Okl. 355,. 137 P.2d 940; Brewster v. Lanyon Zinc Co., 8 Cir., 140 F. 801; Gregg v. Harper-Turner Oil Co., 10 Cir., 199 F.2d 1. . Trust Company of Chicago v. Samedan Oil Corp., 10 Cir., 192 F.2d .282; Pelham Petroleum Co. v. North, 78 Okl. 39, 188 P. 1069; Mercer v. American Oil & Refining Co., 173 Okl. 515, 49 P.2d 101; Ramsey Petroleum Corp. v. Davis, 184 Okl. 155, 85 P.2d 427; Gregg v. Harper-Turner Oil Co., 10 Cir., 199 F.2d 1. . Ramsey Petroleum Corp. v. Davis, 184 Okl. 155, 85 P.2d 427. . Doss Oil Royalty Co. v. Texas Co., 192 Okl. 359, 137 P.2d 934;. McKenna v. Nichols, 193 Okl. 526, 145 P.2d 957; Colpitt v. Tull, 204 Okl. 289, 228 P.2d 1000; Texas Consolidated Oils v. Vann, 208 Okl. 673, 258 P.2d 679; Trawick v. Castleberry, Okl., 275 P.2d 292, decided May 5, 1953. Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"? A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below) B. disputes over government contracts C. insurance disputes D. debt collection, disputes over loans E. consumer disputes with retail business or providers of services F. breach of fiduciary duty; disputes over franchise agreements G. contract disputes - was there a contract, was it a valid contract ? H. commerce clause challenges to state or local government action I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims) J. private economic disputes (other than contract disputes) Answer:
sc_issuearea	L	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. COMMISSIONER OF INTERNAL REVENUE v. SOUTHWEST EXPLORATION CO. NO. 286. Argued January 23-24, 1956. Decided February 27, 1956. Hilbert P. Zarky argued the causes for petitioners. With him on the briefs were Solicitor General Sobeloff, Assistant Attorney General Holland and Ellis N. Slack. Melvin D. Wilson argued the cause and filed a brief for respondent in No. 286. Joseph D. Peeler entered an appearance for respondent. Harry R. Horrow argued the cause for respondent in No. 287. With him on the brief was Francis R. Kirkham. Mr. Justice Clark delivered the opinion of the Court. The Southwest Exploration Co., respondent in No. 286, contracted to develop certain oil deposits lying off the coast of California by whipstock drilling from sites located on the property of adjacent upland owners. Southwest agreed to pay to such owners 24%% of the net profits for the use of their land. Both Southwest and the upland owners sought to take the statutory depletion allowance of 27%% on this share of the profits. The Tax Court decided that Southwest was entitled to the depletion allowance, 18 T. C. 961, and the Ninth Circuit affirmed, 220 F. 2d 58. In the other case, the Court of Claims held that one of the upland owners, Huntington Beach Co., respondent in No. 287, was entitled to the depletion allowance on its share of the net income, 132 Ct. Cl. 427, 132 F. Supp. 718. We granted certiorari in both cases, 350 U. S. 818, because both-the drilling company and the upland owners cannot be entitled to depletion on the same income. We agree with the Court of Claims. The California State Lands Act of 1938 provided that the State’s offshore oil might be extracted only from wells drilled on filled lands or slant drilled from upland drill sites to the submerged oil deposits. Other provisions of the same statute required that “derricks, machinery, and any and all other surface structures, equipment, and appliances” be located only on filled lands or uplands. It was further provided that the state commission might require each prospective bidder for such a state lease to furnish, as a condition precedent to consideration of his bid, satisfactory evidence of “present ability to furnish all necessary sites and rights of way for all operations contemplated under the provisions of the proposed lease.” In 1938 California published notice of its intention to receive bids for the lease of certain oil lands pursuant to this statute. At the time Southwest — a corporation organized in 1933 but completely inactive until the transaction at issue here — did not own, lease, operate or control any of the uplands adjacent to the area of oil deposits. It is agreed that there were no filled lands available. Southwest entered into three agreements with the upland owners, and was granted the right of ingress to and egress from the designated uplands and the right to construct, use and maintain all equipment necessary for drilling on the same lands. The upland owners reserved to themselves the right to give easements or subsurface well crossings in the uplands, except that they would not allow such easements for the purpose of drilling into the offshore oil deposits while Southwest retained an interest granted to it by state easement. Southwest’s rights were expressly subject to all rights previously granted by the upland owners. The agreements defined “net profits” and provided that Southwest would pay a total of 24%% of its net profits from extraction and sale of oil to the upland owners. It was also provided that the upland owners did not acquire a share in the lease or oil deposit by virtue of the last agreement and that it was not the intention of the parties to create a partnership relationship. As a result of these agreements, the upland owners endorsed Southwest’s bid for a lease submitted to the State of California. Southwest, as the only bidder, was granted “Easement No. 392” by the State in consideration of the “royalty to be paid, the covenants to be performed, and the conditions to be observed by the Grantee.” One such condition was that set out in paragraph (1): “That each well drilled pursuant to the terms of this agreement shall be slant drilled from the uplands to and into the subsurface of the State lands. Derricks, machinery, and any and all other surface structures, equipment and appliances shall be located only upon the uplands and all surface operations shall. be conducted therefrom.” The agreement further provided that, if Southwest should “default in the performance or observance of any of the terms,' covenants and stipulations hereof,” the State might re-enter, cancel the agreement or close down wells not being operated according to the agreement. The wells drilled pursuant to this lease have produced oil continuously since 1939. In No. 286, Southwest Exploration Co., the tax years 1939 through 1945 are involved. If Southwest may claim the depletion allow-anee on the upland owner’s share of the profits during this period, its tax liability is reduced by approximately $175,000. In No. 287, Huntington Beach Co., the upland owner is claiming a tax refund of $135,000 for the year 1948 alone. An allowance for depletion has been recognized in our revenue laws since 1913. It is based on the theory that the extraction of minerals gradually exhausts the capital investment in the mineral deposit. Presently, the depletion allowance is a fixed percentage of gross income which Congress allows to be excluded; this exclusion is designed to permit a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired. The present allowance, however, bears little relationship to the capital investment, and the taxpayer is not limited to a recoupment of his original investment. The allowance continues so long as minerals are extracted, and even though no money was actually invested in the deposit. The depletion allowance in the Internal Revenue Code of 1939 is solely a matter of congressional grace; it is limited to 27%% of gross income from the property after excluding from gross income “any rents or royalties” paid by the taxpayer with respect to the property. The complexities of oil operations and risks incident to prospecting have led to intricate, multiparty transactions, so that it is often difficult to determine which parties are entitled to a part of the allowance. The statute merely provides in § 23 (m) that in the case of leases the depletion allowance should be "equitably apportioned between the lessor and lessee.” In determining which parties are entitled to depletion on oil and gas income, this Court has relied on two interrelated concepts which were first formulated in Palmer v. Bender, 287 U. S. 551. There, the taxpayer, a lessee of certain oil and gas properties, had transferred his interest in these properties to two oil companies in return for a cash bonus, a future payment to be made “out of one-half of the first oil produced and saved,” and an additional royalty of one-eighth of the oil produced and saved. In upholding the taxpayer’s right to depletion on all such income, the Court based its decision on the grounds that a taxpayer is entitled to depletion where he has: (1) “acquired, by investment, any interest in the oil in place,” and (2) secured by legal relationship “income derived from the extraction of the oil, to which he must look for a return of his capital.” 287 U. S., at 557. These two factors, usually considered together, constitute the requirement of “an economic interest.” This Court has found the requisite interest in the oil in place to have been retained by the assignor of an oil lease, Thomas v. Perkins, 301 U. S. 655, the lessor of oil properties for a share of net profits, Kirby Petroleum Co. v. Commissioner, 326 U. S. 599, and the grantor of oil lands considered as an assignor of drilling rights, Burton-Sutton Oil Co. v. Commissioner, 328 U. S. 25. The Court found no such interest in the case of a processor of natural gas who had only contracted to buy gas after extraction, Helvering v. Bankline Oil Co., 303 U. S. 362, and in the case of a former stockholder who had traded his shares in a corporation which owned oil leases for a share of net income from production of the leased wells, Helvering v. O’Donnell, 303 U. S. 370. The second factor has been interpreted to mean that the taxpayer must look solely to the extraction of oil or gas for a return of his capital, and depletion has been denied where the payments were not dependent on production, Helvering v. Elbe Oil Land Co., 303 U. S. 372, or where payments might have been made from a sale of any part of the fee interest as well as from production. Anderson v. Helvering, 310 U. S. 404. It is not seriously disputed here that this requirement has been met. The problem revolves around the requirement of an interest in the oil in place. It is to be noted that in each of the prior cases where the taxpayer has had a sufficient economic interest to entitle him to depletion, he has once had at least a fee or leasehold in the oil-producing properties themselves. No prior depletion case decided by this Court has presented a situation analogous to that here, where a fee owner of adjoining lands necessary to the extraction of oil is claiming a depletion allowance. Southwest contends that there can be no economic interest separate from the right to enter and drill for oil on the land itself. Since the upland owners did not themselves have the right to drill for offshore oil, it is argued that respondent — who has the sole right to drill — has the sole economic interest. It is true that the exclusive right to drill was granted to Southwest, and it is also true that the agreements expressly create no interest in the oil in the upland owners. But the tax law deals in economic realities, not legal abstractions, and upon closer analysis it becomes clear that these factors do not preclude an economic interest in the upland owners. Southwest’s right to drill was clearly a conditional rather than an absolute grant. Without the prior agreements with the upland owners, Southwest could not even have qualified as a bidder for a state lease. Permission to use the upland sites was the express condition precedent to the State’s consideration of Southwest’s bid, and it was one of the express conditions on which “Easement No. 392” was granted to Southwest. For a default in that condition the State retained the right to re-enter or to cancel the lease. Thus it is seen that the upland owners have played a vital role at each successive stage of the proceedings. Without their participation there could have been no bid, no lease, no wells and no production. But Southwest contends that the upland owners here contributed merely property which was useful but not necessary to the drilling operation. The facts are to the contrary. State law required that the wells be drilled either on the uplands or on filled lands, and there were no filled lands available. By hindsight Southwest now suggests that it might have constructed a drilling island which might have been considered as filled land under the statute. Then, too, perhaps the State itself might have changed the law or condemned the uplands under existing law. But none of these possibilities occurred. The fact is that the drilling arrangement was achieved and oil produced in the only way that it could have been, consistent with state law and the express requirements of the State’s lease. Recognizing that the law of depletion requires an economic rather than a legal interest in the oil in place, we may proceed to the question of whether the upland owners had such an economic interest here. We find that they did. Proximity to the offshore oil deposits and effect of the state law combined to make the upland owners essential parties to any drilling operations. This controlling position greatly enhanced the value of their land when extraction of oil from the State’s offshore fields became a possibility. The owners might have realized this value by selling their interest for a stated sum and no problem of depletion would have been presented. But instead they chose to contribute the use of their land in return for rental based on a share of net profits. This contribution was an investment in the oil in place sufficient to establish their economic interest. Their income was dependent entirely on production, and the value of their interest decreased with each barrel of oil produced. No more is required by any of the earlier cases. Southwest contends, finally, that if depletion is allowed to the upland owners in this case, it would be difficult to limit the principle in instances of strangers “disassociated from the lease” who may have contributed an essential facility to the drilling operation in return for a share of the net profits. But those problems are not before us in this case where the upland owners could hardly be said to be “disassociated from the lease.” We decide only that where, in the circumstances of this case, a party essential to the drilling for and extraction of oil has made an indispensable contribution of the use of real property adjacent to the oil deposits in return for a share in the net profits from the production of oil, that party has an economic interest which entitles him to depletion on the income thus received. For the foregoing reasons the judgment in No. 286, as to Southwest Exploration Company, is reversed and that in No. 287, as to Huntington Beach Company, is affirmed. No. 286, Reversed. No. 287, Affirmed. Mr. Justice Douglas dissents. Mr. Justice Harlan took no part in the consideration or decision of these cases. In the courts below, the Commissioner took technically inconsistent positions, opposing the depletion allowance in both cases and losing in both. Before this Court the Commissioner urged that depletion be denied the drilling company and allowed to the upland owners on the latter’s 24%% of net profits. Cal. Stat. (Extra Session 1938), c. 5, § 87, Id., § 89. This share was the total of the following percentages of net profits to be paid to the three upland owners: 17.75% to Huntington Beach Company. 1.576% to Pacific Electric Railway Company. 5.174% to Pacific Electric Land Company. For the tax years 1942 through 1946, Huntington Beach Company claimed and was allowed to deduct depletion on its share of the net profits. The United States is seeking recovery of this money in a suit now pending in the United States District Court for the Northern District of California, Southern Division. The amount at issue there is something over $500,000. Pertinent sections of the Internal Revenue Code of 1939 provide : “Sec. 23. DEDUCTIONS FROM GROSS INCOME. “In computing net income there shall be allowed as deductions: “(m) Depletion. — In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. ... In the ease of leases the deductions shall be equitably apportioned between the lessor and lessee. . . . “For percentage depletion allowable under this subsection, see section 114 (b), (3) and (4).” 53 Stat. 12, 14, 26 U. S. C. §23. “Sec. 114. BASIS FOR DEPRECIATION AND DEPLETION. “(b) Basis for DepletioN. “(3) Percentage DEPLETION for oil and gas wells. In the case of oil and gas wells the allowance for depletion under section 23 (m) shall be 27% per centum of the gross income from the property during the taxable year, excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 per centum of the net income of the taxpayer (computed without allowance for depletion) from the property, except that in no case shall the depletion allowance under section 23 (m) be less than it would be if computed without reference to this paragraph.” 53 Stat. 45, 26 U. S. C. § 114. 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:
sc_petitionerstate	12	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. WAINWRIGHT, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS v. TORNA No. 81-362. Decided March 22, 1982 Per Curiam. Respondent is in custody pursuant to several felony convictions that were affirmed by the Third District Court of Appeal of Florida. Torna v. State, 358 So. 2d 1109 (1978). The Florida Supreme Court dismissed an application for a writ of certiorari, on the ground that the application was not filed timely. 362 So. 2d 1057 (1978). A petition for rehearing and clarification was later denied. App. to Pet. for Cert. A-15. Respondent thereafter filed a petition for habeas corpus in the United States District Court for the Southern District of Florida, contending that he had been denied his right to the effective assistance of counsel by the failure of his retained counsel to file the application for certiorari timely. The District Court denied the petition on the ground that the failure to file a timely application for certiorari did not render counsel’s actions “so grossly deficient as to render the proceedings fundamentally unfair.” Id., at A-22. In reaching this conclusion, the District Court noted that review by the Florida Supreme Court was discretionary; “[fjailure of counsel to .timely petition for certiorari to the Supreme Court, therefore, only prevented [respondent] from applying for further discretionary review.” Id., at A-28. The Court of Appeals reversed. 649 F. 2d 290 (CA5 1981). In Ross v. Moffitt, 417 U. S. 600 (1974), this Court held that a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for review in this Court. Respondent does not contest the finding of the District Court that he had no absolute right to appeal his convictions to the Florida Supreme Court. Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsel’s failure to file the application timely. The District Court was correct in dismissing the petition. The motion of respondent for leave to proceed informa pauperis is granted. The petition for writ of certiorari is granted, and the judgment of the Court of Appeals is therefore reversed. It is so ordered. Justice Brennan would set the case for oral argument. “It appearing to the Court that the notice was not timely filed, it is ordered that the cause is hereby dismissed sua sponte, subject to reinstatement if timeliness is established on proper motion filed within fifteen days from the date of this order. See Fla. R. App. P. 9.120.” App. to Pet. for Cert. A-13. Citing its decision in Pressley v. Wainwright, 540 F. 2d 818 (1976), cert. denied, 430 U. S. 987 (1977), the court first noted that “the failure of court-appointed counsel to file a timely notice of certiorari in the Florida Supreme Court has been held to constitute ineffective assistance.” 649 F. 2d, at 291. On the basis of the recent decision in Cuyler v. Sullivan, 446 U. S. 335 (1980), the court then stated that “there is no distinction between court-appointed and privately retained counsel in the evaluation of a claim of ineffective assistance.” 649 F. 2d, at 292. Finally, the court quoted its recent decision in Perez v. Wainwright, 640 F. 2d 596, 598 (1981), for the proposition that “‘when a lawyer . . . does not perform his promise to his client that an appeal will be taken, fairness requires that the deceived defendant be granted an out-of-time appeal.’ ” 649 F. 2d, at 292. On the basis of these statements, the court reversed “the district court’s denial of the writ of habeas corpus,” ibid., and remanded the case to the District Court for further proceedings consistent with its opinion. Like this Court, the Florida Supreme Court has a limited mandatory appellate jurisdiction. See Fla. Const., Art. V, §3. Respondent has never contended, however, that he had a right of review under that jurisdiction. Thus, we need not determine the extent of the right to counsel in such a case. Respondent was not denied due process of law by the fact that counsel deprived him of his right to petition the Florida Supreme Court for review. Such deprivation — even if implicating a due process interest — was caused by his counsel, and not by the State. Certainly, the actions of the Florida Supreme Court in dismissing an application for review that was not filed timely did not deprive respondent of due process of law. Question: What state is associated with the petitioner? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_appfed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MARION MANUFACTURING COMPANY, Respondent. No. 11353. United States Court of Appeals Fourth Circuit. Argued Nov. 8, 1967. Decided Jan. 3, 1968. Edith Nash, Atty., N.L.R.B. (Arnold Ordman, Gen. Counsel, Dominick L. Man-oli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Michael N. Sohn, Atty., N.L.R.B., on the brief), for petitioner. Ernest W. Machen, Jr., Charlotte, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C., on the brief), for respondent. Before HAYNSWORTH, Chief Judge, and SOBELOFF and BRYAN, Circuit Judges. PER CURIAM: The National Labor Relations Board here seeks enforcement of its order, 161 NLRB No. 21, issued on October 18, 1966. Respondent, a manufacturer of textile products, contests the order, and prays that the Board’s petition be denied. The Board found the company guilty of violating sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., in its opposition to the efforts of the United Textile Workers of America, AFL-CIO, to become the representative of its employees. The company concedes that the Board’s findings of 8(a)(1) violations were, in some instances, supported by substantial evidence, but argues that the 8(a)(3) infractions are without foundation in the record. The Board concluded that the company had discharged two employees, Russell and Rumfelt, for participating in protected union activities. We cannot say that this conclusion, which establishes 8(a)(3) infractions, is not supported by substantial evidence in the record. Russell was discharged within a week after the company learned of his union activities, in circumstances which provided substantial evidence of improper motive. Rumfelt was discharged for violating the company’s no-solicitation rule. The Trial Examiner found that Rumfelt did not in fact violate the rule, and we cannot conclude that his finding was not supported by substantial evidence. Accordingly, under the doctrine of NLRB v. Burnup & Sims, 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964), the company’s action amounted to an 8(a) (3) infraction. In the circumstances we have no reason to appraise the validity of the rule, and we do not. Therefore the Board’s petition is granted. Order enforced. 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:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNITED STATES of America, ex rel. Vito RIZZI, Petitioner-Appellant, v. Hon. Harold W. FOLLETTE (Successor to Hon. Edward M. Fay), Warden, Green Haven Prison, Stormville, New York, Respondent-Appellee. No. 39, Docket 29689. United States Court of Appeals Second Circuit. Argued Sept. 21, 1966. Decided Oct. 24, 1966. Anthony F. Marra, Joshua N. Koplovitz, New York City, for petitioner-appellant. Brenda Soloff, Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen. of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., for respondent-appellee. Before LUMBARD, Chief Judge, WATERMAN and ANDERSON, Circuit Judges. WATERMAN, Circuit Judge. Appellant was convicted of murder in the first degree in the New York County Court of General Sessions in 1945 and was sentenced to life imprisonment. The conviction was affirmed by the Appellate Division, First Department, 270 App. Div. 832, 61 N.Y.S.2d 607 (1946) and the Court of Appeals, 297 N.Y. 874, 79 N.E. 2d 274 (1948). In 1960 Rizzi brought a coram nobis proceeding in General Sessions on the same grounds alleged here. The petition was denied without a hearing, 26 Misc.2d 977, 208 N.Y.S.2d 400 (1960), the Appellate Division, First Department, affirmed, 18 App.Div.2d 785, 236 N.Y.S.2d 939 (1963), and leave to appeal to the New York Court of Appeals was denied by Judge Fuld of that court. The Supreme Court denied certiorari sub nom. Rizzi v. LaVallee, 375 U.S. 849, 84 S.Ct. 104, 11 L.Ed.2d 76 (1963). Appellant then petitioned the court below for the issuance of a writ of habeas corpus; Judge Cannella carefully examined the trial record and denied the petition without a hearing. Rizzi appeals. We affirm the order below. Rizzi seeks relief from his 1945 conviction on two grounds. He claims that the trial judge improperly refused to appoint a commission to determine whether he was capable of understanding the proceedings against him and of making his defense to the capital crime with which he was charged, and also that the prosecutor suppressed material facts relating to his competence. It appears from the uncontroverted record that on the third day of Rizzi’s trial his counsel, out of the presence of the jury, moved for the appointment of a commission to examine whether Rizzi was competent to continue with the trial. The grounds for the motion were based on an incident which occurred a few minutes before the motion was made. During a trial recess one of Rizzi’s counsel had occasion to go to the cell block where Rizzi was being confined. He observed Rizzi reading a newspaper, smiling at some pictures in the news, and “totally oblivious to what he was facing in [the] courtroom.” Astonished by this lack of concern, counsel asked Rizzi if he had ever been confined in an institution and Rizzi replied that he had been confined in Letchworth Village (an institution for mental defectives) from the time he was ten years old until he reached his fourteenth or fifteenth year, and that the authorities there had told him that he had a mental age then of three. In disposing of the motion the state trial judge noted that Rizzi was 34 years old, that he had served in the army and that he had been discharged for physical, not mental, disability. He found that the childhood confinement in a mental institution was not, of itself, sufficient to warrant appointment of a commission to examine Rizzi. He did, however, arrange to have Rizzi examined by one Dr. Lichtenstein, a psychiatrist and medical assistant to the District Attorney of New York County. Dr. Lichtenstein found Rizzi to be of a “high grade moron” type. His report to the court indicated that Rizzi was competent to stand trial. No other evidence indicating Rizzi’s lack of competence was presented to the court and the motion for the appointment of a commission was never renewed. No plea that Rizzi was insane was ever entered on Rizzi’s behalf. Section 658 of the New York Code of Criminal Procedure provides: § 658 Court order for examination as to sanity of defendant. If at any time before final judgment it shall appear to the court having jurisdiction of the person of a defendant indicted for a felony or a misdemeanor that there is reasonable ground for believing that such defendant is in such state of idiocy, imbecility or insanity that he is incapable of understanding the charge, indictment or proceedings or of making his defense, or if the defendant makes a plea of insanity to the indictment, instead of proceeding with the trial, the court, upon its own motion, or that of the district attorney or the defendant, may in its discretion order such defendant to be examined to determine the question of his sanity. Appellant claims the failure to appoint a commission under § 658 deprived him of due process of law under the Fourteenth Amendment. Conviction of a defendant while he is legally incompetent does indeed violate due process. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956). As the Supreme Court held in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), state procedures must adequately protect this right. On the showing made at Rizzi’s trial, however, we do not believe that due process required the appointment of a commission under § 658. There is a marked distinction between the facts tending to show incompetency in Pate v. Robinson, supra, and in the instant case. In Robinson, there was the uncontradicted testimony of four witnesses that Robinson had had a long history of disturbed behavior which had extended from his childhood to within a year or so of his trial, and his trial defense was based on his insanity. In this case, however, the fact that Rizzi during a portion of his minority had been committed to a mental institution and had been discharged therefrom about twenty years before the trial, and the fact that on the third trial day he momentarily seemed to one of his attorneys to be “totally oblivious to what he was facing,” do not appear sufficient to require, as a matter of due process, that the trial judge at that stage of the trial should have appointed a commission to determine Rizzi’s competency to continue. Also, the record indicates that the trial court invited the defense to present further evidence if they wished to pursue the point, and that none was presented. We agree with the federal judge below that there was no violation of appellant’s right to due process under the Fourteenth Amendment. Appellant’s other claim, that the failure of the prosecutor to inform his counsel of his confinement in Letch-worth was a suppression of evidence, deserves but little attention. Although commitments to public institutions may be matters of public record, there is no evidence that the prosecutor who presented the case against Rizzi was actually aware of Rizzi’s juvenile commitment. In the absence of such knowledge there could be no bad faith suppression. In any event, the defense counsel learned about the commitment during the trial in time to make use of it to the defendant’s advantage. Affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_typeiss	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. Melvina WILMORE and Brenda Mae Thomas, Appellants, v. UNITED STATES of America, Appellee. Nos. 77-1115, 77-1116. United States Court of Appeals, Third Circuit. Argued Oct. 3, 1977. Decided Nov. 10, 1977. Wilfred J. Ritz, Director, Alderson Legal Assistance Program, Washington and Lee School of Law, Lexington, Va., for appellants. James W. Garvin, Jr., U. S. Atty. by John H. McDonald, Asst. U. S. Atty., Wilmington, Del., for appellee. Before GIBBONS and WEIS, Circuit Judges, and MEANOR, District Judge. H. Curtis Meanor, United states District Judge for the District of New Jersey, sitting by designation. OPINION OF THE COURT MEANOR, District Judge. This is an appeal from the refusal of the district court to honor appellants’ motions to vacate their sentences for violation of 18 U.S.C. § 371, which were imposed pursuant to the Narcotic Addict Rehabilitation Act (NARA), 18 U.S.C. § 4251 et seq. The issue concerns the propriety of imposing a NARA sentence in the absence of the defendant following receipt of a NARA study report which recommends that the offender be accorded NARA treatment. In an unreported opinion, relying upon his previous decision in Taylor v. United States, 389 F.Supp. 766 (D.Del.1975), the district judge declined to vacate the NARA sentences and to re-sentence. Because we believe Taylor was incorrectly decided, we reverse. Both appellants were indicted for conspiracy to commit armed bank robbery, 18 U.S.C. § 371, and for the substantive offense, 18 U-S.C. § 2113(d). Thereafter, pursuant to a plea agreement, they each pleaded guilty to a charge of conspiracy to commit bank larceny, 18 U.S.C. §§ 371 and 2113(b), and the government agreed to recommend that they each be sentenced under NARA. Following entry of their pleas of guilty, each appellant was placed in custody for the examination provided by 18 U.S.C. § 4252 which had as its object to determine whether appellants were addicts and were likely to be rehabilitated through treatment. This study was conducted at the Federal Correctional Institution, Alderson, West Virginia. Either on or before May 17, 1976 the district court received the NARA reports concerning appellants. As to each, the report stated that the appellants were addicts; that they were likely to be rehabilitated through treatment and that adequate facilities were available to treat them. On that day, the district court sentenced each to an indeterminate term of five years’ imprisonment under 18 U.S.C. § 4253(a). The uniform course of decisions concerning the length of confinement on a NARA sentence is to the effect that if the crime which leads to the sentence carries a penalty of 10 years or more, the indeterminate term to be imposed must be of 10 years’ duration. However, if the offense carries a lesser penalty, the NARA term must be an indeterminate term equal to the maximum penalty that could be imposed on a regular term sentence for that offense. Accordingly, the district court, once a determination had been made to impose a NARA sentence, had no alternative but to impose the five year maximum indeterminate term. The crux of this appeal lies in the fact that the district court did not sentence appellants in their presence. Instead, the court entered final judgments of conviction and commitment and notified appellants thereof by mail. Imposing sentence in this fashion, it is argued, violated appellants’ right pursuant to F.R.Cr.P. 43(a) to be present at the imposition of sentence and further deprived them of the right of allo-cution contrary to F.R.Cr.P. 32(a)(1) and United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963). The rationale of the district court’s opinion in Taylor and its unreported opinion below is that once the court receives a NARA report, pursuant to 18 U.S.C. § 4252, that the offender “is an addict and is likely to be rehabilitated through treatment,” the court has no discretion but must proceed with a NARA sentence pursuant to 18 U.S.C. § 4253. On this construction of § 4253, coupled with the fact that a NARA sentence always must be for an indeterminate maximum, the court below appears to have been of the opinion that a formal sentencing proceeding would be supererogatory, for the result of such a proceeding would be inevitable. We cannot accept the district court’s construction of § 4253 and hold that, no matter the contents of the NARA report, a trial court is not bound thereby, and that the disposition of the offender remains subject to the discretion of the district court. The two Courts of Appeals that have considered this issue have so held. In United States v. Arellanes, 503 F.2d 808 (9th Cir. 1974), the court received a NARA report finding defendant to be an addict and that he was likely to be rehabilitated through treatment. Nonetheless, the district court imposed a regular term sentence. The Ninth Circuit held flatly that the sentencing court was not bound by the NARA report, but that the determination whether the defendant met the prerequisites for a NARA sentence “is clearly left to the discretion of the trial court” (503 F.2d at 809) pursuant to 18 U.S.C. § 4253. To like effect is United States v. Williams, 157 U.S.App.D.C. 355, 484 F.2d 835 (1973) which presents the factual converse of Arellanes. There, the trial judge believed that the defendant, an addict, would benefit from treatment. There was, however, a contrary NARA report, and the court, believing that it could not sentence to NARA treatment in the face of such a report, imposed regular term sentences. The Court of Appeals vacated the sentences imposed and remanded for re-sentence. The court stressed that the determination whether the NARA sentencing prerequisites have been met (i. e., addiction and the likelihood of rehabilitation through treatment) is a judicial one. Only when the court finds that these requirements exist does a NARA sentence become a required one. Williams, supra. It is thus apparent that the conclusions of a NARA report rendered pursuant to 18 U.S.C. § 4252 are not binding upon the sentencing court. The report is, of course, an aid in making the determinations required by 18 U.S.C. § 4253, but is not conclusive. And until the court makes the determinations required by § 4253, no sentence can take place. A court may not make the required findings preliminary to a NARA sentence until the NARA report is received. Then and only then can sentence be imposed. By imposing sentence in the absence of appellants, the court below departed from the commands of F.R.Cr.P. 32(a)(1) and 43(a). In mandating that the appellants be present for the imposition of sentence, we do not thereby require the district court to indulge in an idle gesture. The' Government’s agreement to recommend a NARA sentence was not binding upon the district court. F.R.Cr.P. 11(e)(1)(B). Defendants were free to argue that a regular not a NARA sentence should be imposed and were also free to contest the existence of the factual prerequisites to a NARA sentence. More important, although this case involved a plea bargain in which the Government agreed to recommend a NARA sentence, Taylor, supra, did not. Manifestly, a defendant who has not bargained for a NARA sentence has an abiding interest in an opportunity to contest the imposition of such a sentence. In many cases, since the NARA indeterminate sentence must be 10 years or the maximum carried by the offense if that maximum is less, NARA sentences, from the point of view of required release date, will far exceed the regular term sentence that otherwise might be imposed. A defendant might well have an interest in seeking a shorter regular term sentence rather than the longer indeterminate term required by NARA. Also, since a NARA sentence depends upon preliminary findings, a defendant has the right to be heard with reference to those findings, for events of significance to him depend upon them. From what we have written, it is plain that Taylor, supra, can no longer be considered viable. The judgment below is reversed and the matter is remanded to the district court with directions to vacate appellants’ sentences and to bring them before the court for re-sentence. . In order to qualify appellants for a NARA sentence, it was necessary to have them plead to a superseding information charging conspiracy to commit bank larceny. Persons guilty of bank robbery or conspiracy to commit it are not eligible offenders under NARA and may not be sentenced pursuant to its terms. 18 U.S.C. § 4251. See Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974). . 18 U.S.C. § 4253 provides: (a) Following the examination provided for in section 4252, if the court determines that an eligible offender is an addict and is likely to be rehabilitated through treatment, it shall commit him to the custody of the Attorney General for treatment under this chapter, except that no offender shall be committed under this chapter if the Attorney General certifies that adequate facilities or personnel for treatment are unavailable. Such commitment shall be for an indeterminate period of time not to exceed ten years, but in no event shall it exceed the maximum sentence that could otherwise have been imposed. (b) If, following the examination provided for in section 4252, the court determines that an eligible offender is not an addict, or is an addict not likely to be rehabilitated through treatment, it shall impose such other sentence as may be authorized or required by law. . The leading case is Baughman v. United States, 450 F.2d 1217 (8th Cir. 1971), cert. den., 406 U.S. 923, 92 S.Ct. 1791, 32 L.Ed.2d 123 (1972) . Other cases so holding are: United States v. Curtis, 173 U.S.App.D.C. 185, 523 F.2d 1134 (1975); United States v. Watkins, 330 F.Supp. 792 (D.D.C.1971), aff’d without opinion, 154 U.S.App.D.C. 308, 475 F.2d 419 (1973) . See also United States v. Bishop, 487 F.2d 631 (1st Cir. 1973). (Note that the initial decision in Bishop, 469 F.2d 1337 (1st Cir. 1972), has been overruled by Marshall v. United States, supra, n.1.) . We reject the argument that this case and Taylor are controlled by United States v. Curtis, supra, n.3. In Curtis, the defendant waived the necessity of appearance at sentence in the event that after receipt of the NARA report the court determined to impose a NARA sentence. Although waiver was mentioned during the initial proceedings below, it is clear that the appellants never waived their right to be present at the time of sentence. We imply neither acceptance nor rejection of the Curtis thesis that, at least in NARA cases, the defendant may waive the right to be present at sentence. That question is not before us. 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_genstand	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 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". DE VRY CORPORATION v. ACME MOTION PICTURE PROJECTOR CO. (three cases). (Circuit Court of Appeals, Seventh Circuit. December 8, 1925.) Nos. 3566-3568. Patents <©=>328 — No. 1,287,576, claims 1-4, No. 1,303,542, claims 1-8, No. 1,303,543, claims 1-10, 17, 18, for motion picture projectors, held invalid for lack of invention. Patents No. 1,287,576, claims 1-4, No. 1,303,-542, claims 1-8, No. 1,303,543, claims 1-10, 37, 3.8, for motion picture projectors, held invalid for lack of invention. Appeals from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suits hv the De Vry Corporation against the Acme Motion Picture Projector Company. Decrees for defendant, and plaintiff appeals. Affirmed. Fred Gerlach, of Chicago, Ill., for appellant. Luther Johns, of Chicago, Ill., for appellee. Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge. These appeals were heard together on one record. The claims relied on in No. 3566 are 1, 2, 3, and 4 of patent No. 1,287,576, in No. 3567 1 to 8 of patent. No. 1,303,542, and in No. 3568 1, 2, 3, 4, 5, 6, 7, 8, 9,10,17, and 18 of patent No. 1,303,543, all"issued to the appellant as assignee of Herman De Vry. The court below dismissed all the bills for want of equity. . The patents relate to motion picture projectors, and have for their object the production of a kind of projector known as the suit case, or self-contained, type. Appellant contends that “the patents in suit are for the first successfully self-contained, or suit case, portable projector.” All of the elements of the claims are old. The invention is said to reside in the combination of those elements. The insistence is that De Vry was the first p.erson to successfully put these elements into a practicable portable container.- Each element functions in the container just as it does when not in a container. The bringing together of these elements and arranging them so that they are ready, while in the container, to perform their old and well-known functions, is not invention. It is mere aggregation. The deeree is affirmed. 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_opinstat	A	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 BANK OF COMMERCE OF PORTLAND, Executor, Plaintiff, Appellant, v. Clinton A. CLAUSON, Collector, Defendant, Appellee. No. 4971. United States Court of Appeals First Circuit. Nov. 2, 1955. Jotham D. Pierce, Portland, Me., Leonard A. Pierce, Portland, Me., on the brief; Hutchinson, Pierce, Atwood & Scribner, Portland, Me., of counsel, for appellants. Frank E. A. Sander, Sp. Asst, to Atty. Gen., H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Washington, D. C., and Peter Mills, U. S. Atty., Portland, Me., on the brief for appellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. WOODBURY, Circuit Judge. This is an appeal by a bank acting in the capacity of an executor from a judgment in a suit brought by it against a Collector of Internal Revenue to recover estate taxes. The only question presented is whether the plaintiff-executor’s decedent, Isabelle C. Harmon, was a transferor within the meaning of § 811 (d) of the Internal Revenue Code of 1939 as to one-third of a certain inter vivos trust created in January 1926. The facts were stated in full detail by the District Court. See 127 F.Supp. 386. It will suffice only to summarize them here. Isabelle C. Harmon, the plaintiff’s decedent, who will be referred to hereinafter simply as the decedent, was the second wife and the widow of one Charles C. Harmon who died testate, in Portland, Maine, on December 9, 1923. His survivors, in addition to his widow, were two daughters by his first marriage, one of whom was married and the mother of two children. Charles C. Harmon in his will left practically his entire estate, which consisted of the controlling stock interest in Loring, Short, and Harmon, the leading stationery, office supply, and book store in Portland, and about $82,000 in other assets, in trust. He named his widow, and two of his business associates, one of whom was his son-in-law and the father of his grandchildren, as trustees, and provided that in case of the death or resignation of a trustee his or her place was to be filled by the surviving trustees. The trust was to continue until twenty years after the widow’s death, but could be sooner terminated by the unanimous consent of the trustees. One-third of the net income of this trust was to be paid to the widow for her life, “in lieu of any other interest whatsoever” in her husband’s estate. Except for this life interest of the widow the trust income was to be paid to the two daughters, share and share alike, the issue of a deceased daughter to take by representation, and in the event a daughter died without issue the survivor to take all. No provision was made for the disposition of income in the event that both daughters died without issue before the trust terminated. Upon termination the corpus of the trust was “to be distributed in equal shares among my then surviving children, the child or children of any deceased child to take by right of representation,” and in the event that at termination no child or issue of a child survived, the corpus was to be divided equally between two charities. Thus, in no event, could the decedent enjoy more under her husband’s will than a life interest in the income of approximately one third of his estate. But her property rights were not necessarily limited by her husband’s will, for under the law of Maine as it stood at the time of Mr. Harmon’s death, the decedent as his widow had the right within six months after the probate of his will to waive the provisions therein contained for her benefit and take one-third of her husband’s net estate outright. And apparently the testatrix seriously considered claiming her statutory right for it is agreed that she was not always on friendly terms with her stepdaughters. She was, however, deterred from taking this step by the realization that if she should do so she would defeat, her late husband’s principal aim in setting up the trust which was to continue unitary ownership of his controlling interest in the Loring, Short, and Harmon stock until the fruition of certain plans, known to his trustees, which he had formulated with respect to that stock. Faced with this situation it was decided by the parties concerned, all beinff competent adults, that since the trust could not be revoked in part, they would provide for its revocation in to to and then its re-establishment as to the Lor-ing, Short, and Harmon stock. To this end on June 9, 1924 (during the period within which the decedent could have waived the provisions of her husband’s will in her favor and taken one-third of his estate outright), all interested parties entered into an agreement to terminate the testamentary trust promptly upon the decedent’s request, and thereupon to distribute its assets to the beneficiaries in the proportions to which they were entitled under the will, provided the beneficiaries coincidentally with the distribution created a new trust and immediately transferred and delivered their Loring, Short, and Harmon stock to the trustees named therein. The agreement set out the terms of the inter vivos trust to be created under the above circumstances and while it provided for the same board of trustees some of its other provisions differed from those of the husband’s testamentary trust. Among these were the following: Whereas in the testamentary trust the daughters’ two-thirds of the income was not disposed of in the event they both died without issue before the trust terminated, the inter vivos trust provided that in that event the entire income of the trust was to be paid to the decedent during her lifetime. And another variance, also in the decedent’s favor, was with respect to the distribution of the corpus of the trust upon its termination. Both trusts had like provisions with respect to termination by unanimous agreement. But upon termination by agreement of the testamentary trust no part of its assets were distributable to the decedent, whereas upon, such termination of the inter vivos trust its assets were distributable to the “then ben-efieiaries in the same proportions as their then interest in the income." On January 14, 1926, the decedent requested the trustees to terminate the testamentary trust, they did so, and a new inter vivos trust was coincidentally established in accordance with the agreement of June 9,1924. Isabelle C. Harmon died in February 1944 while this inter vivos trust was still extant, and there being no doubt whatever that she had at that time the power in conjunction with other persons to change the beneficial enjoyment of the property in the trust, the sole question is whether the decedent had “at any time made a transfer” of one-third of the property constituting the trust res so as to make that third subject to estate tax under § 811(d) (2) of the Internal Revenue Code of 1939 quoted so far as material in the margin. The plaintiff-appellant, proceeding on the basic assumption that if the testamentary trust and the inter vivos trust had been identical in their provisions there would be no question of any tax liability, contends that the differences between the two trusts were theoretical rather than practical, and in any event were not of sufficient importance to transform the decedent from a “mere conduit of title” to an actual transferor within the meaning of § 811(d) (2), supra. We do not agree. It may be that the difference between the trusts with respect to the devolution of income in the event both daughters died without issue is more theoretical than actual for the provision of the inter vivos trust giving all income to the decedent in that event instead of leaving it undisposed of as in the testamentary trust, could only come into effect on the remote chance that four substantially younger persons should predecease the decedent. But however that may be, the difference noted earlier in this opinion between the two trusts with respect to the decedent’s right to take corpus in the event of termination by agreement is far from theoretical. The plaintiff-appellant, arguing to the contrary, says that there was no practical chance of terminating the inter vivos trust by agreement for to do so required unanimous consent of the trustees and one of them, as the husband of a daughter beneficiary, could naturally and safely be counted upon to hold out against termination since should he consent one-third of the trust res would be irrevocably diverted from his wife and children and his sister-in-law to his sometimes unfriendly step-mother-in-law. This may all be so, but should the son-in-law trustee die, which is not a possibility so remote as to be theoretical, his place as a trustee would be filled by the joint action of the decedent and the other trustee, who presumably would have no interest for or against termination, and in this situation the place might well be filled by a person amenable to the decedent’s wishes. It seems to us that counsel for the collector are correct when they say in their brief: “The essential point is that under Maine law the decedent had the right not only to get one-third of the ‘free assets’ [the assets other than Loring, Short, and Harmon stock worth approximately $82,000] but also to get one-third of the stock. And, contrary to the taxpayer’s contention, she did not completely surrender this latter right, but retained the power, along with other persons, to vest one-third of the stock in herself upon the termination of the trust. And it is precisely because of this retained power that one-third of the trust must be included in her gross estate. The mere fact that she did not exercise the power does not, of course, have any bearing on the taxability; for it is the existence of the power, not its exercise, which results is the inclusion of the trust in her estate.” The judgment of the District Court is affirmed. . “§ 811. Gross estate “The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside of the United States— ******** “(d) Revocable transfers “(2) Transfers on or prior to June 22, 1936. To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, ♦ * *» 26 U.S.C.A. § 811. . The motive for the creation of the inter vivos trust was inoperative after 1931 for in that year the trust sold its entire block of Loring, Short, and Harmon stock, 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_injunct	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 court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction 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". UNITED STATES of America, Plaintiff-Appellant, v. Charles DAVIS, individually and on behalf of all others similarly situated, Defendant/Third-Party Plaintiff-Appellee, v. Edward DERWINSKI, or his successor, Administrator of the Veterans Administration, Third-Party Defendant-Appellant. No. 91-1678. United States Court of Appeals, Seventh Circuit. Argued Jan. 9, 1992. Decided April 3, 1992. Order, April 20, 1992. Rehearing and Rehearing En Banc Denied May 18, 1992. John E. Fryatt, U.S. Atty., Chris R. Larsen, Asst. U.S. Atty., Office of the U.S. Atty., Milwaukee, Wis., Mark Stern, Malcolm L. Stewart (argued), Department of Justice Civ. Div., Appellate Section and Ann Southworth, U.S. Atty., Department of Justice, Civ. Div., Washington, D.C., for the U.S. and Edward Derwinski, or his successor, Administrator of the Veterans Administration. David Leen (argued), Leen & Moore, Seattle, Wash, and Charles H. Barr, Milwaukee, Wis., for Charles Davis, individually and on behalf of all others similarly situated. Alan Lee and James E. Doyle, Atty. Gen., Office of the Atty. Gen., Wisconsin Dept, of Justice, Madison, Wis., for the State of Wis. Before CUDAHY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge. ESCHBACH, Senior Circuit Judge. Wisconsin’s real estate foreclosure law allows lenders to choose between two different foreclosure routes. Route one gives the borrower a long redemption period but allows the lender to preserve its right to collect a deficiency judgment from the borrower. Route two provides for expedited foreclosure but requires the lender to fore-go its right to a deficiency judgment. This case involves an attempt by the Department of Veterans’ Affairs (VA) to exercise its federal indemnity right to seek reimbursement from a veteran for a loan guaranty payment the VA made to a private lender on the veteran’s behalf after the veteran’s property was foreclosed by the lender. The question is whether the VA retains its federal indemnity right even though it allows a lender to choose route two, that is, expedited foreclosure and waiver of deficiency. For the reasons below, we hold that the VA may exercise its indemnity right to seek reimbursement for guaranties paid pursuant to its legal obligation. Accordingly, we reverse the injunction the district court entered to prohibit the VA from collecting such reimbursement and remand for further proceedings consistent with this opinion. I. FACTS Two statutory schemes, the VA’s home loan program and Wisconsin’s foreclosure law, are pertinent to this case. We discuss each in turn. Under the VA’s nationwide loan guaranty program, the VA has provided housing assistance to qualified veterans since 1944 by guaranteeing home loans made to veterans by private lenders. See Title III of the Servicemen’s Readjustment Act of 1944, Pub.L. No. 346, 58 Stat. 284, 291 (codified as amended at 38 U.S.C. §§ 1801-33) [hereinafter Servicemen’s Readjustment Act]. The VA has promulgated regulations governing all aspects of its loan guaranty program. See 38 C.F.R. part 36 (1988). Veterans are charged a one percent guaranty fee for a VA loan pursuant to 38 U.S.C. § 1829(a). In return, they are guaranteed a maximum interest rate that is usually below the market rate, see 38 U.S.C. § 1803(c); 38 C.F.R. § 36.4311, as well as limits on closing costs, loan origination, escrow and other fees, see 38 C.F.R. § 36.4312. Additionally, lenders usually forego the requirement of a down payment on a VA loan in return for the VA’s guaranty. The VA’s guaranty, by increasing the private lender’s comfort level with the loan, induces them to make loans (or offer terms) which they otherwise might decline. If a veteran defaults on loan payments, the lender may foreclose on the property. The VA regulations do not set forth a foreclosure procedure; foreclosure is effected according to the law of the state in which the property is located. Seé 38 U.S.C. § 1820(a)(6); 38 C.F.R. §§ 35.4319, 36.4320. The lender must give the VA thirty days’ notice before beginning foreclosure proceedings. 38 C.F.R. § 36.4317. The VA then has fifteen days in which to give the lender instructions regarding the foreclosure proceeding. 38 C.F.R. § 36.-4324(f). If the lender forecloses in accord-anee with the VA’s instructions, and a deficiency remains after the sale of the property, the VA must reimburse the lender up to the amount of its guaranty. 38 C.F.R. § 36.4321. Veterans participating in the VA program sign a contract with the VA that establishes the VA’s right to seek reimbursement from the veteran for any payments the VA must make to private lenders pursuant to its guaranty of the veteran’s loan. This guaranty agreement is governed by federal law. The federal regulations adopted pursuant to this law provide two alternative courses by which the VA may recover from the veteran the amount paid on the guaranty. First, the VA becomes subrogated to the rights of the lender and can pursue any causes of action the lender might have had against the defaulting veteran. 38 U.S.C. § 1832; 38 C.F.R. § 36.4323(a). Under this subro-gation right, the VA’s rights are strictly derivative from the lender’s rights. If, for instance, the lender could collect a deficiency judgment from the veteran, then the VA could step into the shoes of the lender and do so as well. Of course, if the lender’s rights to a deficiency judgment against the veteran fail, then the VA’s rights through subrogation fail as well. Second, the VA may pursue its indemnity right under its guaranty contract with the veteran to recover any amounts paid on the guaranty. 38 U.S.C. § 1832; 38 C.F.R. § 36.4323(e). This indemnity right is a contractual one, arising directly from the contract between the veteran and the VA rather than deriving from the lender/veteran relationship. Aside from these federal rights, Wisconsin’s foreclosure law is also relevant to this case. Wisconsin law provides two statutory mechanisms by which a lender may foreclose on the mortgaged property of a debtor who is in default. The lender may demand in his complaint of foreclosure that judgment be rendered “for any deficiency which may remain due to him after sale of the mortgaged premises_” Wis.Stat. § 846.04. If the lender proceeds under this section, the debtor is given twelve months to redeem the property. Alternatively, the lender may choose expedited foreclosure if the borrower has previously so agreed. Under this route, the lender “may elect by express allegation in the complaint to waive judgment for any deficiency which may remain due to [him] after sale of the mortgaged premises,” in which case a six-month redemption period applies. Wis. Stat. § 846.1Ó1. It is this second route with which we are primarily concerned. Charles Davis is a veteran of the United States Navy who bought a home in Wisconsin through the VA’s loan guaranty program. When Davis purchased his home, he executed loan documents and a mortgage with a private lender as well as a guaranty agreement with the VA. When Davis defaulted on his home loan, the lender foreclosed on his property pursuant to the second, expedited route as permitted by Davis’ mortgage agreement. The lender subsequently sold Davis’ property at a foreclosure sale for less than the outstanding balance on Davis’ loan. Thus, a deficiency of approximately $23,000 remained. Because the VA had contractually guaranteed Davis’ loan for more than the remaining deficiency, the VA reimbursed the lender for the entire deficiency pursuant to its guaranty of Davis’ loan. The VA then sought recovery of that amount from Davis under its federal indemnity right. In response to the VA’s attempted recovery, Davis denied liability and filed a third-party class action complaint against Edward Derwinski, the Secretary of Veterans Affairs, challenging the VA’s right to recover payments it has made pursuant to its loan guaranties. Davis asserts that just as the VA lost its subrogation right when the lender foreclosed under section 846.101, it also lost its indemnification right. He argues that the VA was required to direct the lender to foreclose under section 846.-04, rather than section 846.101, if it-wanted to preserve its indemnification right. After both Davis and the VA filed' cross-motions for summary judgment, the district court agreed with Davis, essentially finding that the VA was “estopped” from asserting its indemnity right when it allowed a lender to foreclose under section 846.101. The district court entered an order which certified the class and subclasses proposed by Davis, denied the VA’s motion for summary judgment, granted summary judgment for one of Davis’ subclasses, permanently enjoined the VA from collecting indemnity payments from any veterans whose property was foreclosed pursuant'to section 846.101, and ordered the VA to refund indemnity payments previously collected. Based on that injunction, the United States and Derwinski appealed. See 28 U.S.C. § 1292(a). II. DISCUSSION We do not write on a clean slate in this case. First, the VA has long interpreted its enabling legislation, see Servicemen’s Readjustment Act § 504, as providing it a federal indemnity right that is unaffected by state foreclosure law. See Decisions of the Administrator of Veterans’ Affairs, No. 625 at 1154 (Jan. 22,1945); 38 C.F.R. § 36.-4323(e); see also VA Form 26-1820; VA Form 26-1820a. The VA’s interpretation of the statute is controlling unless “plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S, 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945). Second, the Supreme Court has previously considered, and upheld, the VA’s right of indemnity against veterans for amounts it must pay lenders pursuant to its guaranty obligation. In United States v. Shimer, 367 U.S. 374, 81 S.Ct. 1554, 6 L.Ed.2d 908 (1961), the Supreme Court considered the VA’s home loan program and upheld the validity of the VA’s independent right of indemnification under section 36.4323(e). In Shimer, as in this case, the VA sought to collect monies from a veteran pursuant to its. indemnity right rather than its subrogation right (recognizing in both cases that its subrogation rights were ineffectual because the lender had not preserved its rights to a deficiency judgment against the veteran). The lender in Shimer, after purchasing the property at a judicial sale, failed to file a petition to fix the fair market value of the foreclosed property pursuant to the Pennsylvania Deficiency Judgment Act. According to the Pennsylvania statute, this failure permanently discharged both the debtor and the guarantor from liability on the debt. The Third Circuit looked to this state law and determined that the VA was thus not obligated to pay the lender on its guaranty. Applying basic principles of surety law, the court held that the VA could not recover from its principal, Shim-er, any amount it was not obligated to pay the lender on his behalf. See United States v. Shimer, 276 F.2d 792 (3d Cir.1960). The Supreme Court reversed the Third Circuit’s decision, holding that the application of state law to determine the VA’s obligation to the lender was inconsistent with the applicable regulations prescribed by the VA to compute guaranty claims. Shimer, 367 U.S. at 377-81, 81 S.Ct. at 1557-60 (discussing 38 C.F.R. § 36.4321). The Court stated that it had “no doubt that this regulatory scheme, complete as it is in every detail, was intended to provide the whole and exclusive source of protection of the interests of the [VA] as guarantor and was, to this extent, meant to displace inconsistent state law.” Id. at 381, 81 S.Ct. at 1559. More significantly, the Court went on to consider Shimer’s argument that even though the VA was obligated on its guaranty to the lender, the VA nevertheless had no right to indemnity from him. See id. at 386, 81 S.Ct. at 1562. The Court disagreed with Shimer and held that the VA enjoys an “independent right of indemnity.” Id. at 387, 81 S.Ct. at 1563. “We cannot agree that Congress ... intended to relieve the veteran of direct liability for amounts properly paid on his behalf” by the VA. Id. at 386, 81 S.Ct. at 1562. Thus, Shimer upheld both the lender’s federal right to receive payment from the VA on its guaranty of a veteran’s loan and the VA’s federal right to indemnity from the veteran for paying the lender on that guaranty. We think that Shimer controls this case and compels us to reverse the district court’s order; the VA may exercise its federal indemnity right to seek reimbursement from veterans for guaranty obligations which it was legally obligated to pay, and did pay, lenders. Although the district court found “the pertinent facts of the present case indistinguishable from those in Shimer,” it held that the “VA is estopped from seeking a deficiency against a veteran under its indemnity agreement when the lender forecloses against the veteran pursuant to Wis.Stat. § 846.101.” R. 36 at 14. The district court declined to apply Shimer because in Shimer the VA was not completely able to control its power to be made whole through subrogation as it arguably is in Wisconsin. Under the Pennsylvania foreclosure scheme, a lender makes an election to pursue a deficiency judgment after the foreclosure sale and after the VA’s guaranty obligation has been established and paid. Thus, the VA had no string with which to control the lender at the time of the lender's election to pursue a deficiency. In Wisconsin, by contrast, the lender makes the election in the foreclosure complaint itself. Thus, in Wisconsin, the VA could require a foreclosing lender to use section 846.04, rather than section 846.101, and thereby preserve its subrogation right. The district court believed that because the VA enjoyed the option of preserving its subrogation right it would be inequitable to permit the VA to forego that right by allowing a lender to foreclose under section 846.101, but then nonetheless rely on its indemnity right to collect amounts paid on its guaranty from the veteran. Thus, the district court es-topped the VA from asserting its indemnity right when the VA allows a lender to foreclose under section 846.101. In so doing, we believe that the district court erred in penalizing the VA for relying on a federal right that the Supreme Court has upheld as a legitimate exercise of the VA’s authority to administer the veterans’ home loan program. See Shimer, 367 U.S. at 381-85, 81 S.Ct. at 1559-62. Simply because the VA could have instructed lenders to proceed under section 846.04, and arguably preserved its subrogation rights, does not provide us authority for insisting that it take that course of action. There is no textual basis in the statute and regulations governing the VA’s home loan program that compels us to force the VA to privilege its subrogation right over its indemnification right. Moreover, in Shimer, the Supreme Court gave no indication that the VA’s federal indemnity right was subject to qualification depending upon whether the VA’s subrogation right was available. See Shimer, 367 U.S. at 386-88, 81 S.Ct. at 1562-63. Davis argues, however, that we should follow a recent decision of the Ninth Circuit and hold, as did that court, that the VA has a right to indemnity only when state law always bars the lender, and thereby the VA through subrogation, from recovering a deficiency against the veteran. Whitehead v. Derwinski, 904 F.2d 1362, 1369 (9th Cir.1990). The Ninth Circuit required the VA to rely upon its subrogation right rather than its indemnity right when it could ensure that its subrogation right was protected. Id. Although we concede that the facts of this case and those in Whitehead are materially indistinguishable, we respectfully disagree with the analysis employed by the Ninth Circuit in that case. First, the Ninth Circuit characterizes the VA’s subrogation right as “primary” without providing any authority for that proposition. See id. (“Given the availability of the judicial foreclosure alternative, which allows the VA to exercise its primary right to subrogation and proceed directly against the debtor, the VA may not ... resort to its right to indemnity.”). As we have noted above, we discern no fair support for characterizing the VA’s subrogation right as “primary” and thus respectfully decline to follow our Ninth Circuit colleagues. The only other circuit to consider the issue before us has likewise declined to follow Whitehead. See Vail v. Derwinski, 946 F.2d 589, 591-92 (8th Cir.1991) (“No rationale exists” for Whitehead’s conclusion that the VA’s indemnity right was essentially a backup for subrogation). Likewise, we think it unwise to follow the path laid down in dicta by the Ninth Circuit in Whitehead and speculate on whether the Supreme Court would significantly limit Shimer because of an evolved conception of federal-state relations. See White head, 904 F.2d at 1369-71. The Supreme Court has consistently discouraged courts of appeal against such an approach: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989). We believe that Shim-er is directly applicable to this case and therefore choose to follow its lead in sustaining the VA’s independent federal indemnity right. Davis next presses the theory that regardless of whether we find Whitehead’s reasoning persuasive, equity provides us with a basis pn which to uphold the district court’s injunction against the VA. Put differently, Davis accuses the VA of reaping the benefits of Wisconsin’s expedited foreclosure law while disavowing its burdens— an option not available to lenders in Wisconsin. While we agree with Davis that the VA may enjoy rights in addition to those that lenders enjoy, we think that Davis’ comparison between the VA and lenders misses the mark. The VA is not a lender; it is a guarantor. Moreover, it is a guarantor under a comprehensive federal program specifically designed to regulate the VA/lender and VA/veteran relationships. The VA home loan program establishes a separate federal scheme for determining the “benefits and burdens” of both the VA/lender and VA/veteran relationships. State law is left to regulate the lenders’ and veterans’ rights as against each other. See Farm Credit Bank of Saint Paul v. Lord, 162 Wis.2d 226, 470 N.W.2d 265, 270 (1991) (right or equity of redemption afforded mortgagor vis-a-vis mortgagee is created solely by state law), cert. denied, - U.S. -, 112 S.Ct. 440, 116 L.Ed.2d 459 (1991). It is this separate scheme of benefits and burdens that we must uphold, provided it represents a valid exercise of the agency’s authority (and Davis does not challenge any of the VA regulations as implemented). See Shimer, 367 U.S. at 382, 81 S.Ct. at 1560. Thus, even if the “benefits and burdens” of the VA home loan program are different in kind or degree from those provided non-VA participants, this does not produce inequity between the VA and rion-VA participants. There is nothing inequitable in treating differently groups that are not similarly situated. Cf. Catharine MacKinnon, Difference and Dominance in Feminism Unmodified: Discourses on Life and Law 32-45 (1987) (law often mistakenly equates treating people the same with treating them equally). Furthermore, Davis premises his equitable argument on the unjustified assumption that veterans are similarly situated to other borrowers in Wisconsin. Again, this is not the case. Davis, like other participants in the VA’s home loan program, availed himself of a favorable federal program that is not open to all borrowers. Now, he asks us to treat him “just like everyone else” when he benefit-ted from not being treated like everyone else in the first place. In addition to the favorable lending terms for veterans explained above, the VA program also provides veterans with various protection in the event of default and foreclosure. Davis signed a guaranty contract with the VA establishing the VA’s indemnity right and agreeing that federal law would govern the contract. Although the VA’s protection of veterans in the event of foreclosure may be different from that protection Wisconsin has elected to provide its borrowers, it is certainly not for us to say that an extended redemption period would be more fair to veterans than the procedures the VA has promulgated. Furthermore, Davis has not challenged any of the VA’s regulations themselves, which of course he would have been free to do. We disagree with Davis that we should prevent the VA from exercising its indemnity right on equitable grounds. Consequently, we find no basis on which to limit Shimer’s conclusion that the VA’s subrogation and indemnification rights are independent, legitimately promulgated, federal rights, Shimer, at 386-87, 81 S.Ct. at 1562-63, and thus no basis on which to require the VA to privilege its subrogation right over its indemnification right. Finally, we come to an issue that we set aside at the start of our discussion (see ante at n. 3). The district court suggested that the VA may have instructed some lenders in Wisconsin to effect foreclosure by a method that would preserve the personal liability of the debtor, and that some lenders may have ignored the VA’s instructions. Under 38 C.F.R. § 36.4324(f), noncompliance with the VA’s instructions as to the appropriate method of foreclosure would relieve the VA of liability as guarantor. If the VA pays lenders in this situation despite the lack of any legal obligation to do so, the payment is “gratuitous” and the VA is not entitled to indemnification. United States v. Church, 736 F.Supp. 1494, 1497-98 (N.D.Ind.1990). In the present case, the VA interpreted the district court’s opinion as agreeing with Church. Moreover, the VA states in its brief to this Court that “[we do] not challenge that aspect of the district court’s ruling; we argue only that the VA is entitled to indemnification for all guaranty payments that it was legally obligated to make. If this Court accepts our position, a remand is necessary so that the district court can determine which of the lenders did and did not comply with the applicable regulations.” Brief of Appellant at 14. The VA’s point is well taken; we remand to the district court for further proceedings consistent with this opinion. Reversed and Remanded. ORDER On April 3, 1992, our decision in United States v. Davis, No. 91-1678, slip op. (7th Cir. April 3, 1992) was published, see page 603, which reversed an injunction entered against the Veteran’s Administration (VA) prohibiting the VA from exercising its federal indemnity right to seek reimbursement for guaranties paid on behalf of veterans participating in its VA home loan program. Additionally, we remand the case for further proceedings, including a determination of whether part of the appellee class may be relieved of liability to the VA on the authority of United States v. Church, 736 F.Supp. 1494, 1497-98 (N.D.Ind.1990) (holding that under 38 C.F.R. § 36.4324(f), a lender’s noncompliance with the VA’s instructions releases the VA from its guaranty obligation to the lender, and in turn, also releases the veteran from his obligation to the VA). Unbeknownst to this panel until April 6, 1992, the appellee class filed a motion to dismiss this appeal as moot on March 30, 1992. The appellee class argues that it is entirely composed of individuals who would be released of liability to the VA under Church., thus mooting the appeal on the merits. The motion is based on (1) the VA’s admission in its appellate brief (and confirmed during oral argument) that it does not challenge Church or its application where appropriate in this case and on (2) “subsequent discovery which has disclosed that all members of the class are entitled to relief pursuant to the VA’s admission.” Motion of Appellee Class to Dismiss Appeal on Ground of Mootness. The “subsequent discovery” relied upon is a request for admissions recently served on the YA by the appellees, to which appel-lees’ counsel indicates the VA has not responded by the applicable deadline. Appel-lees’ counsel states by way of affidavit that Christian Larsen, the Assistant United States Attorney representing the VA, desires to defer its response to the discovery requests until disposition of the appeal. The appellee class asks us to view the requested admissions, the VA’s alleged failure to respond, and its counsel’s conversation with Mr. Larsen as an admission by the VA that it has no indemnity rights with respect to any member of the appellee class. The issue of what portion of the appellee class is covered by Church and the VA’s concession regarding its application, however, presents a factual question best resolved by the district court. So, too, issues presented by ongoing discovery in this case are best left to the district court to address. In short, appellees’ motion asks that we resolve factual issues that are appropriate for the district court to resolve on remand. Accordingly, we direct the district court to consider the issue of the applicability of Church to the plaintiff class on remand as instructed in our opinion. See pages 610-611. . The issue we face in this case will not likely arise for veterans whose loans were closed after December 31, 1989. Veterans who pay an increased guaranty fee, and whose loans are closed after December 31, 1989, will not be liable to the VA for any loss resulting from a default on such loan, except in the case of fraud, misrepresentation or bad faith in obtaining the loan or in connection with the default. The Veterans' Benefits Amendments of 1989, H.R. 901, Pub.L. No. 101-237, § 304. These amendments raised the loan fee required by 38 U.S.C. § 1829 from one percent to 1.25 percent of the loan amount for veterans. Congress has since increased the fee to 1.875 percent for loans closed between November 1, 1990 and September 30, 1991. See Omnibus Budget Reconciliation Act of 1990, Pub.L. No. 101-508, § 8032. These and subsequent amendments have renumbered many of the statutory sections applicable in this case. Our citations are to the statutes applicable here rather than as renumbered. . We use the term “lender,” rather than mortgagee or holder, throughout this opinion for simplicity, although we recognize that the party foreclosing may not be the original lender because that lender may assign the mortgage before foreclosure. Similarly, we use the term "veteran” rather than "borrower" or "obligor” for simplicity, although we recognize that at the time of foreclosure the person being foreclosed upon may be the veteran’s beneficiary or assign-ee. . A lender’s noncompliance with the VA’s instructions affects the VA’s rights vis-a-vis the veteran. See United States v. Church, 736 F.Supp. 1494 (N.D.Ind.1990). We put this issue aside for the moment. See post pp. 610-611. . A deficiency refers to that amount which is the difference between the amount due on a defaulted home loan after foreclosure (including costs incurred in the foreclosure process) and the net amount realized from the sale of the security for the loan (usually the home itself). See, e.g., Wis.Stat. § 846.165. . The VA’s indemnity agreement with the veteran may appear in one of two forms. When the loan application is processed automatically by the lender, the indemnity agreement is set forth on VA Form 26-1820. When the veteran and the lender apply jointly for a guaranty (as did Davis), the agreement is set forth in VA Form 1802a, the "VA Application for Home Loan Guaranty.” This form provides: [ T]he undersigned veteran and lender hereby apply to the Administrator of Veterans’ Affairs for Guaranty of the loan described here under Section 1810, Chapter 37, Title 38, United States Code to the full extent permitted by the veteran’s available entitlement and severally agree that the Regulations promulgated pursuant to Chapter 37, and in effect on the date of the loan shall govern the rights, duties, and liabilities of the parties. . 38 C.F.R. § 36.4323, entitled "Subrogation and indemnity,” provides in relevant part: (a) The Secretary shall be subrogated to the contract and the lien or other rights of the holder to the extent of any sum paid on a guaranty or on account of an insured loss, which right shall be junior to the holder’s rights as against the debtor or the encumbered property until the holder shall have received the full amount payable under his contract with the debtor. No partial or complete release by a creditor shall impair the rights of the Secretary with respect to the debtor’s obligation.... (e) Any amounts paid by the Secretary on account of the liabilities of any veteran guaranteed or insured under the provisions of 38 U.S.C. Chapter 37 shall constitute a debt owing to the United States by such veteran..., . The redemption period is the period between the judgment of foreclosure and the foreclosure sale. During this time, the mortgagor may avoid the sale of the property by repaying the outstanding indebtedness. . Section 846.101 reads in relevant part: [ T]he plaintiff in a foreclosure action of a mortgage ... may elect by express allegation in the complaint to waive judgment for any deficiency which may remain due to the plaintiff after the sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage. . Because the lender had foreclosed Davis’ property under section 846.101, it had waived its right to a deficiency.. Thus, the VA’s subrogation right, which allows it to step into the lender’s shoes, would not have provided the VA an effective collection route. . Moreover, it not necessary for us to perform a "preemption” analysis in this case as did Whitehead in dicta. See Whitehead, 904 F.2d at 1369-72. A further reason for our holding that Wisconsin’s statutory restrictions on deficiency judgments do not preclude the VA’s suit for indemnification against Davis is that it is by no means clear that the Wisconsin statute at issue even applies to relationships between a debtor and third parties such as guarantors. Section 846.101 by its terms speaks of the “plaintiff’s” election of remedies and consequent waiver of rights. See Wis.Stat. § 846.101. The "plaintiff” in Davis’ foreclosure action was the lender, not the VA. This will usually be the case, as the VA does not itself prosecute foreclosure actions unless the lender fails to exercise reasonable diligence in foreclosing. See 38 C.F.R. § 36.-4319(f). Neither party was able to lócate any Wisconsin case' law addressing this question. Our own search of Wisconsin’s case law has likewise yielded no clear guidance. In the only recent case to address section 846.101; the Wisconsin Supreme Court noted without deciding that the party waiving its right to a personal deficiency under section 846.101 is the mortgagee. See Glover v. Marine Bank of Beaver Dam, 117 Wis.2d 684, 345 N.W.2d 449, 456 (1984) ("This [section 846.101’s] protection comes in the form of a waiver of personal deficiency by the mortgagee.”). Thus, for us to reach the question of whether the VA’s regulation preempts section 846.101, we must first assume the two laws conflict. It is unnecessary for us to make this assumption and therefore unnecessary as well for us to embark on a preemption analysis. Accord Vail, 946 F.2d at 592 (VA’s indemnity right upheld despite VA’s acquiescence in lender’s use of expedited foreclosure proceeding because Minnesota law affirmatively recognizes that rights of third parties under contracts of guaranty survive anti-deficiency laws; no preemption analysis necessary to decide case). The State of Wisconsin filed a brief in this case as amicus curiae. We note that Wisconsin does not argue that section 846.101 generally releases guarantors as well as debtors. Rather, Wisconsin expresses two concerns in asking us to affirm the district court. The first is its "interest in the uniform application of its laws to all lenders.” Brief for the State of Wisconsin as Amicus Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_state	14	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". In re BATAVIA METAL PRODUCTS, Inc. FILBEN MFG. CO., Inc., v. BATAVIA METAL PRODUCTS, Inc. No. 9389. Circuit Court of Appeals, Seventh Circuit. Feb. 28, 1948. Harry Shriman and Schwartz, Allen & Shriman, all of Chicago, Ill., for appellant. J. H. Schwartz and Norman H. Nachman, and Schwartz and Cooper, all of Chicago, Ill., for appellee. Before SPARKS, MAJOR, and MIN-TON, Circuit Judges. MINTON, Circuit Judge. On November 1, 1945, the alleged bankrupt, hereinafter referred to as the debtor, entered into a license agreement with the appellant by the terms of which the latter licensed the debtor to manufacture and sell certain automatic phonographs. The license agreement is not in the record. It does not appear when the bankruptcy proceedings were instituted, but subsequent thereto, on August 30, 1946, an infringement suit was filed in the District Court for the Northern District of Illinois against the debtor by Rock-Ola Manufacturing Corporation in which it claimed the infringement of certain patents owned by it. Thereafter, the appellant filed a petition in the bankruptcy proceedings to terminate the license agreement, which the referee accordingly did. On February 20, 1947, the debtor filed a verified petition in the bankruptcy proceedings setting up the fact of the pendency of the infringement suit, apparently growing out of the uses made of the patents, pursuant to the license agreement with the appellant. The petition also set forth the cancellation of the license agreement by the appellant and the discontinuance of the manufacture and sale of the automatic phonographs, and an agreement with the attorneys for Rock-Ola for the entrance of a consent decree in the infringement suit, with a waiver of damages and accounting, but with the usual restraining orders, each party to pay his own costs. The petition also prayed that the debtor be authorized to settle and dispose of the infringement suit on that basis. No one appeared in opposition to this petition or filed any pleadings in answer thereto. The prayer of the debtor was granted, and an order authorizing the disposition of the infringer ment suit was entered after a consideration of the verified petition and the statement and argument of counsel. The order recited the filing of the petition and statement of counsel that the debtor had ceased the manufacture and sale of the automatic phonographs involved in the patent suit and recited further that prior to the institution of the proceedings the debtor had manufactured and sold the automatic phonographs by virtue of the license agreement with the appellant, which license agreement had been cancelled; that due notice of the filing of the debtor’s petition had been given to all of the parties in interest; and it - was ordered that the officers of the debtor be authorized to enter into the consent decree with the usual restraining orders; and “that there shall be no accounting between the parties, the claim of plaintiff in said action for profits and damages to be waived as to any infringing sale or use prior hereto, Batavia to have the right to make non-infringing sales of parts and accessories of the phonograph now on hand and that each party to said patent action shall pay its own costs.” A petition to review this orde r was filed by the appellant, and the objecdons asserted therein were that on the hearing of the petition of the debtor for authority to settle the infringement suit, the debtor’s counsel represented, apparently truthfully, that prior to the institution of the infringement suit the debtor had manufactured a substantial quantity of parts and materials for the assembly of the automatic phonographs which were assets of the debtor’s estate and of substantial value, and if sold as scrap, these assets would have only a nominal value, and that under the terms of the proposed consent decree grave doubt would exist as to the rights of the debtor to dispose of these materials except as scrap; secondly, the petition complained that there was no allegation in the pleading, nor was any evidence introduced, to support the recital in the order sought to be reviewed that the debtor had manufactured and sold automatic phonographs by virtue of the license agreement with the appellant; thirdly, that the appellant had also been sued for infringement by Rock-Ola in the District Court of Minnesota, although infringement of what does not appear, that a declaratory judgment was there sought against the appellant, that the adjudication of that suit would dispose of the issues in the infringement suit herein, and that the debtor knew of this suit and did not inform the referee or the District Court of it; and that the appellant as a creditor of the debtor is aggrieved and the debtor’s estate jeopardized and injured by the order. The District Court denied the petition to review and confirmed the referee’s order. This appeal is from this order of the District Court. The appellant’s objections seem frivolous to us. As to the first, namely, the likelihood that the District Court’s proposed consent decree may not permit the valuable materials of the debtor’s estate to be sold except as scrap. It is contended that under the proposed consent decree grave doubts would arise as to the rights of the debtor to dispose of the materials except as scrap. The short answer to that is that we do not know whether there is a basis for such grave doubt or not, as a copy of the proposed consent decree is not in the record, and no proceeding is now before us authorizing the sale of the materials as scrap. It will be time enough to meet that when the issue is presented. We cannot assume that the District Court would authorize a disposition of valuable assets except in the interest of the debtor’s estate. As to the second proposition, that manufacture and sale of the automatic phonographs were made before the institution of the bankruptcy proceedings. True, in the verified petition of the debtor for authority to enter the consent decree there is no allegation to support the referee’s finding. We do not know what counsel represented to the referee on the presentation of the said petition that might have given support to the recital in the order. The recital is not necessary to support any part of the court’s order. It may be treated as surplusage. In any event, such recital, if unsupported, was not harmful and did not adversely affect the debtor’s estate, and that is all the referee had to consider. Whatever rights the appellant had in the estate were in the appellant’s claim for money damages. The consent decree did not authorize any money judgment for any sum against the debtor. It did not shrink the debtor’s estate one cent. The debtor had nothing to lose by abiding by the order except its freedom to manufacture and sell, pursuant to the license agreement. The debtor had already ceased such manufacture and sale, and the appellant by its affirmative action had terminated the license agreement. It needs no argument to demonstrate that the third contention of the appellant is without merit. The debtor owed no duty to the appellant to protect it in the infringement suit in Minnesota or to inform the referee or the District Court that such suit was pending. The debtor was not a party to that suit. The referee’s concern, and that of the District Court, was only to see that the debtor’s estate was protected and by so doing protect all of the creditors. Whether an infringement suit against the debtor shall be settled by a consent decree, with a waiver of damages and accounting, requires the exercise of discretion by the referee and the District Court, and their determination cannot be disturbed here, in the absence of a clear showing of an abuse of such discretion. In re Kansas City Journal-Post Co., 8 Cir., 144 F.2d 816, 817, 818; In re Anderson Thorson & Co., 7 Cir., 125 F.2d 325; Scott et al. v. Jones, 10 Cir., 118 F.2d 30, 32; In re Riggi Bros. Co. Inc., 2 Cir., 42 F.2d 174, 176. On this record, we cannot see how the court could be guilty of an abuse of discretion in authorizing a consent decree by the debtor which enjoined the debt- or from doing only what it had already ceased doing. It is even more difficult to see how the appellant, a creditor who had helped to bring about such cessation, could be aggrieved. The judgment of the District 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_fedlaw	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ronald JARRETT, Defendant-Appellant. No. 81-2565. United States Court of Appeals, Seventh Circuit. Argued Sept. 13, 1982. Decided April 5, 1983. Rehearing and Rehearing En Banc Denied June 8, 1983. John W. Conniff, Chicago, 111., for defendant-appellant. William C. Bryson, Dept, of Justice, Washington, D.C., for plaintiff-appellee. Before WOOD and POSNER, Circuit Judges, and DUMBAULD, Senior District Judge. The Honorable Edward Dumbauld, United States Senior District Judge for the Western District of Pennsylvania, is sitting by designation. HARLINGTON WOOD, Jr., Circuit Judge. This appeal, raising a variety of issues, arises from a jury conviction under 18 U.S.C. § 1951 (“the Hobbs Act”) for the armed robbery of Alfred’s Orange Blossom Jewelers (“Orange Blossom”) in Oak Lawn, Illinois, on December 15, 1977. The court sentenced Jarrett as a dangerous special offender under 18 U.S.C. § 3575 to twenty-five years imprisonment. I. Jurisdiction Jarrett asserts that the federal government lacked both constitutional power and statutory authority to prosecute him for the robbery of the Orange Blossom. According to Jarrett, the Hobbs Act does not permit the federal government to bring a criminal prosecution for a local robbery of a retail store upon a de minimis showing of effect on interstate commerce. Jarrett argues that, although the de minimis standard applies in extortion cases under the Hobbs Act, a more exacting standard should apply in robbery cases because of constitutional limits on the power of the federal government imposed by the reservation of power to the states to prosecute traditionally local offenses under the Tenth Amendment. Jarrett points out that traditionally robbery is a local offense whereas extortion is not. Thus, Jarrett concludes, the government failed to establish Hobbs Act jurisdiction in this case because, “of the $38,952.03 listed stolen, the Government proved that about $2,000 worth of interstate commerce was ‘affected,’ ” a figure which establishes only a de minimis effect on commerce. An examination of the statutory language of the Hobbs Act, the legislative history of the Act, the cases interpreting the Act, and the cases which examine the Tenth Amendment refute this position. Nothing on the face of the Hobbs Act indicates a congressional intent to define the phrase “affects commerce” more narrowly with respect to the offense of robbery as opposed to the offense of extortion. To the contrary, the statute places robbery and extortion on equal ground regarding the jurisdictional requirement of affecting commerce. Such equal placement and treatment provides strong evidence that Congress intended the use of the same standard in determining effect on commerce by robbery or extortion. The legislative history provides no support for Jarrett’s contentions. Congress clearly intended to define as a federal crime conduct that it recognized as punishable under state law. United States v. Culbert, 435 U.S. 371, 379, 98 S.Ct. 1112, 1116, 55 L.Ed.2d 349 (1978). The legislative debates contain numerous statements to the effect that the conduct reached by the Hobbs Act was already subject to punishment under state robbery and extortion statutes. Representatives who opposed the Hobbs Act contended that the Act interfered with the rights of the states. In passing the bill, however, Congress concluded that “the States had not been effectively prosecuting robbery and extortion affecting interstate commerce and that the Federal Government had an obligation to do so.” United States v. Culbert, 435 U.S. 371, 380, 98 S.Ct. 1112, 1117, 55 L.Ed.2d 349. Contrary to Jarrett’s position, Congress perceived both extortion and robbery to be crimes traditionally subject to state prosecution. Jarrett cites no case which distinguishes between the degree to which commerce must be affected for purposes of invoking federal jurisdiction for a charge of robbery and for a charge of extortion under the Hobbs Act. Courts draw no such distinction and require only a de minimis effect for robbery as well as extortion. In Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960), an extortion prosecution, the Court stated that the Hobbs Act “speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.” Reaffirming this view in United States v. Culbert, 435 U.S. 371, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978) (extortion prosecution), a unanimous Supreme Court said: the statutory language [of the Hobbs Act] sweeps within it all persons who have “in any way or degree ... affect[ed] commerce ... by robbery or extortion.” ... These words do not lend themselves to restrictive interpretation; as we have recognized, they “manifest ... a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.” Id. at 373, 98 S.Ct. at 1113. In a Hobbs Act robbery prosecution, United States v. Caldarazzo, 444 F.2d 1046 (7th Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 328, 30 L.Ed.2d 276 (1971), this circuit drew no distinction between the jurisdictional requirement for robbery and extortion cases. In Caldarazzo, we ruled that “[t]he Hobbs Act provides federal sanctions for robbery which ‘in any way or degree obstructs, or delays, or affects commerce or the movement of any article or commodity in commerce.’ ” Id. at 1048-49. We have previously held in an extortion case that “the commerce element [of the Hobbs Act is] satisfied where the actual impact on commerce is de minimis, ... or where, in the absence of proof of an actual impact, there is a realistic probability that the extortionate transaction will have some effect on interstate commerce.” United States v. Hedman, 630 F.2d 1184, 1195 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981). Thus, in light of Caldarazzo and Hedman, we hold that the de minimis standard applies to robbery cases under the Hobbs Act. The Eighth Circuit, in Nick v. United States, 122 F.2d 660 (8th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 302, 86 L.Ed. 550 (1941), addressed a Tenth Amendment attack on the validity of the Anti-Racketeering Act of 1934, ch. 569, 48 Stat. 979, 18 U.S.C. §§ 420a-420e (the predecessor to the Hobbs Act). In upholding the validity of the Act, the court, 122 F.2d at 668, explained as follows: The argument as to the Tenth Amendment is that this Act undertakes to invade State jurisdiction and deal with domestic violence — in short, is an attempt to exercise the police power reserved to the States under the Amendment. Clearly this is not true. The Act is an exercise of police power but it is based upon the protection of interstate commerce. If it comes within the commerce clause of the Constitution it is not open to this objection. If it does not come within the commerce clause it would be invalid whether it involved an exercise of police power or not. That the Act is within the commerce clause seems clear.... Similarly, the Ninth Circuit in Carbo v. United States, 314 F.2d 718, 733 (9th Cir.1963) held that the Hobbs Act is within the power of Congress and does not contravene the Tenth Amendment. Rather than regulate the internal functions of the states, the Hobbs Act regulates the activities of individuals. Furthermore, the Hobbs Act does not displace the states’ freedom to prosecute robberies or extortions. See generally Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (Illinois robbery conviction following federal prosecution and acquittal of bank robbery presents no double jeopardy problem). The Hobbs Act presents no unconstitutional intrusion upon the sovereignty of the states and, thus, is a constitutional exercise of the commerce power. II. Jury Instruction on Affecting Commerce Element Jarrett contends that the district court’s instruction respecting the necessary element of interstate commerce was inadequate. According to Jarrett, the instruction which the trial court gave “improperly delegated to the jury” the question of law of whether the robbery affected interstate commerce. Thus, Jarrett argues, the trial court erred in instructing the jury in terms of the governing legal standard instead of requiring the jury to determine only the factual questions supporting a finding of effect on commerce, such as whether the Orange Blossom store received jewelry from out-of-state suppliers. Jarrett fears that the error “diverted the jury from its special office of examining the evidence, and making findings of fact only.” United States v. Kuta, 518 F.2d 947, 951-52 (7th Cir.) (a Hobbs Act case), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975), and United States v. Sweet, 548 F.2d 198, 202 (7th Cir.1977) (18 U.S.C. § 844(i)), cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1978), held that the court determines as a jurisdictional matter whether interstate commerce has been affected and the jury finds whether the underlying facts exist. On the issue of the requisite nexus to commerce, the district judge in this case instructed the jurors: Now, the defendant is charged, in effect, with the crime of obstructing, delaying and affecting interstate commerce by knowingly and willfully and unlawfully committing robbery.... ‡ ‡ ‡ ‡ ‡ Now, the term “commerce” means all commerce between any point in the state and any point outside thereof. The robbery here need only have a minimal effect on commerce and it is not necessary for you to find that the defendant knew or intended that his actions would in any way affect commerce, it is only necessary that the natural consequences of the acts committed by the defendant charged in the indictment was to affect commerce in any way or degree. Record at 367-68. In dicta, we approved a similar instruction pertaining to the element of commerce under the Hobbs Act in United States v. Staszcuk, 517 F.2d 53, 55 n. 6, 59 (7th Cir.) (en banc), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975). Moreover, no prejudice resulted to Jarrett because the underlying jurisdictional facts were not controverted. In any event, Jarrett failed to object to the instruction at trial. Fed.R. Crim.P. 52(a). III. Selective Prosecution Jarrett also raises a claim of selective prosecution. He argues that it is not a claim which must be raised in a pretrial motion under Rule 12(b) of the Federal Rules of Criminal Procedure and, therefore, that he did not waive that defense by failing to file his motion until after the completion of the trial. We disagree. It seems clear that a request for dismissal based on selective prosecution must be raised before trial. United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977); United States v. Oaks, 508 F.2d 1403, 1404-05 (9th Cir.1974), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). In order to gain an evidentiary hearing on the issue of selective prosecution, the defendant must make a prima facie case based on facts “sufficient to raise a reasonable doubt about the prosecutor’s purpose.” United States v. Falk, 479 F.2d 616, 620-21 (7th Cir.1973). To do this, the defendant must show (1) that the prosecutor engaged in intentional discrimination based on an impermissible consideration, such as race, religion, or exercise of constitutional rights, United States v. Peskin, 527 F.2d 71, 86 (7th Cir.1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976), and (2) that “[w]hile others similarly situated have not generally been proceeded against because of conduct forming the basis of the charge against him, he has been singled out for prosecution.” United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). These issues bring into question the institution of the prosecution; Rule 12(b) requires such issues to be raised prior to trial. The sufficiency of these showings can, in the majority of cases, be determined without trying the general issue, which in this case was whether Jarrett was involved in the Orange Blossom robbery in violation of the Hobbs Act. While it is suggested in United States v. Wilson, 639 F.2d 500, 506 (9th Cir.1981) (Real, J., concurring), that a selective prosecution defense may require a full trial in order to develop the relevant facts, this is allowed for within the pretrial motion scheme, by Rule 12(e). The court may, for “good cause,” defer decision of a constitutional objection if production of evidence will clarify the issue, or if factual uncertainties require “trial of any nontrivial part of ‘the general issue...." United States v. Barletta, 644 F.2d 50, 57-58 (1st Cir.1981) (emphasis in original); Wright, Federal Practice and Procedure: Criminal 2d § 194. The stringency of the time requirements are similarly softened by Rule 12(f) which allows the trial judge to relieve a defendant of his waiver “for cause shown.” The policies behind restricting the time for making a motion for dismissal based on selective prosecution are well served by Rule 12(b), while arguments against including selective prosecution in those motions covered by 12(b) are mitigated by the deferral and waiver relief provisions of Rules 12(e) and (f). The district court was correct in finding that Jarrett waived his selective prosecution motion by failure to file until two months after trial. We need not reach the issue of whether Jarrett could have been relieved of his waiver, since he never requested such relief from the district court. IV. New Trial Jarrett claims entitlement to a new trial, citing as grounds (1) new evidence or perjured testimony, (2) government withholding of discovery materials, (3) rebuttal on a collateral matter, and (4) admission of hearsay. Pursuant to Rule 33 of the Federal Rules of Criminal Procedure, a court may grant a new trial to a defendant “if required in the interest of justice.” After reviewing the record and the parties’ arguments, we are convinced that the interest of justice does not require a new trial. Jarrett argues that “the jury never heard a critical change in the testimony of his coconspirator, Brown, which occurred subsequent to trial.” Thus, the jury lacked an important factor in evaluating Brown’s credibility. At trial, Jarrett’s counsel asked Brown the following questions and received the following answers: Q. Isn’t it a fact, Mr. Brown, that you didn’t see Ronald Jarrett on December 15, 1977, until after the Orange Blossom robbery had been concluded and accomplished? A. No. Q. Isn’t that a fact? A. No, it is not. Q. Would you lie to help yourself, sir? A. No, I would not. Subsequently, at the sentencing hearing, counsel asked Brown about his parole release in 1968. Brown admitted that he obtained a regular job, not because he wanted or intended to live a law-abiding life, but because it was a “necessity to get out on parole.” When asked if he would lie to help himself, Brown answered, “I probably would.” Contrary to Jarrett’s position, we detect no serious conflict in Brown’s testimony. In the first passage, Brown denied that he was lying about Jarrett’s participation in the robbery in order to help himself. In the second passage, Brown admitted that he would lie on certain occasions, such as obtaining his parole release. Furthermore, during the trial, Brown admitted to lying on a subject more pertinent to the case, stating that he lied to a special agent who was investigating the robbery. The jury, therefore, heard Brown admit that he sometimes lied. Finally, accepting Jarrett’s contentions arguendo, Brown’s testimony at the sentencing hearing does not meet the test for granting a new trial based on newly discovered evidence, United States v. Hedman, 655 F.2d 813, 814 (7th Cir.1981), or based on perjured testimony, Larrison v. United States, 24 F.2d 82 (7th Cir.1928). Newly discovered evidence, to be grounds for a new trial, must be “material, and not merely impeaching or cumulative.” Hedman, 655 F.2d at 814 (emphasis added). Here, Brown’s testimony is merely impeaching, at best. For perjured testimony to form the basis for a new trial, the court must be reasonably convinced that the testimony given by a material witness is false and that the jury might have reached a different conclusion had the truth come to light. United States v. Robinson, 585 F.2d 274 (7th Cir.1978) (en banc), cert. denied, 441 U.S. 947, 99 S.Ct. 2171, 60 L.Ed.2d 1051 (1979); Larrison v. United States, 24 F.2d 82 (7th Cir.1928). Brown’s statement at the sentencing hearing does not convince us that he was lying while testifying at Jarrett’s trial. Moreover, the fact that Brown lied at his parole hearing would not impress the jury to reach a different verdict because Brown already admitted to them that he lied to the special agent. Jarrett claims that the government withheld certain documents necessary for the defense to impeach witnesses for the prosecution. Unfortunately, Jarrett does not describe in particulars the nature of the documents he sought to discover. The district court restricted discovery to “any statements of the witnesses that might be usable for impeachment purposes, but not every statement made by witnesses regarding Jarrett.” In clarification, the court ruled, and we agree, that simply because a witness has accused Jarrett of committing another crime does not mean the witness is biased. Moreover, even if evidence that prosecution witnesses accused Jarrett of other crimes indicates bias, such evidence would be cumulative since the witnesses in question here were already accusing Jarrett of the Orange Blossom robbery. There is no indication or suggestion that the witnesses were accusing Jarrett of crimes so great in number as to connote prejudice or bias. The district court did not err, let alone abuse its discretion, by denying discovery. See generally United States v. Watson, 669 F.2d 1374, 1384 (11th Cir.1982); 10 Fed.Proc., L.Ed. § 26:403 (1982). Jarrett claims that he was improperly impeached on a collateral matter. At trial he testified that when he was visited by ATF agents in April of 1978 (about four months after the robbery), he did not have any police scanners or walkie-talkies in his home. In rebuttal, an ATF agent testified, over objection, that when he went to Jarrett’s home on April 20, 1979, he found walkie-talkies. A matter is collateral if the impeaching fact could not have been introduced into evidence for any purpose other than contradiction. 3 Weinstein’s Evidence ¶ 607 at 607-64 (1981). We agree with Jarrett that proof of possession of walkie-talkies sixteen months after the crime was committed is collateral. However, this impeachment resulted in harmless error beyond a reasonable doubt. Fed.R.Crim.P. 52(a); Fed.R.Evid. 103(a); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The remoteness in time and lack of relevance should have been obvious to the jurors. Possessing walkie-talkies is hardly inflammatory. Jarrett challenges the instruction given by the court relating to the rebuttal testimony. At trial, defense counsel raised no objection; rather, counsel specifically approved the instruction. Tr. 360 (“That’s fine, your Honor, that’s good.”). We do not consider the instruction to constitute plain error. Fed.R.Crim.P. 52; Fed.R. Evid. 103(d). Rather, it appears to be an agreed upon stipulation as to the date of the agents’ visit and a limiting instruction designed to eliminate any prejudice to Jarrett. Jarrett’s final ground for a new trial — improperly admitting hearsay — is frivolous, not meriting detailed discussion. According to Jarrett’s contention, the district court erroneously concluded that “the Government had established a joint venture” between Rodriguez, Jarrett, Brown, and Willis such that statements made by the now deceased Rodriguez were not hearsay under Federal Rule of Evidence 801(d)(2)(E). The independent evidence of the conspiracy was more than sufficient to meet the preponderance test adopted in United States v. Santiago, 582 F.2d 1128, 1135 (7th Cir.1978). Willis and Brown both testified to the participation of the four in the crime, and to various admissions by Jarrett, Fed.R.Evid. 801(d)(2)(A). Their testimony clearly established that Rodriguez was a coconspirator of Jarrett’s within the meaning of United States v. Gil, 604 F.2d 546 (7th Cir.1979). Furthermore, Jarrett failed to object to the admission of Rodriguez’s statements at trial. V. Sentencing Jarrett attacks his sentence imposed under the dangerous special offender statute, 18 U.S.C. § 3575, arguing that the district court’s findings concerning “dangerousness” are not supported by the record and are clearly erroneous, that the court abused its discretion in relying upon the witness Mara and the police reports for corroboration of the witness Brown’s testimony, and that the court erred in not explaining “why a twenty five year sentence is required when the maximum under the statute is twenty years.” We find Jarrett’s claims meritless. Jarrett contends the finding of dangerousness to be unsupported by the record because Brown’s testimony is incredible. As the finder of fact in the sentencing hearing, however, the court was entitled to accord such weight as it saw fit to Brown’s testimony. United States v. Inendino, 604 F.2d 458, 463-64 (7th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979); United States v. Williamson, 567 F.2d 610, 615-16 (4th Cir.1977). Additionally, Brown’s testimony was corroborated by Mara’s testimony and by the police records. Jarrett complains that Mara did not testify as to his personal knowledge concerning Jarrett’s participation in a burglary of a Jewel grocery store and other incidents. Pursuant to Rule 1101(d)(3) of the Federal Rules of Evidence, the Rules do not apply in sentencing hearings. Thus, the Rules relating to hearsay do not apply. A judge may properly conduct a broad inquiry, “largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). Hearsay evidence is admissible in sentencing proceedings, including- dangerous special offender proceedings. United States v. Inendino, 604 F.2d 458, 463 (7th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979). Similarly, regarding Jarrett’s claim of lack of authentication, Rule 901 of the Federal Rules of Evidence is inapplicable. In particular, however, Jarrett points out that the FBI agent at the sentencing hearing did not make copies of the police reports himself, or compare them with the originals for accuracy. However, the copies in question were xeroxes of the original — “admissible to the same extent as an original” under Rule 1003 of the Federal Rules of Evidence, unless “a genuine question is raised as to the authenticity of the original.” Fed.R. Evid. 1003. Thus, even if the Rules applied, the fact that the agent did not make the xerox or conform it with the original would make no difference. Although defense counsel called the accuracy into question in form, he did not do so in substance. Further, the district court assured Jarrett he would consider the reports “with a grain of salt,” and would consider them for the “limited purpose of ... determining whether or not there is any corroboration in this record as to the testimony given by Brown.” Tr. 343-44. Finally, Jarrett contends that the district court erred in failing to explain its findings concerning “dangerousness” under 18 U.S.C. § 3575(f). “A defendant is dangerous” under Section 3575(f) “if a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant.” 18 U.S.C. § 3575(f). In United States v. Neary, 552 F.2d 1184, 1193 (7th Cir.), cert. denied, 434 U.S. 864, 98 S.Ct. 197, 54 L.Ed.2d 139 (1977), we noted that a trial court must make additional factual determinations of “special” and “dangerous” after a verdict of guilty to support the imposition of a sentence longer than the maximum sentence normally applicable to the crime. A finding of dangerousness under Section 3575(f) involves an evaluation of the defendant’s character and a prediction of future criminal conduct, “matters which are traditionally left to [the] wide discretion of a sentencing court.” Id. Contrary to Jarrett’s contention, the district court explained its findings concerning dangerousness. The court’s explanation is in accord with the construction of Section 3575(f) in Neary. The district court said, [TJhis- defendant was in charge of an operation and he was the mastermind behind it, he was the organizer of it and he was the one who determined after the Orange Blossom robbery took place who was going to get what .... But in addition to that ... this defendant has, as a juvenile, two arrests, on 58 different occasions he has been arrested as an adult. He had two convictions as a juvenile. There were 13 as an adult. Now, when this information was finally collected ... the government apparently decided ... that society needed some kind of better protection from the continuance of this criminal enterprise in which the defendant was engaged and ... the only way in which he was making his living. ... [I]t is clear to me from this record, without any question, that this defendant has been a professional criminal all of his adult life and he qualifies beyond question as a dangerous special offender .... ... [Y]our past record also indicates to me that probation and parole are terms which, apparently, have little meaning for you. Thus, the district court found Jarrett to be dangerous to society because of his criminal life-style. As the trial court judge clearly articulated the reasoning behind his decision in finding Jarrett to be dangerous, we hold that the district court did not abuse its discretion. United States v. Madison, 689 F.2d 1300 (7th Cir.1982). VI. Ineffective Assistance of Counsel Jarrett’s final claim is that he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment. Jarrett makes numerous allegations respecting this claim, ranging from failure to timely file a motion asserting selective prosecution to failure to object to the introduction of certain evidence. As relief, Jarrett requests this court to reverse and remand for a new trial or, in the alternative, to remand for a hearing on the ineffective assistance of counsel claim. This claim is not properly before us. Just prior to sentencing, Jarrett filed a bare motion asserting ineffective assistance of counsel. The district court denied it. At a subsequently held hearing on the motion alleging denial of effective assistance, the district court indicated that it would permit defense counsel to file affidavits in support of this motion, would allow briefing, and then would reconsider its prior ruling. In response, however, defense counsel indicated he preferred not to address the issue further, opting instead to seek collateral relief pursuant to 28 U.S.C. § 2255 if this court did not rule favorably on appeal. We believe defense counsel’s original inclination is correct. As we stated in United States v. Lang, 644 F.2d 1232, 1240 (7th Cir.), cert. denied, 454 U.S. 870, 102 S.Ct. 338, 70 L.Ed.2d 174 (1981): First, this type of allegation is more appropriately dealt with by the district court. Procedurally, several vehicles are available, including Rule 33 of the Fed.R. Crim.P., Motion for a New Trial, or the collateral relief available to federal prisoners under 28 U.S.C. § 2255. Second, examination of the record does not provide clear evidence of the ineffective assistance of counsel, the failure alleged being those of litigation strategy. Nor do we have the impressions and findings of the district judge to guide us. For the foregoing reasons, the judgment of the district court is affirmed. . Although Jarrett cites to the Ninth Amendment, his argument is essentially a Tenth Amendment argument. Cf. J. Ely, Democracy and Distrust at 34-41 (1980). In any event, the Tenth Amendment provides a stronger argument than does the Ninth Amendment. . Title 18 U.S.C. § 1951 provides: (a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. (3) The term “commerce” means ... - commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction. . See, e.g., 91 Cong.Rec. 11848 (1945) (remarks of Rep. Powell) (“Extortion and robbery are crimes in all 48 States.”); id. at 11900 (remarks of Rep. Hancock) (“robbery and extortion, two crimes which are recognized as serious in every State in the Union.... The courts of the States of this country have tried thousands of cases of robbery and extortion.”); id at 11901 (remarks of Rep. Gwynne) (“Of course, the state law prohibits robbery and extortion. Unquestionably State indictments could have been returned against the members of this union. The fact is, however, such indictments were not returned. It is a breakdown of law enforcement reminding the Congress of its duty to protect interstate commerce by the enactment of this bill.”); id at 11916 (remarks of Rep. Patrick) (“If you gentlemen can convince me that any state in the Union in which these depredations to which reference has been made has not adequate laws to convict people for robbery and for every one of the things set out here, I will vote for this bill.”); id. at 11906 (remarks of Mr. Robison) (“The definition of robbery and extortion set out in this bill ... are defined in substantially the same way by the laws of every State in the Union”). . 91 Cong.Rec. 11903 (remarks of Rep. Welch); id. at 11848 (remarks of Rep. Powell). (“Mr. Speaker, this is another ridiculous threat against democracy. It is the more ridiculous because it comes from the great proponent of States’ rights. Extortion and robbery are crimes in all 48 States.... Why then gentlemen of the States’ rights school, do we need Federal legislation.”). . See generally United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 457, 85 L.Ed. 609 (1941) (“It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states.”); Hoke v. United States, 227 U.S. 308, 321, 33 S.Ct. 281, 283, 57 L.Ed. 523 (1913) (Tenth Amendment challenge to White-Slave Traffic (Mann) Act, ch. 395, 36 Stat. 825, rejected); United States v. Staszcuk, 517 F.2d 53, 58-59 (7th Cir.), (en banc), cert. denied, 423 U.S. 837, 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_appel2_8_3	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 concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant. Adolfo DOLMETTA and Vittorio Coda, as the liquidators of Banca Privata Italiana, S.p.A. (in compulsory liquidation), Plaintiffs-Appellants, v. UINTAH NATIONAL CORPORATION, David M. Kennedy, Sterling Bancorp a/k/a Standard Prudential Corporation, Sterling National Bank and Trust Company of New York, Talcorp, Inc:, Solomon Eisenrod and Brooke Grant, Defendants-Appellees. No. 959, Docket 82-7810. United States Court of Appeals, Second Circuit. Argued March 4, 1983. Decided June 28, 1983. Frank H. Wohl, New York City (Daniel R. Benson, Rosenman, Colin, Freund, Lewis & Cohen, New York City, of counsel), for plaintiffs-appellants. Kevin P. Hughes, New York City (Irwin H. Warren, Joseph S. Allerhand, Weil, Gotshal & Manges, New York City, of counsel), for defendant-appellee Uintah National Corp. Jay G. Strum, New York City (Phillip A. Geraci, Kaye, Scholer, Fieman, Hays & Handler, New York City, of counsel), for defendants-appellees Sterling Bancorp and Sterling Nat. Bank & Trust Co. of New York. James A. Moss, New York City (Herrick, Feinstein, New York City, of counsel), for defendants-appellees Talcorp., Inc. and Solomon Eisenrod. Merrell E. Clark, Jr., New York City (Tucker Webb, Winthrop, Stimson, Putnam & Roberts, New York City, of counsel), for defendant-appellee David M. Kennedy. William M. Barron, New York City (Walster, Conston, Schurtman & Gumpel, New York City, of counsel), for defendant-appellee Brooke Grant. Before FEINBERG, Chief Judge, and TIMBERS and CARDAMONE, Circuit Judges. CARDAMONE, Circuit Judge: This diversity case arises in the aftermath of the financial chicanery engaged in by the notorious international financier, Michele Sindona, whose unscrupulous machinations resulted in his conviction for fraud. See United States v. Sindona, 636 F.2d 792 (2d Cir.1980) (affirming conviction), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 302 (1981). Plaintiffs are two liquidators of a Sindona-owned bank in Milan, Italy. They allege that 27 million dollars were embezzled from the bank, funneled out of Italy in 1973, and used to purchase 1.6 million shares, or 53 per cent, of the common stock of Talcott National Corporation, a large, publicly-traded American banking company. Plaintiffs instituted an action in the United States District Court for the Southern District of New York (Brieant, J.) to recover the 1.6 million shares. In their complaint they alleged seven causes of action which, on motion of the defendants, the district court dismissed as time-barred under the applicable New York statutes of limitations. We affirm the dismissal of plaintiffs’ second through seventh causes of action, but the first cause of action was not time-barred. Therefore, the dismissal of that action is reversed and the matter remanded to the district court for further proceedings. BACKGROUND Plaintiffs Adolfo Dolmetta and Vittorio Coda, the liquidators of Banca Privata Italiana S.p.A. (Bank), set forth the facts giving rise to their complaint as follows. In early 1973 Sindona, then in complete control of Banca Unione, fraudulently diverted 27 million dollars to Fasco International Holding, S.A., a Luxembourg corporation that Sindona also controlled. Simultaneously, he caused Fasco International to use the misappropriated funds to purchase 1.6 million shares of Talcott National Corporation. Shortly thereafter, Banca Unione became Banco Privita Italiana, S.p.A. On September 26, 1974, the day before the Italian Ministry of the Treasury ordered the Bank into liquidation, Sindona caused the Talcott shares to be transferred from Fasco International to its Delaware affiliate Fasco, Inc. That same day Fasco, Inc. granted defendants Sterling Bancorp and its subsidiary Sterling National Bank and Trust Company of New York (Sterling Bank) an option to purchase the Talcott shares. On April 1, 1975 defendant Talcorp, Inc. purchased the shares from Fasco, Inc. Disclaiming beneficial ownership of the shares, Talcorp maintained that it was simply holding the stock on behalf of Sterling Bancorp and Sterling Bank. Sterling Bancorp and Sterling Bank allegedly financed Talcorp’s purchase of the Talcott shares and retained the right to dictate subsequent sales of the shares. On January 29, 1976 defendant Uintah National Corporation purchased the shares from Talcorp, purportedly with knowledge of the way in which they had been acquired. Uintah had been formed in late 1975 by defendants David M. Kennedy and Brooke Grant. Kennedy had been a director of Fasco International since shortly after that company acquired the Talcott shares. In his capacity as director, Kennedy had voted to ratify Fasco International’s purchase of these shares. During the period 1974 through 1975, Kennedy had also held a proxy over the shares. Originally filed on January 29, 1982 and twice amended, plaintiffs’ complaint asserts seven causes of action. The first cause of action, against Uintah only, alleges that Uintah acquired the Talcott shares in bad faith with knowledge of the Bank’s adverse claim to the shares, and that Uintah therefore is a constructive trustee under New York law and holds the stock for the Bank’s benefit. The second through sixth causes of action seek damages from all defendants for their asserted participation in the January 29 transfer, which participation was allegedly part of a fraudulent scheme directed against the Bank. Specifically, the liquidators allege that the defendants defrauded the Bank by conveying the shares to Uintah (second claim); the defendants aided and abetted Sindona’s fraud on the Bank (third claim); the defendants aided and abetted Sindona’s breach of fiduciary duty to the Bank (fourth claim); the defendants were unjustly enriched as a result of their fraud against the Bank (fifth claim); and the defendants violated the anti-fraud provision of section 10(b) of the .Securities Exchange Act of 1934 (sixth claim). Plaintiffs’ seventh claim alleges that the Talcott stock transactions were fraudulent conveyances and that under New York law the transfers should be set aside. Subsequent to the filing of the complaint, defendants moved to dismiss the action as barred by the applicable statutes of limitations and, alternatively, as failing to state claims upon which relief could be granted. Reasoning that the law of New York, the forum state, governed the timeliness of plaintiffs’ claims, which the district court characterized as sounding in fraud, it held that the applicable limitations period was six years from the date of the action complained of or two years from the date of discovery, whichever period ended later. Finding that plaintiffs knew or should have known of the acts complained of more than two years prior to the filing of their complaint, the district court concluded that the instant suit was commenced beyond the two-year limitations period. It further held that the suit was untimely under the alternative six-year limitations period because the Bank’s only injury occurred when Sin-dona embezzled funds in 1973, approximately nine years before the plaintiffs filed their complaint. Consequently, Judge Brieant dismissed plaintiffs’ complaint in its entirety. DISCUSSION Plaintiffs contend that the district court erred in the manner in which it applied the six-year limitation. According to plaintiffs the six-year limitations period commenced on the date of the transfer of the Talcott stock to Uintah. Under this theory plaintiffs’ complaint of January 29, 1982 was filed timely within six years of the accrual of the claims stated because, under New York law, the day of accrual is excluded. See N.Y.Gen.Constr. Law § 20 (McKinney Supp. 1982-1983). First Cause of Action With respect to the Bank’s first claim, which seeks to impose a constructive trust over the Talcott shares held by Uintah on the ground that Uintah acquired the shares in bad faith, the district court erred in dismissing the action as untimely. Since a cause of action for a constructive trust is one “for which no limitation is specifically prescribed by law,” it is governed by New York’s six-year statute of limitations, N.Y. Civ.Prac.Law and Rules (CPLR) 213(1) (McKinney 1972) and runs from the occurrence of the wrongful act or event which creates a duty of restitution. See Scheuer v. Scheuer, 308 N.Y. 447, 450, 126 N.E.2d 555 (1955); Augustine v. Szwed, 77 A.D.2d 298, 301, 432 N.Y.S.2d 962 (4th Dep’t 1980); Mann v. Mann, 77 A.D.2d 866, 431 N.Y.S.2d 63 (2d Dep’t 1980). In a felicitous and much-quoted phrase Judge Cardozo said, “[a] constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.” Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378 (1919) (citation omitted); see Simonds v. Simonds, 45 N.Y.2d 233, 241, 408 N.Y.S.2d 359, 380 N.E.2d 189 (1978); 5 A. Scott, The Law of Trusts § 462, at 3413 (3d ed. 1967). Here plaintiffs claim that Uintah holds 1.6 million shares of Talcott stock which in good conscience — knowing the unsavory circumstances that made the purchase possible — it should not retain, but should deliver to plaintiffs standing in the shoes of the defrauded Italian Bank. Since Uintah acquired the Talcott shares on January 29,1976 the claim that it held the stock in constructive trust could not have accrued until January 29,1976, the date Uintah began its allegedly wrongful possession as against the Bank. Uintah’s argument — that because other defendants adversely possessed the stock prior to 1976, a cause of action upon a theory of constructive trust arose prior to 1976 — misses the mark. While such a claim against other defendants may have accrued prior to 1976, plaintiffs’ claim of a constructive trust is against Uintah only, not against the other defendants. Cf. Kunstsammlungen Zu Weimar v. Elicofon, 678 F.2d 1150,1161 (2d Cir.1982) (conversion action under New York law to recover stolen property from transferee of thief not time-barred even though action against thief would have been untimely because claim against transferee did not accrue until transferee’s wrongful possession of property). Since plaintiffs timely asserted their cause of action for a constructive trust against Uintah on January 29,1982, within six years of the beginning of Uintah’s allegedly wrongful possession of the Talcott stock, the action was improperly dismissed. Other Causes of Action The district court correctly dismissed the six remaining causes of action. With respect to claims two, three and six, which generally allege that Sindona and the named defendants defrauded the Banca Unione through some conspiracy of unknown magnitude, the applicable six-year statute of limitations accrued when Banca Unione suffered some loss as a result of the defendants’ fraudulent acts, see Stull v. Bayard, 561 F.2d 429, 432 (2d Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 783 (1978). As the district court correctly recognized, the losses from the fraud, if any, occurred in 1973 when Sindona embezzled Banca Unione’s funds. Thus, plaintiffs’ causes of action for the fraud perpetrated against Banca Unione accrued no later than 1973 and were barred in 1979, several years prior to the filing of the complaint. Plaintiffs attempt to avoid this conclusion by characterizing the transfer of Talcott stock in January 1976 as a fraud separate and distinct from the 1973 embezzlement by Sindona. This analysis is artificial and unconvincing. The 1976 transfer did not represent a new and separate loss to the Bank. Rather, the conveyance was at most a post-fraud secretion designed to preserve the success of a fraud that had occurred long since. Plaintiffs’ fourth cause of action, which alleges that the defendants aided and abetted Sindona’s breach of his fiduciary duty, is also stale. Despite the imaginative title plaintiffs assigned to this claim, its substance is the same fraudulent embezzlement scheme underlying claims two, three and six. When applying a statute of limitations, courts look at the essence of the stated claim and not the label by which a plaintiff chooses to identify it. See Morrison v. National Broadcasting Co., 19 N.Y.2d 453, 459, 280 N.Y.S.2d 641, 227 N.E.2d 572 (1967). The fourth cause of action sounds in fraud; as such, it is time-barred for the same reasons as causes of action two, three and six. Moreover, even were plaintiffs’ claim of breach of a fiduciary duty to be analyzed separately from claims two, three and six, it would still be untimely. Contrary to plaintiffs’ contention, the defendants could not have aided and abetted a breach of a fiduciary duty by Sindona as late as 1976 because, as the district court correctly noted, Sindona had no fiduciary obligation to the Bank in 1976. While Sindona, as Banca Unione’s majority shareholder, was alleged to have exerted such dominance over that bank pri- or to July 1974 as to give rise to fiduciary obligations, see generally Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 245, 84 L.Ed. 281 (1939); Perlman v. Feldmann, 219 F.2d 173,175 (2d Cir.), cert. denied, 349 U.S. 952, 75 S.Ct. 880, 99 L.Ed. 1277 (1955); Box v. Northrop Corp., 459 F.Supp. 540, 547 (S.D. N.Y.1978), aff’d mem., 598 F.2d 609 (2d Cir.1979), his control was clearly extinguished prior to 1976. The'record before us reveals that in September 1974 Banca Unione went into liquidation and court-appointed liquidators took over the firm’s affairs. At that point Sindona’s dominance over the bank’s affairs and any fiduciary duty he owed it were at an end. Thus, if the defendants aided and abetted Sindona’s breach of a fiduciary duty, that aiding and abetting must have occurred prior to 1976, more than six years before the instant complaint was filed. Because of this the fourth cause of action is time-barred under New York’s applicable six-year statute of limitations. See CPLR 213 (McKinney Supp. 1982-1983). The fifth cause of action, denominated “unjust enrichment” is also time-barred as against all defendants save Uintah. The essence of the fifth claim is that the defendants were unjustly enriched as a result of their fraudulent acquisition of Talcott stock. Since all of the defendants, except Uintah, acquired their alleged interests in this stock before January 29, 1976, the actions for unjust enrichment accrued, if at all, more than six years prior to the filing of the complaint. These claims are, therefore, also untimely under the applicable six-year limitation period. As to Uintah, the fifth cause of action, although not stale, was properly dismissed since it fails to state a claim upon which relief may be granted. To recover on a theory of unjust enrichment a plaintiff must prove that the defendant was enriched, that such enrichment was at plaintiffs expense, and that the circumstances were such that in equity and good conscience the defendant should return the money or property to the plaintiff. See Indyk v. Habib Bank Ltd., 694 F.2d 54, 57 (2d Cir.1982). Here plaintiffs have failed to allege that Uintah was enriched at the expense of the Bank by virtue of Uintah’s January 29, 1976 stock acquisition. Plaintiffs’ seventh and final claim is that the 1976 transfer to Uintah of the Talcott stock was a fraudulent conveyance as to Fasco International’s creditors (i.e., the Bank) which must be set aside. Here, again, the period of limitations governing such claims under New York law is six years. CPLR 213(8) (McKinney Supp. 1982-1983); see Quadrozzi Concrete Corp. v. Mastroianni, 56 A.D.2d 353, 358, 392 N.Y. S.2d 687 (2d Dep’t 1977), appeal dismissed, 42 N.Y.2d 824 (1977). Accepting as true the allegations of plaintiffs’ complaint, the last transfer of Talcott stock by Fasco, Inc. occurred on April 1,1975. Consequently, any action arising out of a conveyance that defrauded Fasco’s creditors would have accrued on or before April 1,1975. Plaintiffs’ failure to file suit until January 29, 1982 requires the dismissal of the seventh cause of action. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant? A. trustee in bankruptcy - institution B. trustee in bankruptcy - individual C. executor or administrator of estate - institution D. executor or administrator of estate - individual E. trustees of private and charitable trusts - institution F. trustee of private and charitable trust - individual G. conservators, guardians and court appointed trustees for minors, mentally incompetent H. other fiduciary or trustee I. specific subcategory not ascertained Answer:
songer_bank_r1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether or not the first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt. KLEIN’S OUTLET, Inc., et al. v. LIPTON. No. 21684. United States Court of Appeals Second Circuit. Argued April 10, 1950. Decided May 1, 1950. William R. Klein, New York City, for appellants. Arthur Morris, New York City, for appellee. Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges. PER CURIAM. The controlling question is whether the appeal must be dismissed because taken too late. An involuntary petition in bankruptcy was dismissed on March 2, 1948 with reservation of jurisdiction to pass on the accounting of the receiver in bankruptcy, costs and allowances, and disposition of any funds remaining in the receiver’s hands. Acting under this reservation, the referee in bankruptcy made a report in July 1949. His report came before the district court for confirmation and, after argument and reargument, was confirmed, as modified, by an order entered September 22, 1949. On October 6th the appellants moved to “resettle” this order. In a memorandum dated November 4th the district judge characterized the motion as one seeking “in effect, a second reargument,” and stated: “No reason appears for further consideration of this matter by this Court. The order heretofore made will stand.” An order denying the motion was entered November 16, 1949. Notice of appeal was filed on December 22, 1949. Verbally the notice of appeal is from’ the order of November 16, 1949. Treating it literally would bring up for review only the denial of a resettlement of the prior order. It is obvious that such denial was correct, since in no respect did that order fail to conform to the court’s decision. We shall treat the motion, as did the court below, as a motion for reargument. So considered, the appeal must be taken from the original order of September 22nd, not from the order denying the motion for reargument, since the refusal to entertain a motion for reargument, or denial of the motion, if entertained, is not the subject of appeal. Wayne United Gas Co. v. Owens Co., 300 U.S. 131, 137, 57 S.Ct. 382, 81 L.Ed. 557. The time to appeal from a judgment, order or decree of the bankruptcy court is prescribed by section 25 of the Bankruptcy Act, and the maximum, time allowed is 40 days. 11 U.S.C.A. § 48. If +hr time began to run on September 22, 1949, the appeal taken on December 22 was obviously too late; if, however, the time did not begin to run until the motion for reargument was denied on November 16, the appeal’ was timely. Ever since Brockett v. Brockett, 2 How. 238, 11 L.Ed. 251, it has been settled law that when a motion for reargument is seasonably presented, the time for appeal does not begin to run until the motion is disposed of, if the motion is “entertained” by the court. Denholm & McKay Co. v. Commissioner, 1 Cir., 132 F.2d 243, 247 and cases there cited. On the other hand, “A defeated party who applies for a rehearing and does not appeal from the judgment or decree within the time limited for so doing, takes the risk that he may lose his right of appeal, as the application for rehearing, if the court refuse to entertain it, does not extend the time for appeal.” Wayne United Gas Co. v. Owens Co., 300 U.S. 131, 137, 57 S.Ct. 382, 385, 81 L.Ed. 557. (Italics added). Were this not so, a dissatisfied litigant could indefinitely extend his time for appeal by the simple expedient of filing successive motions for rehearing. On the other hand, after he has moved for a rehearing he is in the embarrassing situation of not knowing whether the court will “entertain” his motion or refuse to “entertain” it. Entertainment of the motion apparently means that the court considers on the merits the grounds for rehearing asserted in the motion. Denholm & McKay Co. v. Commissioner, 1 Cir., 132 F.2d 243, 247. If the court “entertains” the motion, even though it is denied, the time for appeal is extended; if the court refuses to entertain it, the time for appeal is not extended. It is clear from Judge Holtzoff’s memorandum opinion that he did not “entertain” the motion. Consequently, under the rule announced by the Supreme Court in the Wayne Gas Co., case, supra, the 40 days allowed for appeal from the order of September 22 expired on November 1st. On that date the motion for reargument filed on October 6 was still under advisement by the court. The appellants could not know whether or not the court would “entertain” it. In such a case it would plainly be fair to relax the rule of the Wayne case to the extent of deducting from the time elapsing between the entry of a judgment and the taking of an appeal the period during which the court holds under advisement the motion for reargument. Whether such a relaxation would be permissible we need not now decide. Even if it were, it would not save the present appeal. The period during which the motion was under advisement, even if such period be deemed to have continued until entry of the order of November 16, was only 41 days. Deducting that period from the 91 days which elapsed between September 22 and the notice of appeal on December 22, would leave 50 days. Under either view the appeal was untimely. Accordingly it must be dismissed. The appellee’s motion is granted and the appellants’ motion denied. Question: Is the first listed respondent bankrupt? A. Yes B. No 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. LIVERPOOL & LONDON & GLOBE INS. CO., LTD. v. OTIS ELEVATOR CO. No. 5878. United States Court of Appeals Fourth Circuit. Argued June 27, 1949. Decided July 28, 1949. Charles McCamic and Wayne T. Brooks, Wheeling, W, Va. (Frank A. O’Brien, O’Brien & O’Brien, and McCamic & Clarke, Wheeling, W. Va., on the brief), for appellant. Carl G. Bachmann and Joseph R. Curl, Wheeling, W. Va. (J. Donald Ezell, Wheeling, W. Va., bn the brief), for appellee. Before PARKER, SOPER and DOBIE, Circuit Judges. SOPER, Circuit Judge. On December 2, 1947, Wheeling Steel Corporation' suffered a fire loss in its plant at Wheeling, West Virginia, in the sum of $79,440.80, which was paid by Liverpool & London & Globe Insurance Co., Ltd., under a policy of insurance covering the plant. The fire occurred while Otis Elevator Company was making repairs to an elevator in the plant under a contract with Wheeling, and the Insurance Company, claiming that the fire was caused by the negligent manner in which Otis did the work, brought this suit as the subrogee of the Steel Corporation. The case was submited to a jury and both parties offered a prayer for directed verdict, but these were denied and’the jury found for the defendant. ■ The plaintiff appealed contending that the judge erred in not directing a verdict in its favor and in certain instructions contained in the charge to the jury. The case turns on the nature of the work that was in progress when the fire occurred, and especially upon the relationship of the contracting parties to the work, since the Insurance Company sues in its character as subrogee, and can assert against Otis only such right as Wheeling possessed, so that if Wheeling had no right of action against Otis, none passed to the Insurance Company. St. Louis, I. M. & S. Ry. Co. v. Commercial Union Ins. Co., 139 U.S. 223, 235, 11 S.Ct. 554, 35 L.Ed. 154. • The. contract was contained in an interchange of letters in which it was agreed that Otis should make certain changes and repairs to the elevator for $1715 and that Otis’ men should have uninterrupted use of the elevator during the woik; but the contract provided that Wheeling should furnish certain material for the job and should do all the “cutting with torch, welding, drilling, etc. required in the removal of old material and installation of the new material.” In the proposal of Otis, there was a reference to provisions printed on the back of the page to the effect that Otis would not be liable for any loss from a number of causes, including fire. Wheeling’s acceptance reiterated the description ■ of the work to be done by each party, but did not include the exculpatory clauses. The quoted provision of the contract as to welding was all important, since it furnishes the key to the problem to be solved. For the execution of the work on the elevator, Otis furnished two men, Helfenbine, a superintendent, and Wolfe, his assistant, and Wheeling furnished Kryah, a welder. Kryah brought to the job the tools of his trade and three fire extinguishers supplied by Wheeling. The operation of welding produces sparks and fire prevention is recognized as part of a welder’s duty. On this occasion each man took a fire extinguisher. Kryah sprayed the walls of the elevator shaft with pyrene, and Wolfe sprayed the floor of the cage, but fire curtains or spark arresters were not used, although they should have been used, according to uncon-tradicted expert testimony, in order to prevent the escape of sparks from the shaft into the adjoining rooms of the building through perforations in the metal partitions or doors which gave access to the shaft. A short time before the fire broke out, Wolfe was inside the cage so as to move it up and down when required in the progress of the work. He had a fire extinguisher and was told to look out for sparks. The floor of the car at that time was level with the third floor of the building. Helfenbine and Kryah, each armed with a fire extinguisher, were standing on top of the cage. Helfenbine instructed Kryah where to weld but Kryah himself decided when to perform the operation and how to perform it, selecting the pressure and size of the tip to be used. When the welding started, sparks as usual were emitted, but Wolfe noticed no sparks coming into the car or falling between the car and the shaft. Nevertheless, a short time after the welding started, Wolfe discovered smoke and when the car was lowered to the mezzanine floor between the first and second floors, a raging fire was discovered in a room on the mezzanine adjoining the shaft near a pile of synthetic rubber which was stored in burlap sacks. This was the origin of the fire which caused the substantial damage referred to. Upon this testimony, the Insurance Company contends that a verdict in its favor should have been directed. Since no explanation of the cause of the fire other than the sparks from the welding operation was offered, it is argued that the judge should not have left to the jury to decide whether the welding caused the fire; and since the evidence of negligence in the failure to use fire curtains was not controverted, and Otis was an independent contractor whose men were in charge of the elevator at the time, it is contended that Otis should have been held liable for the loss. This line of argument, however, ignores the patent fact that Wheeling, and not Otis, was primarily responsible for the welding, and actually performed it. Wheeling furnished one of its skilled employees as the welder, supplied the welding equipment and all the means of fire prevention which were used, inadequate though they were; and the welder actually did the work in his own way and was subject to the control of Otis only as to what welding should be done. If we assume, in the absence of any other explanation, that the welding caused the fire, it is obvious that the major part, if not all of the blame must fall upon Wheeling since it agreed to do the work and actually performed it in a negligent manner. It is too clear for argument, under the undisputed facts, that the welding operation was Wheeling’s work and that Kryah remained Wheeling’s employee in the performance of the work, and that this relationship was not changed so as to relieve Wheeling of responsibility for Kryah’s action by the mere fact that Otis pointed out the work to be done. He remained the employee of Wheeling in the performance of the work which Wheeling had contracted to do. See Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480; Restatement of Agency, §§ 220, 227. The strongest statement that can be made as to the liability of Otis is that it should share the blame for the catastrophe, since it had charge of the repair work which could not be done without the welding operation, had possession of the place in which the welding was done, ordered the operation to proceed, and participated in the faulty fire protection procedure; or in other words, that Otis and Wheeling both contributed to the negligence which caused the loss. Thus it is plain, looking at the case in the aspect most favorable to the Insurance Company, that Wheeling, because of its contributory negligence, had no right of action against Otis for the damage to the building, and hence the Insurance Company, which stands in Wheeling’s shoes, cannot prevail in its action. The uncontradicted facts created such a situation that the prayer of Otis for a directed verdict in its favor might well have been granted. Having reached this conclusion, it is unnecessary to consider the contentions of the plaintiff that the judge should have instructed the jury more fully as to the respective obligations of Otis and Wheeling under the contract between them. Affirmed. 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_habeas	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts. Wesley P. TART, Appellant, v. COMMONWEALTH OF MASSACHUSETTS, et al., Appellees. No. 90-1929. United States Court of Appeals, First Circuit. Heard Jan. 7, 1991. Decided Nov. 15, 1991. Michael J. Traft, Boston, Mass., for appellant. Paula J. DeGiacomo, Asst. Atty. Gen., with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief, for appellees. Before CAMPBELL and CYR, Circuit Judges, and POLLAK, Senior District Judge. Of the Eastern District of Pennsylvania, sitting by designation. CYR, Circuit Judge. Wesley Tart, captain of a commercial fishing vessel and holder of a federal commercial fishing license, appeals district court orders rejecting various collateral challenges to his state court conviction for landing raw fish without a commercial fishing permit from the Commonwealth of Massachusetts. We affirm. I BACKGROUND In November 1986 an officer of the Massachusetts Department of Fisheries, Wildlife, and Environmental Law Enforcement, while accompanied by an agent of the National Fishery Service, observed Tart’s fishing vessel, “Jeromi,” unloading raw fish at a Gloucester pier. Shortly after the officers identified themselves, Tart acceded to their request for permission to come aboard. When the officers asked to see his federal fishing license and a state fishing permit, Tart said that he did not believe he was required to obtain a state commercial fishing permit since he held a federal license. The officers seized Jeromi’s cargo of raw fish under the authority of a Massachusetts statute which provides that “no person shall fish for or take fish for commercial purposes in the coastal waters, or land raw fish, whether frozen or unfrozen, in the commonwealth, for the purpose of sale unless he is a holder of a commercial fishing permit.” Mass.Gen.L. ch. 130, § 80 (1991) (emphasis added). Five days later, the same state fisheries officer, accompanied by a local police officer and another fisheries department agent, once again observed Tart unloading raw fish. Tart was arrested after informing the officers that he had not obtained a Massachusetts commercial fishing permit as instructed. Following his state court conviction, Tart was sentenced to thirty days, all but seven days suspended, and fined fifty dollars. After Tart’s conviction was affirmed on direct appeal to the Massachusetts Supreme Judicial Court (“SJC”), see Commonwealth v. Tart, 408 Mass. 249, 557 N.E.2d 1123 (1990), Tart filed a habeas corpus petition with the United States District Court for the District of Massachusetts. The district court dismissed the entire habeas petition for failure to exhaust state remedies with respect to one claim. Alternatively, the district court ruled that all six claims for relief were meritless. II DISCUSSION A. Procedural Bars to Federal Habeas Review 1. Instruction on Burden of Proof of Licensure a. Exhaustion of State Remedies Tart first contends that the district court erroneously dismissed his habeas petition for failure to resort to available state remedies for challenging a state court jury instruction that Tart, rather than the Commonwealth, bore the burden of proof as to whether Tart possessed a valid Massachusetts commercial fishing permit. A federal court may not issue a writ of habeas corpus “unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.” 28 U.S.C. § 2254; see also Ex parte Royall, 117 U.S. 241, 250-54, 6 S.Ct. 734, 739-41, 29 L.Ed. 868 (1886). Where a section 2254 petition pleads multiple federal claims, the federal character of any of which has not fairly been presented to the state courts, the federal court must dismiss the entire petition, including any exhausted claims. See Rose v. Lundy, 455 U.S. 509, 513-521, 102 S.Ct. 1198, 1200-05, 71 L.Ed.2d 379 (1982); Gagne v. Fair, 835 F.2d 6, 9 (1st Cir.1987); Dougan v. Ponte, 727 F.2d 199, 200 (1st Cir.1984). The petitioner then may elect to dismiss all unex-hausted claims or seek their disposition in state court before proceeding under section 2254. See Rose, 455 U.S. at 520, 102 S.Ct. at 1204. Citing to our decision in Nadworny v. Fair, 872 F.2d 1093 (1st Cir.1989), Tart argues that he adequately alerted the state courts to the federal nature of his jury instruction challenge by citing several Massachusetts decisions whose holdings explicitly relied on federal caselaw. We have delineated the pertinent criteria for determining whether the state court fairly was alerted to the federal character of a constitutional claim. Among other criteria, we inquire whether the petitioner presented the state court with a claim whose substance must have alerted the state court to its federal character. See id. at 1097. Generally, citation to a state decision whose holding is prominently predicated on federal precedent is sufficient. See id. at 1103. The “fair presentation” test is based in principles of comity, and accords appropriate respect to the States’ prerogative “to develop a caselaw rich enough to sustain the protection of federal constitutional rights under the[ir] ... own precedent.” Id. at 1101. The federal habeas forum must emphasize substance over form by scrutinizing the “essence” of the legal theory previously presented to the state court. See id. The brief presented to the SJC cited at least two SJC decisions explicitly and prominently predicated on federal constitutional caselaw. See Commonwealth v. Claudio, 405 Mass. 481, 541 N.E.2d 993 (1989) (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952)); Commonwealth v. Moreira, 385 Mass. 792, 434 N.E.2d 196 (1982) (citing Sandstrom, 442 U.S. at 514, 99 S.Ct. at 2454; Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); McInerney v. Berman, 473 F.Supp. 187 (D.Mass.1979), aff'd, 621 F.2d 20 (1st Cir.1980), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 85 (1980)). The Commonwealth proposes two bases for disputing the sufficiency of Tart’s presentation to the SJC. First, the facts in both SJC cases, Claudio and Moreira, were so dissimilar from the present case that the SJC was not fairly alerted to their bearing on petitioner’s federal constitutional claim, particularly since both cases concerned state statutes governing the presumptive effect a jury must accord laboratory tests for detecting alcohol and controlled substances, whereas the instant case concerns the burden of proving licen-sure. We examine the theory underlying petitioner’s constitutional claim in order to determine whether Claudio and Moreira reasonably should have alerted the SJC to the essential federal constitutional tenets relied on in Tart’s section 2254 petition; namely, the federal due process implications of a defendant’s right to require the State to prove each element of the criminal charge beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 361-362, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970), and the federal constitutional limitations on State legislative power to define a crime so as to shift to the criminal defendant the burden of proof relating to an essential element of the crime. See Mullaney v. Wilbur, 421 U.S. 684, 703-704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975) (state may not transfer to defendant the burden of proving that he did not act in heat of passion on sudden provocation, since historical trend treats lack of justification as element of crime). The following Massachusetts statute provided the basis for the state court instruction to the Tart jury: A defendant in a criminal prosecution, relying for his justification upon a license, appointment, admission to practice as an attorney at law, or authority, shall prove the same; and, until so proved, the presumption shall be that he is not so authorized. Mass.Gen.L. ch. 278, § 7 (1981). Were the lack of a valid state fishing permit an essential “element” of the criminal offense defined in section 80, the presumption prescribed in the Massachusetts statute might indeed be found infirm on federal due process grounds, as were the mandatory presumptions at issue in Claudio and Mor-eira. Second, the Commonwealth argues that Tart necessarily focused on state law grounds in presenting his earlier claim before the state courts, because the federal cases cited in Claudio and Moreira offered Tart no prospect of prevailing on his federal constitutional claim. The district court apparently concluded that the Massachusetts Constitution is more protective of Tart's due process rights in the present regard and, further, that it would be permissible under the Federal Constitution to shift the burden of proof so as to require Tart to establish possession of a state fishing permit. The proper inquiry under the exhaustion doctrine focuses on the content of the petitioner’s presentation of the claim, with a view to whether the state court fairly was alerted to its federal character and whether the state court was afforded an opportunity to pass on the validity of the federal constitutional grounds underlying the claim. Neither the relative merit of a colorable federal claim vis-a-vis a parallel state law claim, nor the ultimate determination by the state court as to whether the federal theory warrants acceptance, generally provides an accepted basis for triggering the exhaustion doctrine. Further, as the federal easelaw cited in Claudio and Moreira exemplifies, the precise scope of the States’ power to shift the burden of proof to a criminal defendant remains unsettled under federal constitutional law. Compare Mullaney v. Wilbur, 421 U.S. at 697, 95 S.Ct. at 1888-89, with In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072-73 (discussing when proof of fact is constitutionally necessary to establish crime). We therefore conclude that Tart exhausted available state remedies. b. Preclusive Effect of State Procedural Default Having concluded that Tart’s entire ha-beas petition was not barred for failure to exhaust state remedies, we turn to consider whether his first habeas claim, based on the above-referenced jury instruction, was properly dismissed. The district court concluded, inter alia, that Tart’s failure to assert a contemporaneous challenge to the jury instruction, and the SJC’s decision not to waive the procedural default, constituted an independent state law ground for the SJC’s refusal to grant relief, thus precluding district court consideration of any federal basis for the same claim. See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). Tart contends that the Massachusetts contemporaneous objection rule was waived when the SJC implicitly concluded that its refusal to provide relief from the state procedural default would not constitute a “miscarriage of justice” under federal constitutional principles. The mere fact that a state appellate court engages in a discretionary, and necessarily cursory, review under a “miscarriage of justice” analysis does not in itself indicate that the court has determined to waive an independent state procedural ground for affirming the conviction. See Puleio v. Vose, 830 F.2d 1197, 1200 (1st Cir.1987); McCown v. Callahan, 726 F.2d 1, 3 (1st Cir.1984). We will not infer waiver of a contemporaneous objection rule unless the state appellate court has made it “reasonably clear that its reasons for affirming a conviction rest upon its view of federal law.” See Doucette v. Vose, 842 F.2d 538, 540 (1st Cir.1988). For reasons of comity and in recognition of the important state interests served by state procedural rules, where the state court has grounded its disposition of the claim on a state procedural rule violation, the petitioner cannot present the claim to us absent a showing of “cause” for noncomplianee with the state rule, as well as actual prejudice. See Wainwright, 433 U.S. at 86-87, 97 S.Ct. at 2506; Carsetti v. State of Maine, 932 F.2d 1007, 1009 (1st Cir.1991). A mere assertion of attorney inadvertence normally does not constitute sufficient “cause” to excuse a state procedural default. See Palmariello v. Superintendent of M.C.I. Norfolk, 873 F.2d 491, 493 (1st Cir.1989). Under the Massachusetts contemporaneous objection rule, an objection to a jury instruction must be made before the jury retires to deliberate. See Mass.R.Crim.P. 24(b). The SJC first determined that Tart’s failure to object at trial meant that his jury instruction challenge was entitled to discretionary appellate review only for “miscarriage of justice.” Tart, 557 N.E.2d at 1134-1135. The SJC further decided that the trial court had bracketed the challenged jury instruction with other, proper statements of the law, correctly placing upon the Commonwealth the burden of proving that Tart had not obtained a state fishing permit. Id. 557 N.E.2d at 1135. Although relevant to the state exhaustion issue, Tart’s reliance on the fact that his SJC brief cited to state caselaw premised on federal constitutional law is of no avail in the present context, since the SJC decision cited to none of those state cases. There is no indication in the SJC’s discussion of this issue that “the court researched, examined in depth, or intended to rely upon, federal law in the area.” McCown, 726 F.2d at 4. Instead, throughout its discussion on this issue the SJC merely proceeded under the view that there was “no substantial risk of a miscarriage of justice” because the trial court may not in fact have effected a shift in the burden of proof to Tart. See Tart, 557 N.E.2d at 1135. The clear import of its discussion is that the SJC based its decision strictly on Tart’s procedural default under Mass. R.Crim.P. 24(b). Thus, Tart was required to show “cause” for failure to comply with the Massachusetts contemporaneous objection rule. Wainwright, 433 U.S. at 86-87, 97 S.Ct. at 2506. As trial counsel inadvertence does not constitute “cause,” see Palmariello, 873 F.2d at 493, Tart’s jury challenge claim is ineligible for federal habeas review. B. The Merits 1. Fourth Amendment Claim The second habeas claim asserts a fourth amendment violation. Tart argues that the fisheries officers first boarded the Jeromi without a warrant and with no reasonable suspicion justifying a documentation check. The Commonwealth supports the first boarding as either a valid consent search or a reasonable documentation check of a seagoing vessel. The SJC and the district court concluded that the first search was a reasonable administrative inspection in a closely-regulated industry and that the warrant requirement was obviated by reason of the administrative criteria restricting the fisheries officer’s discretion to a mere request for licensure documentation. See Tart, 557 N.E.2d at 1127-1130 (citing New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987)). The SJC and the district court determined that the documentation check in this case was a valid warrantless administrative search. Massachusetts law provides that state fishing permits “shall be produced for examination upon demand of any authorized person.” Mass.Gen.L. ch. 130, § 2. Tart’s claim is based entirely on the officers’ request to be shown a fishing permit. Since the fisheries officers observed raw fish being unloaded from the Jeromi prior to their request to come aboard, and boarded the vessel only to request documentation, Tart’s failure to produce a state fishing permit provided the officers with probable cause to believe Tart had violated section 80 and justified the ensuing seizure. Under the test set out in New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), a warrantless inspection in a “closely-regulated” industry, pursuant to statute, is valid if (1) it serves a “substantial” governmental interest, (2) is necessary to effectuate an administrative scheme, and (3) is structured so as to limit the discretion of the inspecting officer, thus providing a “constitutionally adequate substitute for a warrant.” Id. at 702-703, 107 S.Ct. at 2644. Tart appears to concede that the fishing industry is “closely-regulated” and that the first two prongs of the Burger test were satisfied. See infra at § B.2. Under the third prong of the Burger test, the regulatory statute must (1) alert owners that their premises are “subject to periodic inspections undertaken for specific purposes,” Burger, 482 U.S. at 703, 107 S.Ct. at 2644 (quoting Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct. 2534, 2539, 69 L.Ed.2d 262 (1981)), and (2) carefully constrain official discretion respecting the time, place and scope of periodic inspections, id. Tart contends that the boarding of the Jeromi for the limited purpose of requesting production of the necessary state-issued documentation of the vessel cannot be upheld as a valid administrative inspection of a closely-regulated industry because section 2 places insufficient constraints on the exercise of official discretion. We conclude that section 2, although a tersely phrased authorization to conduct documentation checks, imports sufficient implicit limitations upon the exercise of the fisheries officer’s discretion in the field. Contrary to Tart’s contention, the governing statute need not in all circumstances prescribe exhaustive restrictions limiting the target, time and place of the inspection. For example, in Burger the Supreme Court held that the statute there involved placed the owner-defendant on adequate notice as to the types of businesses and properties subject to routine inspection. Id. at 711, 107 S.Ct. at 2648 (statute placed all operators engaged in vehiele-dismantling business on notice of potential exposure to unannounced inspections). The statute at issue in Burger did not limit the discretion of inspectors in the field concerning which vehicle-dismantling businesses would be subjected to inspection; indeed, the Supreme Court acknowledged that there was no evidence as to the reason the agents had chosen Burger’s premises for inspection from a general list of vehicle dismantiers. Id. at 694 n. 1, n. 2, 107 S.Ct. at 2639 n. 1, n. 2. Section 2 similarly placed Tart, and others engaged in commercial fish landings in Massachusetts, on adequate notice that routine documentation checks might occur at any time, particularly when fishing in Commonwealth coastal waters or landing raw fish at Commonwealth ports. The rationale underlying the administrative search exception to the warrant requirement recognizes that the significance of the governmental interest at stake may lessen the expectation of privacy to which operators engaged in certain closely-regulated industries are reasonably entitled. Given the minimally intrusive nature of the documentation inspection in the present case, we conclude that it was not essential that section 2 contain an explicit “checklist” of time and place limitations for conducting documentation inspections. In Burger, the constitutionality of the statutory scheme was challenged on the ground that the statute limited neither the frequency nor the number of inspections allowed within a fixed period of time. The Court noted that “[w]hile such limitations, or the absence thereof, are a factor in an analysis of the adequacy of a particular statute, they are not determinative of the result so long as the statute, as a whole, places adequate limits upon the discretion of the inspecting officers.” Id. at 711 n. 21, 107 S.Ct. at 2648 n. 21 (emphasis added). The lack of explicit constraints on the officers' discretion is not determinative. Considered in the context of the entire regulatory scheme applicable to the commercial fishing industry in the Commonwealth, section 2 cannot be viewed as enabling generalized exploratory inspections typically associated with intrusive administrative inspection schemes. Rather, we think section 2 constrains the exercise of official discretion to the minimum enforcement measures required to assure reasonable compliance with the permitting regulations of Chapter 130. Cf. id. at 694 n. 1, 107 S.Ct. at 2639 n. 1 (warrantless inspections of business records and automobile inventories). Documentation checks represent a reasonable alternative to the posting of fishing permits in public view. See United States v. Villamonte-Marquez, 462 U.S. 579, 589-90, 103 S.Ct. 2573, 2580, 77 L.Ed.2d 22 (1983). Thus, section 2 only authorizes state fisheries officers to request presentation of the required documentation. Section 2 does not empower the fisheries officer to proceed further without a warrant. The minimally intrusive nature of a proper verbal request to produce required documentation, and the importance of the governmental interests served by the Commonwealth’s permitting requirement, satisfy us that the documentation inspection in this case did not offend the fourth amendment. 2. Section 80 Preemption The third habeas claim maintained that section 80, which criminalizes the landing of raw fish in Massachusetts without a commercial fishing permit, is preempted by 46 U.S.C. § 122, which provides that “[n]o vessel belonging to any citizen of the United States, trading from one port within the United States to another port within the United States, or employed in the bank, whale, or other fisheries, shall be subject to tonnage tax or duty, if such vessel be [federally] licensed, registered or enrolled.” 46 U.S.C. § 122 (1987). Since Tart held a federal commercial fishing license, fished beyond Commonwealth territorial waters, and sold no cargo within the Commonwealth, he considers the section 80 permit fee a "tonnage tax or duty,” within the meaning of 46 U.S.C. § 122. See Transportation Co. v. Parkersburg, 107 U.S. 691, 696-698, 2 S.Ct. 732, 736-38, 27 L.Ed. 584 (1883) (tonnage tax or duty charge imposed for privilege of entering, trading, or remaining in port). We first identify the federal legislation implicated by the preemption claim. Although he argues on appeal that federal statutes other than section 122 preempt the Commonwealth's fishing permit scheme, including 16 U.S.C. §§ 1801-1882 (1991) (Magnuson Fishery Conservation and Management Act) and 16 U.S.C. § 3371-3378 (1984 & Supp.1991) (Lacey Act Amendments of 1981), Tart developed neither of these arguments in the state trial court. Federal habeas review of those particular preemption claims is therefore precluded. Neither did Tart expressly cite to the federal fishing licensing statute, 46 U.S.C. §§ 12101-12122, but since section 122 expressly protects a federally-licensed, vessel, we address the broader preemptive effect, if any, of both section 122 and sections 12101-12111. Federal preemption of a state statute typically obtains in any of three scenarios: (1) the federal statute expressly preempts all state regulation of the same subject matter, see Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977); (2) the scheme of federal regulation, although not expressly preemptive, is so pervasive as to generate the reasonable inference that Congress intended to leave no domain open to state regulatory supplementation, see Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev. Comm’n, 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983); or (3) the federal statute and a state statute are in direct conflict, either because it would be impossible fully to comply with both or because enforcement of the state statute would frustrate the congressional purpose underlying the federal statute. Id. Tart does not contend that either section 122 or sections 12101-12122 contain an express preemption provision. Neither could he argue that federal licensing statutes so pervasively regulate coastal fishing activities as to leave no room for collateral or supplemental regulation by the Commonwealth. Moreover, where federal legislation regulates in an area traditionally occupied by the States, such as the regulation of coastal fishing, a preemptive intent will be inferred only if it is the manifest purpose of Congress. Douglas v. Seacoast Products, Inc., 431 U.S. 265, 272, 97 S.Ct. 1740, 1745, 52 L.Ed.2d 304 (1977). Tart argues, however, that the section 80 prohibition against unlicensed landing of raw fish in the Commonwealth cannot be justified as an attempt to conserve Commonwealth fishery resources, at least not where the defendant took the fish outside Commonwealth waters. Of course, resource conservation is not the only legitimate purpose served by permissible commercial fishing regulation on the part of the States. The police powers of the State may supplement a federal regulatory scheme as reasonably required for the protection of the health and welfare of the State’s citizens. For example, in Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960), the Court upheld a state court’s refusal to enjoin enforcement of the criminal provisions of a municipal anti-pollution ordinance against several federally-licensed vessels docked at the Port of Detroit. One of the arguments presented by the vessel owners and operators was that federal li-censure and enrollment under the provisions of Title 46 gave “the vessels ... a dominant federal right to the use of the navigable waters of the United States, free from local impediment.” Id. at 447, 80 S.Ct. at 818. The Court discussed the permissibility of state regulation designed to protect public health and welfare: The mere possession of a federal license, however, does not immunize a ship from the operation of the normal incidents of local police power, not constituting a direct regulation of commerce. Thus, a federally licensed vessel is not, as such, exempt from local pilot-age laws, Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299 [13 L.Ed. 996], or local quarantine laws, Morgan’s Steamship Co. v. Louisiana Board of Health [6 S.Ct. 1114], 118 U.S. 455 [30 L.Ed. 237], or local safety inspections, Kelly v. Washington, 302 U.S. 1 [58 S.Ct. 87, 82 L.Ed. 3], or the local regulation of wharves and docks, Packet Co. v. Catlettsburg, 105 U.S. 559 [26 L.Ed. 1169]. Indeed this Court has gone so far as to hold that a state, in the exercise of its police power, may actually seize and pronounce the forfeiture of a vessel “licensed for the coasting trade, under the laws of the United States, while engaged in that trade.” Smith v. Maryland, 18 How. 71, 74 [15 L.Ed. 269], The present case obviously does not even approach such an extreme, for the Detroit ordinance ... does not exclude a licensed vessel from the Port of Detroit, nor does it destroy the right of free passage. Id. at 447-448, 80 S.Ct. at 818 (emphasis added). A federal commercial fishing license entitles the vessel to fish beyond State territorial waters, generally unimpeded by state regulation. The federal license allows the vessel to navigate within State territorial waters and to take fish from those waters, subject only to reasonable, nondiscriminatory State regulation designed to conserve fish reserves within State waters. See id. Since the federal licensing statute, 46 U.S.C. §§ 12101-12122, plainly does not occupy the field, but allows for a wide array of supplemental state regulation for furthering resource conservation and public health, Tart bears the heavy burden of demonstrating a direct conflict between the federal and state statutes. As it was not physically impossible for Tart to comply with both regulatory systems, Tart must show that enforcement of section 80 would frustrate the underlying policy of federal licensure. The legitimate purposes of Mass.Gen.L. ch. 130, § 80, are readily apparent. Section 80’s prohibition against taking fish from Commonwealth coastal waters without a state permit is a conservation law, see Barlow v. Wareham, 401 Mass. 408, 517 N.E.2d 146 (1988), applicable to Commonwealth residents and nonresidents alike. On the other hand, section 80’s prohibition against landing raw fish in Massachusetts without a permit from the Commonwealth is an integral element in a broader regulatory scheme governing all wholesale and retail handlings of raw fish within the Commonwealth, which requires the promulgation of rules by both the Division of Marine Fisheries and the Public Health Commission, and allocates permit fees to defray the costs of administering the Division of Marine Fisheries’ research, management and other activities. Transshipment of raw fish through Commonwealth ports presents an appropriate occasion for the exercise of the Commonwealth’s police power in furtherance of the public health of its citizens. Absent its regulation of raw seafood landings, the Commonwealth could achieve no reasonable assurance that raw fish landed in the Commonwealth would be fit for human consumption in Massachusetts. We conclude that section 80 constitutes “[ejvenhanded local regulation to effectuate a legitimate local public interest” in promoting public health by protecting Massachusetts consumers from exposure to seafood unfit for human consumption. Huron Portland Cement, 362 U.S. at 443, 80 S.Ct. at 816. Thus, section 80 is not preempted by the federal statutes relied on by Tart. 3. Mens Rea Instruction Tart claims that his due process rights were violated by the failure to instruct the jury that the Commonwealth was required to establish that Tart had a culpable state of mind and that a reasonable mistake of law as to the applicability of section 80 would preclude conviction. The Commonwealth contends that section 80 establishes a “public welfare” crime, consisting only of forbidden acts or omissions, and therefore is not invalidated by the Legislature’s plain intent to eschew a mens rea element. See Morissette v. Unit ed States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Absent clear evidence of a contrary legislative intent, a criminal statute generally is presumed to include a requirement that the state establish a culpable state of mind on the part of the defendant. See id. at 250-51, 72 S.Ct. at 243. It is a well-settled principle of constitutional law, however, that “[t]here is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.” Lambert v. California, 355 U.S. 225, 232, 78 S.Ct. 240, 245, 2 L.Ed.2d 228 (1957). The Supreme Court frequently has upheld legislative enactments proscribing so-called “public welfare” offenses. These enactments dispense with any requirement that the defendant have acted intentionally or knowingly, instead imposing penalties as a regulatory measure and placing the burden of compliance upon an otherwise nonculpable person who occupies a position that entails responsibility for preventing a public harm. See United States v. Dotterweich, 320 U.S. 277, 280-281, 64 S.Ct. 134, 136, 88 L.Ed. 48 (1943). Certain recognized factors are considered suggestive of a legislative intent to criminalize conduct as a public welfare offense: [W]here a ... criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch [the reputation], where the statutory crime is not one taken over from the common law, and where [legislative] purpose is supporting, the statute can be construed as one not requiring criminal intent. The elimination of this element is then not violative of the due process clause. Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus? A. no B. yes, state habeas corpus (criminal) C. yes, federal habeas corpus (criminal) D. yes, federal habeas corpus relating to deportation 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". FOREST GLEN CREAMERY CO. et al. v. COMMISSIONER OF INTERNAL REVENUE. No. 7575. Circuit Court of Appeals, Seventh Circuit. Nov. 14, 1941. Rehearing Denied Dec. 4, 1941. George J. Dreiske, o-f Chicago, 111., for petitioners. Samuel O. Clark, Jr., Asst. Atty. Gen., and J. P. Wenchel, Bureau of Internal Revenue, and Morton K. Rothschild, both of Washington, D. C., for respondent. Before SPARKS, and MAJOR, Circuit Judges, and LINDLEY, District Judge. LINDLEY, District Judge. This is a review of several decisions of the Board of Tax Appeals entered May 9, 1940, determining a deficiency of $18,262.-40 in the income tax liability of Forest Glen Creamery Company for the calendar year 1927 and holding five former stockholders of the company liable as transferees. Petitioners seek to reverse also an order entered March 30, 1940, dismissing the petition of Peter Wilson, a deceased former stockholder, for lack of jurisdiction. The causes were consolidated for hearing before the Board and come here by one petition for review. The Board found that the Creamery Company in 1927 sold its assets, realizing a taxable capital gain upon which it was liable to pay a tax. The petitioners contend that the transaction constituted a sale by the stockholders of their stock in the corporation. The facts were stipulated. On May 24, 1927, the company entered in an agreement with the National Milk Company wherein it agreed to sell and the latter to purchase all of the assets of the Creamery Company, subject to certain encumbrances, for $475,000, to be paid partly in cash and partly by judgment notes. The vendor agreed to deliver also its outstanding capital stock assigned to the purchaser. The deeds of conveyance, bills of sale and certificates of stock were to be deposited with the Chicago Title & Trust Company as escrow agent, and the consideration to be paid was likewise to be similarly deposited and then distributed to creditors and stockholders. A supplemental agreement was executed on July 14, 1927 between the Creamery Company and the purchaser wherein the original contract was modified in certain particulars not of importance here. On July 27, 1927 the vendor, the purchaser, the Northwestern Securities Company and one Frank Bobrytzke entered into an escrow agreement, under which the original contracts were ultimately carried into execution. The Creamery Company deposited with the escrow agent the deeds, bills of sale and other instruments of title necessary to transfer all of its properties to the purchaser and certificates of its capital stock endorsed in blank. The Northwestern Securities Company deposited $295,000, Bobrytzke, mortgages for $350,000 and $175,000, thus furnishing the consideration necessary to complete the purchase of the properties and the liquidation of the Creamery Company. Subsequently the escrow agent paid from the moneys thus received to preferred stockholders the amount necessary to retire their stock and delivered to the Forest Park State Bank, as trustee for the common stockholders, the balance of the consideration remaining after payment of certain debts. These funds the trustee subsequently distributed to the stockholders in accord with their holdings, each of the petitioner transferees in this case receiving a sum in excess of $28,000. Each agreement was approved by the directors and stockholders of the Creamery Company. No stockholder was a party to any agreement, but each deposited his stock with the escrow agent and received his distributive share of the proceeds of sale from the trustee. The Creamery Company made no report of the transaction in its income tax return for the year 1927. The Commissioner, holding that the transaction amounted to a sale of assets resulting in a capital gain, entered a deficiency assessment in the sum of $22,000. Upon appeal to this court the subsequent decision of the Board was reversed upon issues not involved in this review. Commissioner v. Forest Glen C. Co., 7 Cir., 98 F.2d 968. Upon remand the Board reduced the deficiency to $18,262.-40, sustained it in that amount and held the five petitioning stockholders of the Creamery Company liable as transferees for the full amount. The essential question is whether the transaction amounted to a sale of assets by the Creamery Company. The stockholders were parties to no contract; made no agreement to sell their stock. The consideration, though not paid directly to the company, was delivered at the direction of the company, as provided in the escrow agreement, to the escrow agent for distribution to the stockholders after payment of debts. In its essence the completed transaction was dual in character. The corporation sold all its assets for a specified consideration. This resulted in a capital gain. It deposited the consideration with a trustee who, after payment of debts, completed the second step in the transaction, namely, liquidation of the corporation and distribution to its stockholders. Thereafter the corporation had no assets and conducted no business. It had completed each of the two steps, first, the sale of assets; second, the distribution among its. stockholders, who surrendered their shares in accord with the agreement of the corporation in order that they might receive the amount to which they were entitled upon liquidation of' the company. Inasmuch as the Board was right in fixing the deficiency of the Creamery Company it necessarily follows that each transferee is liable. Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289. The fact that the consideration was delivered to a trustee who thereupon paid it to stock-' holders instead of directly to the corporation is of no importance. Compare Minnesota Tea Co. v. Helvering, 302 U.S. 609, 58 S.Ct. 393, 82 L.Ed. 474; United States v. Hendler, 303 U.S. 564, 58 S.Ct. 655, 82 L.Ed. 1018. Petitioners contend that under Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 the assessment and order were arbitrary and unreasonable to such an extent as to exonerate the petitioners. But we do not so read that opinion. There the taxpayer had transferred to a holding company in exchange for its stock certain securities which the holding company sold the next year for $194,000 from which it paid the taxpayer $99,000 for preferred stock. The Supreme Court merely held that the Court of Appeals, 2 Cir., 70 F.2d 619, had not erred when it reversed and remanded with directions to the Board to determine the proper allocation of the proceeds amongst the different classes of securities held by the taxpayer. No such matter is involved here. We have no dispute as to basis and amount of computation or method of allocation. Our only question is whether ■ there was a sale by the Creamery Company at a profit. That having been decided in the affirmative, the liability of the transferees follows. Petitioners question the correctness of the order dismissing the petition filed in the name of Peter Wilson, one of the former stockholders and transferees. This petition was dismissed on March 30, 1940. Petition for rehearing was filed on April 29, 1940 and denied on April 30. Under the statute Section 1142, 26 U.S.C.A. Int. Rev. Code, petitioners had a right to file a petition for review within three months from, at the latest, April 30, 1940. This petitioners failed to do, but filed one on August 7, 1940, after the time allowed by law had expired. We have,' therefore, no jurisdiction to review the decision of the Board in this respect. Smith v. Commissioner, 4 Cir., 67 F.2d 167. The decision 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:
sc_issuearea	H	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. TRANS WORLD AIRLINES, INC. v. FRANKLIN MINT CORP. et al. No. 82-1186. Argued November 30, 1983 Decided April 17, 1984 O’CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, White, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 261. John N. Romans argued the cause for Trans World Airlines, Inc. With him on the briefs was Robert S. Upton. Joshua I. Schwartz argued the cause for the United States as amicus curiae in support of Trans World Airlines, Inc. With him on the brief were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Geller, and Michael F. Hertz. John B. Foster argued the cause and filed a brief for Franklin Mint Corp. et al. Together with No. 82-1465, Franklin Mint Corp. et al. v. Trans World Airlines, Inc., also on certiorari to the same court. Alden D. Halford filed a brief for Boehringer Mannheim Diagnostics, Inc., as amicus curiae urging reversal. Briefs of amici curiae were filed for Marc Hammerschlag et al. by Marc S. Moller; for the Air Transport Association of America by James E. Landry and George S. Lapham, Jr.; and for the International Air Transport Association by Randal R. Craft, Jr., and Peter Hoenig. Justice O’Connor delivered the opinion of the Court. The question presented in this litigation is whether an air carrier’s declared liability limit of $9.07 per pound of cargo is inconsistent with the “Warsaw Convention” (Convention), an international air carriage treaty that the United States has ratified. As a threshold matter we must determine whether the 1978 repeal of legislation setting an “official” price of gold in the United States renders the Convention’s gold-based liability limit unenforceable in this country. We conclude that the 1978 legislation was not intended to affect the enforceability of the Convention in the United States, and that a $9.07-per-pound liability limit is not inconsistent with the Convention. I In 1974 the Civil Aeronautics Board (CAB) informed international air carriers doing business in the United States that the minimum acceptable carrier liability limit for lost cargo would thenceforth be $9.07 per pound. Trans World Airlines, Inc. (TWA), has complied with the CAB order since that time. On March 23, 1979, Franklin Mint Corp. (Franklin Mint) delivered four packages of numismatic materials with a total weight of 714 pounds to TWA for transportation from Philadelphia to London. Franklin Mint made no special declaration of value at the time of delivery. The packages were subsequently lost. Franklin Mint brought suit in United States District Court to recover damages in the amount of $250,000. The parties stipulated that TWA was responsible for the loss of the packages. The only dispute concerns the extent of TWA’s liability. The District Court ruled that under the Convention TWA’s liability was limited to $6,475.98, a figure derived from the weight of the packages, the liability limit set out in the Convention, and the last official price of gold in the United States. The Court of Appeals for the Second Circuit affirmed the judgment, but “rul[ed]” that 60 days from the issuance of the mandate the Convention’s liability limit would be unenforceable in the United States. 690 F. 2d 303 (1982). In a petition for certiorari to this Court TWA challenged the Court of Appeals’ declaration that the Convention’s liability limit is prospectively unenforceable. In a cross-petition, Franklin Mint contended that the Court of Appeals’ actual holding should have been retrospective as well. We granted both petitions, 462 U. S. 1118 (1983). We now conclude that the Convention’s cargo liability limit remains enforceable in United States courts and that the CAB-sanctioned $9.07-per-pound liability limit is not inconsistent with the Convention. Accordingly, we affirm the judgment of the Court of Appeals but reject its declaration that the Convention is prospectively unenforceable. II The Convention was drafted at international conferences in Paris in 1925, and in Warsaw in 1929. The United States became a signatory in 1934. More than 120 nations now adhere to it. The Convention creates internationally uniform rules governing the air carriage of passengers, baggage, and cargo. Under Article 18 carriers are presumptively liable for the loss of cargo. Article 22 sets a limit on carrier liability: “(2) In the transportation of checked baggage and of goods, the liability of the carrier shall be limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. . . . “(4) The sums mentioned above shall be deemed to refer to the French franc consisting of 65% milligrams of gold at the standard of fineness of nine hundred thousandths. These sums may be converted into any national currency in round figures. ” Reprinted (in English translation) in note following 49 U. S. C. § 1502. In the United States the task of converting the Convention’s liability limit into “any national currency” falls within rulemaking authority which was, for many years including those at issue here, delegated to the CAB under the Federal Aviation Act of 1958 (FAA), 49 U. S. C. § 1301 et seq. International air carriers are required to file tariffs with the CAB specifying “in terms of lawful money of the United States” the rates and conditions of their services, including the cargo liability limit that they claim. The Act forbids any carrier to charge a “greater or less or different compensation for air transportation, or for any service in connection therewith, than the rates, fares, and charges specified in then currently effective tariffs . . . ,” The CAB, for its part, is empowered to reject any tariff that is inconsistent with the FAA or CAB regulations. 49 U. S. C. § 1373(a). CAB powers are to be exercised “consistently with any obligation assumed by the United States in any treaty, convention, or agreement that may be in force between the United States and any foreign country or foreign countries . . . .” 49 U. S. C. § 1502. During the first 44 years of the United States’ adherence to the Convention there existed an “official” price of gold in the United States, and the CAB’s task of supervising carrier compliance with the Convention’s liability limit was correspondingly simple. The United States Gold Standard Act of 1900 set the value of the dollar at $20.67 per troy ounce of gold. On January 31, 1934, nine months before the United States ratified the Convention, President Roosevelt increased the official domestic price of gold to $35 per ounce. In 1945 the United States accepted membership in the International Monetary Fund (IMF) and so undertook to maintain a “par value” for the dollar and to buy and sell gold at the official price in exchange for balances of dollars officially held by other IMF nations. For almost 40 years the $35-per-ounce price of gold was used to derive from the Convention’s Article 22(2) a cargo liability limit of $7.50 per pound. See, e. g., 14 CFR §221.176 (1972). When the central banks of most Western nations instituted a “two-tier” gold standard in 1968 the gold-based international monetary system began to collapse. Thereafter, official gold transactions were conducted at the official price, and private transactions at the floating, free market price. App. 21. In August 1971 the United States suspended convertibility of foreign official holdings of dollars into gold. In December 1971 and then again in February 1973 the official exchange rate of the dollar against gold was increased. These changes were approved by Congress in the Par Value Modification Act, passed in early 1972 (increasing the official price to $38 per ounce) and in its 1973 reenactment (setting a $42.22-per-ounce price). Each time, the CAB followed suit by directing carriers to increase the dollar-based liability limits in their tariffs accordingly, first to $8.16 per pound, then to $9.07 per pound. In 1975 the member nations of the IMF formulated a plan, known as the Jamaica Accords, to eliminate gold as the basis of the international monetary system. Effective April 1, 1978, the “Special Drawing Right” (SDR) was to become the sole reserve asset that IMF nations would use in their mutual dealings. The SDR was defined as the average value of a defined basket of IMF member currencies. In 1976 Congress passed legislation to implement the new IMF agreement, repealing the Par Value Modification Act effective April 1, 1978. As these developments unfolded, the Convention signatories met in Montreal in September 1975. In No. 4 of the “Montreal Protocols,” the delegates proposed to substitute 17 SDR’s per kilogram for the 250 French gold francs per kilogram in Article 22 of the Convention. Although the United States supported this change, and signed Protocol No. 4, the Senate has not yet consented to its ratification. The erosion and final demise of the gold standard, coupled with the United States’ failure to ratify Montreal Protocol No. 4, left the CAB with the difficult task of supervising carrier compliance with the Convention’s liability limits without up-to-date guidance from Congress. Although the market price of gold began to diverge from the official price in 1969, the CAB continued to track the official price in Orders converting the Convention’s liability limit into dollars. Under CAB Order 74-1-16, promulgated in 1974, “the minimum acceptable figur[e] in United States dollars for liability limits applicable to ‘international transportation’ and ‘international carriage’ ... [is $] 9.07 [per pound of cargo].” Since 1978 the CAB has actively reviewed this $9.07-per-pound liability limit. As of 1979, however, the CAB continued to sanction the use of the last official price of gold— $42.22 per ounce — as a conversion factor. A CAB Order published on August 14, 1978, restated the CAB’s position. The $9.07-per-pound limit remained codified in CAB regulations, see 14 CFR §221.176 (1979), and CAB Order 74-1-16 was still in force. TWA, like other international carriers, remained subject to Order 74-1-16. HH H-H » — I The most important issue raised by the parties is whether the 1978 repeal of the Par Value Modification Act rendered the Convention’s cargo liability limit unenforceable in the United States. The Court of Appeals so declared, reasoning that (i) enforcement of the Convention requires a factor for converting the liability limit into dollars and (ii) there is no United States legislation specifying a factor to be used by United States courts. We do not accept this analysis. There is, first, a firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous congressional action. “A treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed.” Cook v. United States, 288 U. S. 102, 120 (1933). See also Washington v. Washington Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 690 (1979); Menominee Tribe of Indians v. United States, 391 U. S. 404, 412-413 (1968); Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U. S. 138, 160 (1934). Legislative silence is not sufficient to abrogate a treaty. Weinberger v. Rossi, 456 U. S. 25, 32 (1982). Neither the legislative histories of the Par Value Modification Acts, the history of the repealing Act, nor the repealing Act itself, make any reference to the Convention. The repeal was unrelated to the Convention; it was intended to give formal effect to a new international monetary system that had in fact evolved almost a decade earlier. Second, the Convention is a self-executing treaty. Though the Convention permits individual signatories to convert liability limits into national currencies by legislation or otherwise, no domestic legislation is required to give the Convention the force of law in the United States. The repeal of a purely domestic piece of legislation should accordingly not be read as an implicit abrogation of any part of it. See generally Bacardi Corp. of America v. Domenech, 311 U. S. 150, 161-163 (1940). Third, Article 39 of the Convention requires a signatory that wishes to withdraw from the Convention to provide other signatories with six months’ notice, formally communicated through the Government of Poland. The repeal of the Par Value Modification Act had a sufficient lead time, but Congress and the Executive Branch took no steps to notify other signatories that the United States planned to abrogate the Convention. To the contrary, the Executive Branch continues to maintain that the Convention’s liability limit remains enforceable in the United States. Brief for United States as Amicus Curiae. In these circumstances we are unwilling to impute to the political branches an intent to abrogate a treaty without following appropriate procedures set out in the Convention itself. See The Federalist No. 64, pp. 436-487 (J. Cooke ed. 1961) (J. Jay). Franklin Mint suggests that a treaty ceases to be binding when there has been a substantial change in conditions since its promulgation. A treaty is in the nature of a contract between nations. The doctrine of rebus sic stantibus does recognize that a nation that is party to a treaty might conceivably invoke changed circumstances as an excuse for terminating its obligations under the treaty. But when the parties to a treaty continue to assert its vitality a private person who finds the continued existence of the treaty inconvenient may not invoke the doctrine on their behalf. For these reasons the erosion of the international gold standard and the 1978 repeal of the Par Value Modification Act cannot be construed as terminating or repudiating the United States’ duty to abide by the Convention’s cargo liability limit. We conclude that the limit remains enforceable in United States courts. > HH The Court of Appeals correctly recognized that the Convention’s liability limit must be converted into dollars. This requirement derives not from the Convention itself — the Convention merely permits such a conversion — but from the tariff requirements of § 403(a) of the FAA. 49 U. S. C. § 1373(a). In 1979, when Franklin Mint’s cargo was lost, TWA’s tariffs set the carrier’s cargo liability limit at $9.07 per pound. This tariff had been filed with and accepted by the CAB pursuant to § 403(a), and was squarely consistent with CAB Order 74-1-16. The $9.07-per-pound limit thus represented an Executive Branch determination, made pursuant to properly delegated authority, of the appropriate rate for converting the Convention’s liability limits into United States dollars. We are bound to uphold that determination unless we find it to be contrary to law established by domestic legislation or by the Convention itself. It is clear, first, that the CAB’s choice of a cargo liability limit of $9.07 per pound does not contravene any domestic legislation. When an official price of gold was set by statute the CAB did, of course, use that price to translate the Convention’s gold-based liability limit into dollars. But when Congress repealed the Par Value Modification Act it did not suggest that the CAB should thereafter use a different conversion factor. Indeed, there is no hint that either of the political branches expected or intended that Act to affect the dollar equivalent of the Convention’s liability limit. "Whether the CAB’s choice of a $9.07-per-pound limit is compatible with the Convention itself is more debatable. The Convention included liability limits, and expressed them in terms of gold, to effect several different and to some extent contradictory purposes. Our task of construing those purposes is, however, made considerably easier by the 50 years of consistent international and domestic practices under the Convention. For the reasons stated below we conclude that tying the Convention’s liability limit to today’s gold market would fail to effect any purpose of the Convention’s framers, and would be inconsistent with well-established international practice, acquiesced in by the Convention’s signatories over the past 50 years. A fixed $9.07-per~pound liability limit therefore represents a choice by the CAB sufficiently consistent with the Convention’s purposes. The Convention’s first and most obvious purpose was to set some limit on a carrier’s liability for lost cargo. Any conversion factor will have this effect; in this regard a $9.07-per-pound liability limit is as reasonable as one based on SDR’s or the free market price of gold. The Convention’s second objective was to set a stable, predictable, and internationally uniform limit that would encourage the growth of a fledgling industry. To this end the Convention’s framers chose an international, not a parochial, standard, free from the control of any one country. The CAB’s choice of a $9.07-per-pound liability limit is certainly a stable and predictable one on which carriers can rely. We recognize however that, in the long term, effectuation of the Convention’s objective of international uniformity might require periodic adjustment by the CAB of the dollar-based limit to account both for the dollar’s changing value relative to other Western currencies and, if necessary, for changes in the conversion rates adopted by other Convention signatories. Since 1978, however, no substantial changes of either type have occurred. Despite the demise of the gold standard, the $9.07-per-pound liability limit retained since 1978 has represented a reasonably stable figure when converted into other Western currencies. This is easily established by reference to the SDR, which is the new, nonparochial, internationally recognized standard of conversion. On March 31, 1978, for example, one SDR was worth $1.23667; on March 23, 1979, $1.28626. At all times since 1978 a carrier that chose to set its liability limit at 17 SDR’s per kilogram as suggested by Montreal Protocol No. 4 would have arrived at a liability limit in dollars close to $9 per pound. The CAB’s $9.07-per-pound liability limit also appears to have been a reasonable interim choice for keeping the Convention’s liability limit as enforced in the United States in line with limits enforced by other signatories. As of December 31,1975, 15 nations had signed Montreal Protocol No. 4, suggesting their intent to set a liability limit of 17 SDR’s per kilogram; other nations have chosen to continue using the last official price of gold for converting the Convention’s cargo liability limit into national currencies. Insofar as has been possible in the unsettled circumstances since 1975, the CAB’s choice of a $9.07-per-pound limit has thus furthered the Convention’s intent to set an internationally uniform liability limit. We recognize that this inquiry into the dollar’s value relative to other currencies would have been unnecessary if the CAB had chosen to adopt the market price of gold for converting the Convention’s liability limits into dollars. Since gold is freely traded on an international market its price always provides a unique and internationally uniform conversion rate. But reliance on the gold market would entirely fail to provide a stable unit of conversion on which carriers could rely. To pick one extreme example, between January and April 1980 gold ranged from about $490 to $850 per ounce. App. 24. Far from providing predictability and stability, tying the Convention to the gold market would force every carrier and every air transport user to become a speculator in gold, exposed to the sudden and unpredictable swings in the price of that commodity. The CAB has correctly recognized that this is not at all what the Convention’s framers had in mind. The 1978 decision by many of the Convention’s signatories to exit from the gold market cannot sensibly be construed as a decision to compel every air carrier and air transport user to enter it. A third purpose of the Convention’s gold-based limit may have been to link the Convention to a constant value, that would keep step with the average value of cargo carried and so remain equitable for carriers and transport users alike. We recognize that in an inflationary economy a fixed, dollar-based liability limit may fail in the long term to achieve that purpose. Nonetheless, for the reasons that follow, we cannot fault the CAB’s decision to adhere, in the six years since 1978, to a constant $9.07-per-pound liability limit. The Convention’s framers viewed the treaty as one “drawn for a few years,” not for “one or two centuries.” That it has in fact been adhered to for over half a century is a tribute not only to the framers’ skills but to the signatories’ manifest willingness to accept a flexible implementation of the Convention’s terms. The indisputable fact is that between 1934 and 1978 the signatories, by common if unwritten consent, allowed the value of the liability limit as measured by the free market price of both gold and other commodities to decline substantially, even while the official price of gold was formally maintained. We may not ignore the actual, reasonably harmonious practice adopted by the United States and other signatories in the first 40 years of the Convention’s existence. See Factor v. Laubenheimer, 290 U. S. 276, 294-295 (1933); Day v. Trans World Airlines, Inc., 528 F. 2d 31, 35-36 (CA2 1975), cert. denied, 429 U. S. 890 (1976); Restatement (Second) of Foreign Relations Law of the United States § 147(1)(f) (1965); 2 C. Hyde, International Law 72 (1922). In determining whether the Executive Branch’s domestic implementation of the Convention is consistent with the Convention’s terms, our task is to construe a “contract” among nations. The conduct of the contracting parties in implementing that contract in the first 50 years of its operation cannot be ignored. As of March 31, 1978, $9.07 per pound of cargo therefore represented a “correct” conversion of the Convention’s liability limit into dollars. Though the purchasing power of the dollar has declined somewhat since then, the $9.07-per-pound liability limit, viewed in light of international practice, cannot be declared inconsistent with the purposes of the Convention and the shared understanding of its signatories. Moreover, tying the Convention’s liability limit to the free market price of gold would no longer serve to maintain a constant value of carriers' liability. Since 1978 gold has been only “a volatile commodity, not related to a price index, or to the rate of inflation, or indeed to any meaningful economic measure . . . .” A liability limit tied to the gold market might be convenient for a dispatcher of gold bullion, but such a limit would simply force other air transport users and carriers to become unwilling speculators in the gold market. Whatever other purposes they may have had, the Convention’s framers and signatories did not intend to adopt or agree to a liability limit that is fluid, uncertain, and altogether inconvenient. The Convention was intended to reduce, not to increase, the economic uncertainties of air transportation. V The political branches, which hold the authority to repudiate the Warsaw Convention, have given no indication that they wish to do so. Accordingly, the Convention’s cargo liability limit remains enforceable in the United States. Article 22(4) of the Convention permits conversion of the liability limit into “any national currency.” In the United States the authority to make that conversion has been delegated by Congress to the Executive Branch. The courts are bound to respect that arrangement unless the properly delegated authority is exercised in a manner inconsistent with domestic or international law. We conclude that the CAB’s decision to continue using a $42.22 per ounce of gold conversion rate after the repeal of the Par Value Modification Act was consistent with domestic law and with the Convention itself, construed in light of its purposes, the understanding of its signatories, and its international implementation since 1929. We reject the Court of Appeals’ declaration that the Convention is prospectively unenforceable; the judgment of the Court of Appeals affirming the judgment of the District Court is Affirmed. Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T. S. No. 876 (1934), reprinted in note following 49 U. S. C. § 1502. Had such a declaration been made, and an additional fee paid, Franklin Mint would have been able to recover in an amount not exceeding the declared value. See Convention, Art. 22(2), note following 49 U. S. C. § 1502. With respect to foreign air transportation FAA powers are now exercised by the Department of Transportation in consultation with the Department of State. 49 U. S. C. §§ 1551(b)(1)(B) and (b)(2). For simplicity this opinion will continue to refer only to the CAB. See 49 U. S. C. § 1373(a); cf. 14 CFR §§ 221.38(a)(2), 221.38(j) (1983). 49 U. S. C. § 1373(b)(1). CAB regulations require each carrier to notify air transport users of liability limits. “The notice shall be clearly and conspicuously included on or attached to all of [the carrier’s] rate sheets and airwaybills.” 14 CFR § 205.8 (1983). See Ch. 41, § 1, 31 Stat. 45 (exchange rate stated in terms of grains of gold per dollar). Presidential Proclamation No. 2072, 48 Stat. 1730, pursuant to the Gold Reserve Act of 1934, 48 Stat. 337. The domestic enabling legislation was the Bretton Woods Agreements Act, 59 Stat. 512. See Articles of Agreement of the International Monetary Fund, 60 Stat. 1401, 2 U. N. T. S. 39, T. I. A. S. No. 1501 (1945). Par Value Modification Act, Pub. L. 92-268, §2, 86 Stat. 116. Par Value Modification Act, Pub. L. 93-110, § 1, 87 Stat. 352. CAB Order 72-6-7, 37 Fed. Reg. 11384 (1973), implemented (for checked passenger baggage) in 14 CFR §221.176 (1973). CAB Order 74-1-16, App. 54, 39 Fed. Reg. 1526 (1974), implemented (for checked passenger baggage) in 14 CFR §221.176 (1975). Second Amendment of Articles of Agreement of the International Monetary Fund, Apr. 30, 1976, [1976-1977] 29 U. S. T. 2203, T. I. A. S. No. 8937. The SDR was originally created by the IMF nations in 1969. It was then valued at one thirty-fifth of an ounce of gold, or one 1969 dollar. See First Amendment of the Articles of Agreement of the International Monetary Fund, May 31, 1968, [1969] 20 U. S. T. 2775, T. I. A. S. No. 6748. However there is no longer any fixed correspondence between the SDR and gold; the SDR is defined as a specified basket of Western currencies. Bretton Woods Agreements Act of 1976, Pub. L. 94-564, § 6, 90 Stat. 2660. Montreal Protocol No. 4, done Sept. 25, 1975, reprinted in A. Lowen-feld, Aviation Law, Documents Supplement 991, 996 (2d ed. 1981). Convention signatories who do not belong to the IMF determine for themselves how the liability limit will be converted into their national currencies. Ibid. See Lowenfeld, supra, §6.51, at 7-171. On November 17, 1981, the Senate Committee on Foreign Relations reported in favor of consenting to ratification. But on March 8,1983, by a vote of 50 to 42 in favor of ratification, the Senate failed to reach the two-thirds majority required for consent. The matter remains on the Senate calendar. See S. Exec. Rep. No. 97-45 (1981); 129 Cong. Rec. S2270, S2279 (daily ed. Mar. 8, 1983); S. Exec. Rep. No. 98-1 (1983). App. 56-57; 39 Fed. Reg. 1526 (1974). TWA is included in the Order’s appendix that lists the carriers at which the Order is directed. Id., at 1527. Three internal agency memoranda have addressed the problem. J. Golden, Director, Bureau of Compliance and Consumer Protection, CAB, Memorandum (May 20, 1981), App. 33 (urging retention of the $42.22 conversion rate until the CAB and the Departments of Transportation and State have agreed on a new rate); P. Kennedy, Chief, Policy Development Division, Bureau of Consumer Protection, CAB, Memorandum (Mar. 18, 1980), id., at 42 (urging adoption of the free market price of gold as the conversion factor); J. Gaynes, Attorney, Legal Division, Bureau of International Aviation, CAB, Memorandum (Apr. 18,1980), id., at 60 (opposing the Kennedy memorandum recommendation). CAB Order 78-8-10, 43 Fed. Reg. 35971, 35972 (1978) (liability limit of $20 per kilogram). Note following 49 U. S. C. §1502. The United States has, in fact, followed this procedure once before. On November 15, 1965, the United States delivered a formal notice of denunciation of the Convention to the Polish Peoples Republic. See Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 546-552 (1967). The notice was later withdrawn. See Restatement (Second) of Foreign Relations Law of the United States § 153, and Comment c (1965). However, Article 39(2) of the Convention expressly permits a Convention signatory to withdraw by giving timely notice. Plainly, a party to a treaty of voluntary adhesion can have no need for the doctrine of rebus sic stantibus, except insofar as it might wish to avoid the notice requirement. In this connection the Court of Appeals stated: “[In repealing the Par Value Modification Act] Congress thus abandoned the unit of conversion specified by the Convention and did not substitute a new one. Substitution of a new term is a political question, unfit for judicial resolution. We hold, therefore, that the Convention’s limits on liability for loss of cargo are unenforceable in United States Courts.” 690 F. 2d 303, 311 (CA2 1982) (footnote omitted). In our view Congress has not abandoned any “unit of conversion specified by the Convention” — the Convention specifies liability limits in terms of gold francs and provides no unit of conversion whatsoever. To the contrary, the Convention invites signatories to make the conversion into national currencies for themselves. In the United States the CAB has been delegated the power to make the conversion, and has exercised the power most recently in Order 74-1-16. We are not called upon to “[s]ubstitut[e] a new term,” but merely to determine whether the CAB’s Order is inconsistent with the Convention. That determination does not engage the “political question” doctrine. The dissent apparently has no difficulty accepting that while Congress selected the conversion rate between gold and the dollar “[o]ur practice was consistent with the Convention,” see post, at 277, n. 6, even though the conversion rate selected bore no relation whatsoever to the dollar price of gold on the free market, see nn. 35, 37, infra. The dissent does not explain why the CAB, whose powers are exercised pursuant to express congressional delegation, was disqualified from setting a similar conversion rate one year after Congress stopped doing so 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_respond1_1_3	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "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. CARPA, INC., et al., Plaintiffs-Appellees, Cross-Appellants. v. WARD FOODS, INC., et al., Defendants-Appellants, Cross-Appellees. No. 77-1245. United States Court of Appeals, Fifth Circuit. Feb. 17, 1978. Charles L. Stephens, Fort Worth, Tex., George H. Kolb, Joe B. Harrison, Dallas, Tex., for Ward Foods et al. Ralph G. Langley, William T. Armstrong, III, San Antonio, Tex., for Carpa, Inc., et al. Before THORNBERRY, GOLDBERG and CLARK, Circuit Judges. GOLDBERG, Circuit Judge: After seven years of litigation in this private antitrust suit the original dispute between the parties has become a mere footnote, and the adversaries and their attorneys now litigate over costs, attorneys’ fees, interest on the judgment, and even interest on attorneys’ fees. In Biblical times, such prolonged efforts in the fields were followed by a cessation of tillage and a year of rest. Litigants here seem to prefer the injunction of a different period, Lay on, Macduff And damn’d be ’him that first cries, “Hold, enough!” Plaintiffs Carpa, Inc. (owned by plaintiff Payne) and Boone owned and operated Zui-der Zee Restaurant franchises. They brought suit under the antitrust laws against defendant franchisor corporation Zuider Zee Oyster Bar, Inc. and its related corporations, against defendant Martin, who prior to 1968 was the chief stockholder of those corporations, and against defendant Ward Foods, (“Ward”) which purchased Martin’s shares in those corporations in 1968. Defendant Ward counterclaimed against plaintiff Boone for unpaid items purchased from Ward and its affiliates. The trial court entered judgment in the plaintiffs’ favor on the antitrust action. Boone’s share of the treble-damage award was $228,350.90, less $140,754.22 awarded to Ward on its counterclaim. In addition to the treble damage award, $202,380 was assessed against the defendants for plaintiffs’ attorneys’ fees. $76,904.40 of this attorneys’ fee award was allocable to plaintiff Boone. The authorizing statute, 15 U.S.C. § 15, provides for attorneys’ fees to successful antitrust plaintiffs. Here, because the plaintiffs had assigned their rights to attorneys’ fees to their counsel, the court awarded this sum directly to the plaintiffs’ attorneys. On an earlier appeal this court disallowed one item of the damage award amounting to $45,000 when trebled and affirmed the trial court’s judgment “in all [other] things.” Carpa, Inc. v. Ward Foods, Inc., 536 F.2d 39 (5th Cir. 1976) (hereinafter “Carpa I”). The case was remanded for entry of a final judgment. On remand, the district court (1) refused to offset against plaintiffs’ award for attorneys’ fees a state court judgment held by defendant Martin against plaintiff Boone, (2) allowed plaintiffs to recover six percent interest on attorneys’ fees, and (3) allowed plaintiffs to recover all their requested costs of court. Defendants now appeal from these portions of the judgment. The district court in its order also (4) refused to allow plaintiffs nine percent post-judgment interest from the effective date of a Texas enactment increasing the state statutory interest rate from six percent to nine percent. Plaintiffs cross-appeal from this portion of the judgment. We hold (1) that the district court correctly concluded that defendants were not entitled to offset their state court judgment against the attorneys’ fee award, (2) that plaintiffs’ counsel were not entitled to recover interest on the attorneys’ fee award, (3) that the district court abused its discretion in taxing as costs sums spent for reproducing depositions without first making the necessary factual inquiries, but did not abuse its discretion in taxing as costs the plaintiffs’ share of the special master’s fee, and (4) that the district court’s order denying a nine percent rate of interest on the plaintiffs’ judgment should be reconsidered on remand in light of the Texas Supreme Court’s resolution of the issue in two cases presently pending before it. I. The first issue raised on appeal is whether the trial court erred in overruling defendants’ motion to set off against plaintiff Boone’s attorneys’ fee award a state court judgment held by defendant Martin. Prior to the original judgment of the district court, Boone assigned his entitlement to recover attorneys’ fees to his counsel. After concluding that this assignment was valid, the district court awarded $76,904.40 in attorneys’ fees directly to Boone’s attorney. This assignment was challenged on appeal in Carpa I. We held that while the right to attorneys’ fees is accorded the injured party and not his counsel, an antitrust plaintiff may assign counsel his right to those fees. 536 F.2d at 52. Defendant Martin now contends that even though the assignment is valid, Martin has a right to setoff against his obligation to pay attorneys’ fees his state court judgment against Boone. We disagree and hold that the decision of this Court in Carpa I upholding the assignment of attorneys’ fees encompassed this issue by necessary implication and, as the láw of the case, precludes consideration by the district court or by us of defendant Ward’s setoff motion. We therefore affirm the district court’s denial of defendants’ motion. Under well-settled principles of law, a decision of this court at an earlier stage of the same case represents the law of the case. See Lehrman v. Gulf Oil Corp., 500 F.2d 659 (5th Cir. 1974), cert. denied, 420 U.S. 929, 95 S.Ct. 1128, 43 L.Ed.2d 400 (1975); Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16 (5th Cir.), cert. denied, 419 U.S. 987, 95 S.Ct. 246, 42 L.Ed.2d 260 (1974); Hodgson v. Brookhaven General Hospital, 470 F.2d 729 (5th Cir. 1972); Prudential Insurance Co. v. Morrow, 368 F.2d 813 (5th Cir. 1966) 1B J Moore’s Federal Practice ¶0.404 et seq (2d ed. 1974). As such, the earlier decision generally precludes consideration of any legal question that has already been decided. In White v. Murtha, 377 F.2d 428 (5th Cir. 1967), we noted that [t]he “law of the case” rule is based on the salutary and sound public policy that litigation should come to an end. It is predicated on the premise that . it would be impossible for an appellate court to perform its duties satisfactorily and efficiently and expeditiously if a question, once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal thereof. Id. at 431. The reach of the law of the case doctrine is not limitless. The doctrine is not an inexorable command that rigidly binds a court to its former decisions but rather is an expression of good sense and wise judicial practice. Terrell v. Household Goods Carriers’ Bureau, supra, 494 F.2d at 19. Thus an intervening decision by the Supreme Court or the en banc Court of Appeals on a relevant issue may warrant a re-examination of the earlier decision. Generally, however, the doctrine is waived “only for the most cogent of reasons and to avoid manifest injustice.” Id. at 19-20. The doctrine is further limited insofar as it applies only to issues that were decided in the former proceeding and does not pertain questions that might have been decided but were not. Nevertheless “the doctrine does mean that the duty of a lower court to follow what has been decided at an earlier stage of the case comprehends things decided by necessary implication as well as those decided explicitly.” Id. at 19 (emphasis supplied). In applying these principles to the case at bar, we must examine the factual background underlying this court’s decision on the assignment issue in Carpa I. At the time this court adjudicated that issue, the federal trial court and the state court had already rendered their decisions on damages. Boone’s net recovery from defendants Martin and Ward in the federal action (the treble damage award not including attorneys’ fees or other costs, less Ward’s award on the federal counterclaim) was less than the amount of Martin’s state court judgment. Thus unless Martin could either garnish the fee award to Boone’s attorney or offset his own liability against the attorneys’ fee award, he would be unable to recover all of his state court judgment against Boone from his own liability to Boone. Apparently recognizing that a set off against the attorneys’ fee award would be much more difficult to obtain if the assignment were upheld, see Brief for Ap-pellees-Cross Appellants Ward-Martin at 64-65, Carpa I, supra, the defendants argued in Carpa I that the assignment was invalid. We rejected this argument, reasoning that the policies underlying the antitrust laws would be best served by validating assignments which assured counsel that they would receive their fees: While noting that the fee recovery was plaintiffs’ personal right, the judgment below enforced an agreement, the existence of which was not disputed, assigning any awarded fees directly to counsel. Defendants vigorously contest this, for obvious reasons. After applying Boone’s treble damage recovery to the accounts and other judgments owed defendants, Boone will still be in the red. Ward would much prefer to flesh out its recovery from the fund to which the attorneys must look for their fees. We know of no statute or public policy denying an antitrust plaintiff the privilege enjoyed by plaintiffs in other cases, that of making an assignment to his attorneys in order to secure their services in the prosecution of his case. To deny counsel the fees awarded, and to do so at the instance of an antitrust defendant, would, we think, be inconsistent with the purpose of the statute in allowing, if not encouraging, private enforcement of the antitrust laws." Carpa I, supra, 536 F.2d at 52 (emphasis supplied). When making this statement, we were aware that Martin contemplated offsetting his liability to pay attorneys’ fees against his state court judgment. Given this context, it is clear from the above quoted language that our holding in Carpa I validating the assignment was intended to ensure that Boone’s counsel would not be denied the awarded fees because of defendant'.Martin’s potential claim to those funds. One necessary implication of our holding in Carpa I thus must be to preclude a setoff in favor of Martin which would reduce or eliminate the payment of fees to Boone’s counsel. Having already upheld the assignment which was designed to preclude the possibility of a setoff against the attorneys’ fee award, and having expressly done so because the policies of the antitrust laws favor arrangements ensuring that plaintiffs’ counsel receive their fee, we will not now allow a setoff which would deny plaintiffs’ counsel a portion of the fee award. Since this is the law of the case, and since we find no indication that “manifest injustice” will result from applying that law here, Terrell v. Household Goods Carriers’ Bureau, supra, 494 F.2d at 19, we hold that the district court properly denied the defendants’ setoff motion. II. The second issue raised by this appeal is whether the trial court properly provided for post-judgment interest on the plaintiffs’ attorneys’ fee award. The initial judgment of the trial court appealed from in Carpa I provided that defendants pay plaintiffs’ counsel the sum of $202,380.00 for attorneys’ fees. The reasonableness of this award was not challenged in the prior appeal, Carpa I, supra, 536 F.2d at 56. On remand the district court modified the attorneys’ fee award to include interest at six percent per year, computed from September 5, 1974, the date of the original judgment. We hold that the plaintiffs’ attorneys are not entitled to interest on their fee award. The statutory award of attorneys’ fees by the district court was made pursuant to 15 U.S.C. § 15, which provides in part that “Any person who shall be injured in his business or property by reason of anything forbidden in the anti-trust laws . . shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” (Emphasis supplied). The language of the statute clearly indicates that attorneys’ fees are to be treated as part of the costs in an antitrust suit. The question thus becomes whether the district court may award interest on attorneys’ fees when the fees are treated as costs. We note at the outset that this question must be determined by federal law. Although the rate of interest is to be determined by state law, 28 U.S.C. § 1961, where as here the claim for relief is federally created, the allowance of interest is to be decided by federal law. See Perkins v. Standard Oil Co., 487 F.2d 672 (9th Cir. 1973) ; Chris-Craft Industries, Inc. v. Piper Aircraft Corp., 384 F.Supp. 507 (S.D.N.Y. 1974) , reversed in part on other grounds, 516 F.2d 172 (2nd Cir. 1975). Under federal law, the award of attorneys’ fees has been the exception not the rule, and a litigant generally assumes the burden of paying for his own litigation costs in the absence of a rule or statute to the contrary. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). “Thus, counsel fees ordinarily are not taxable as costs.” 10 Wright and Miller, Federal Practice and Procedure § 2675 at 179-80. The antitrust laws do provide that a successful plaintiff may recover “the cost of suit, including a reasonable attorney’s fee.” 15 U.S.C. § 15. This statutory authority for recovery of attorneys’ fees does not, however, mention the award of interest. The only authority we have discovered for awarding interest on attorneys’ fees is the Ninth Circuit case of Perkins v. Standard Oil, 487 F.2d 672 (9th Cir. 1973). The precise issue in that private antitrust case was the date at which interest on attorneys’ fees began to accrue, but in deciding that issue the court presumed that a successful plaintiff could receive interest on his attorneys’ fee award and in fact upheld an award of interest on attorneys’ fees. The court, however, based its result on its view that “there exists no real distinction between judgments for attorneys’ fees and judgments for other items of damages." 487 F.2d at 675 (emphasis supplied), and did not consider the statutory language classifying attorneys’ fees as costs or analyze the question of whether interest may be awarded on attorneys’ fees. We believe that the Ninth Circuit’s treatment of attorneys’ fees as an item of damages was based on an erroneous view of the law. The statute authorizing the recovery of attorneys’ fees in antitrust cases provides that attorneys’ fees are to be treated as part of “the cost of suit”, 15 U.S.C. § 15, and this court has treated attorneys’ fees as an item of costs rather than as part of the damage award. See North Texas Producers Association v. Young, 308 F.2d 235, 246 (5th Cir. 1962). See also Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531 n.2 (3d Cir. 1976); 6 J. Moore, Federal Practice ¶ 54.71[2], at 1380 (2d ed. 1975). Appellees do not contend that interest is payable on court costs as a general matter, and they fail to cite a single federal case in which interest was awarded on costs. Our own researches have also failed to uncover such a precedent. Against this background, it is significant that nothing in the statutory language or history of 15 U.S.C. § 15 indicates that Congress recognized a distinction between attorneys’ fees and other costs. The only Fifth Circuit case touching on this issue is Duffer v. American Home Assurance Co., 512 F.2d 793 (5th Cir. 1975), which reaffirmed the traditional view that costs do not bear interest. Duffer was a diversity case which presented the question of whether, under Texas law, attorneys’ fees are part of the judgment, which bears interest, or are an item of court costs, which do not bear interest. The controlling statute provided that “such attorney’s fee shall be taxed as a part of the costs in the case,” and in the absence of a controlling decision by the Texas Supreme Court and in light of the “unequivocal language of the statute,” we held that the trial court erred in awarding interest on the attorneys’ fee. 512 F.2d at 800. Although Duffer was a diversity case applying state law, it is somewhat instructive to note that faced with a statutory language similar to 15 U.S.C. § 15, and without any controlling precedent to bind it, the court held that attorneys’ fees are an item of costs and as such do not bear interest. In holding that attorneys’ fees in antitrust cases may not bear interest, we are not unmindful that Congress manifested a strong remedial purpose in its decision to reverse the historical pattern and provide for the award of attorneys’ fees to victorious plaintiffs in antitrust actions. However, Congress did not see fit to reverse the traditional practice of not awarding interest on court costs, if indeed it considered the question of interest or the policies underlying the historical practice. In the absence of further Congressional guidance, and in light of the fact that the provision of treble damages as well as attorneys’ fees in the antitrust laws affords sufficient scope to the remedial purposes of encouraging private enforcement of the antitrust laws and facilitating the procuring of legal services, we see no basis for stretching the applicable statutory language to provide interest on the award of attorneys’ fees to successful antitrust plaintiffs. Congress could, of course, provide that attorneys’ fees bear interest. Our holding that attorneys’ fees in antitrust cases are not to bear interest implies nothing whatsoever about the propriety of interest on attorneys’ fees authorized by other statutes. The language and history of a given statute might suggest that the public purposes underlying the statutory authority for attorneys’ fees would be materially advanced by allowance of interest, and the absence of a treble damage provision which complements the attorneys’ fee provision would also require consideration. Finally, we reject plaintiffs’ argument that to permit the losing party to retain the attorney fee award interest fee pending appeal encourages frivolous appeals. Rule 38 of the Federal Rules of Appellate Procedure already adequately deals with that problem by providing that if the court of appeals determines “that an appeal is frivolous, it may award just damages and single or double costs to the appellee.” In summary, we reverse the trial court’s determination that plaintiffs’ attorneys were entitled to interest on their fee award. III. The third issue raised on appeal is whether the trial court abused its discretion in taxing against the defendants as costs (1) sums expended by the plaintiffs for copying depositions and (2) fees paid by the plaintiffs to a special master who was appointed to determine both the amount owed defendant Ward on his counterclaim and the amount of damages sustained by plaintiffs on their claim. We first considered the taxation of costs for copies of pretrial depositions. In United States v. Kolesar, 313 F.2d 835 (5th Cir. 1963), we held that the cost of obtaining copies of depositions may be taxed as costs if the copy was “necessarily obtained for use in the case” Id. at 838-39, quoting 28 U.S.C. § 1920. This inquiry “inevitably calls for a factual evaluation:” The trial Judge must determine whether all or any part of a copy of any or all of the depositions was “necessarily obtained for use in the case.” In that evaluation, great latitude and discretion must be accorded the Judge. Reversal will require an abuse of discretion. 313 F.2d at 840. In the case at bar, nothing in the record indicates that the trial court ever made the necessary factual determination that there existed a reasonable need for the copies either in trial preparation or during the trial itself. The trial court did not hold an oral hearing as requested by the defendants, and his Order on Costs did not state that a reasonable need for the copies existed. Under the circumstances we reverse this portion of the award of costs and remand the case for the factual determination required by Kolesar. The trial court also taxed the defendants as costs $3,000 which initially had been assessed against the plaintiffs as their share of the special master’s fee. The master was appointed to determine the amount of damages on the plaintiffs’ claim and defendant Ward’s counterclaim. Defendants argue on appeal that because plaintiffs were not completely successful before the special master and because plaintiffs agreed to stipulate the sums owed on defendants’ counterclaim after the master had been appointed, the trial court abused its discretion in awarding as costs the plaintiffs’ share of the special master’s fee. In taxing costs the trial court is accorded great latitude and discretion, and his determination may be reversed only upon a showing of abuse of that discretion, LeLaurin v. Frost National Bank, 391 F.2d 687 (5th Cir.), cert. denied, 393 U.S. 979, 89 S.Ct. 447, 21 L.Ed.2d 440 (1968); 10 Wright & A. Miller, Federal Practice and Procedure § 2668. With regard to master’s fees, the Ninth Circuit has stated that: The compensation of a master is fixed by the court and paid as the court may direct. The prevailing party has a right to recover moneys paid for the master ‘as a part of its recoverable costs . . . .’ 9 C. Wright & A. Miller, Federal Practice and Procedure § 2608, at 798 (1971); accord, 6 J. Moore, Federal Practice K 54.-77[3], at 1718 (2d ed. 1974). K-2 Ski Co. v. Head Ski Co., 506 F.2d 471, 476-77 (9th Cir. 1974). The trial court in the instant case had full knowledge of the matters handled by the master and chose to award sums paid for master’s fees to the prevailing party as part of its recoverable costs under Rule 54(d) of the Federal Rules of Civil Procedure. We agree with the Ninth Circuit that moneys paid for a master are included in the recoverable costs under Rule 54(d). And unlike the requirement for taxing deposition reproduction costs, the trial court need not make any special factual determinations before taxing as costs moneys paid for a master’s fee. The fact that the trial court appointed the master constitutes a sufficient showing that the master’s services were necessary. It was thus within the scope of the trial court’s discretion to award as costs to the prevailing party their share of the special master’s fee. Finding no abuse of that discretion here, we affirm the award. IV. The final issue before us is whether the trial court erred in denying plaintiffs’ request for a nine percent rate of interest on their judgment beginning September 1, 1975, the effective date of the statutory interest rate increase. Interest was allowed on plaintiffs’ damage award at the rate of six percent per year on September 5, 1974. The federal statute authorizing interest provides that “such interest shall be calculated from the date of the entry of the judgment, at the rate allowed by State law." 28 U.S.C.A. § 1961 (emphasis supplied). At the date of the judgment the legal rate of interest on judgments in Texas was six percent. On September 1, 1975 the legal rate of interest in Texas was increased to nine percent. Tex.Rev.Civ.Stat.Ann. art. 5069-1.05 (Supp.1976). Plaintiffs now seek to recover nine percent interest on their judgment from September 1, 1975, the effective date of the statutory change. Section 1961 provides that the rate of interest on federal judgments shall be determined under state law. We believe that Congress, in mandating that state law shall control the rate of interest, also intended that state law would determine when changes in the state interest rate became effective. Thus state law should also control the question of whether a judgment entered before the date of the statutory interest increase may earn interest at the new statutory rate from the effective date of the statute. The Supreme Court of Texas has recently granted writs of error in two cases that present the precise issue before us in the case at bar. Trinity Portland Cement v. Coastal Industrial Water Authority, 551 S.W.2d 76 (Tex.Civ.App.1977), writ of error granted, No. B-6839, (Tex. S.Ct. Dec. 7, 1977); Sammons Enterprises, Inc. v. Manley, 554 S.W.2d 205 (Tex.Civ.App.1977), writ of error granted, No. B-6987 (Tex. S.Ct. Dec. 7, 1977). Rather than attempt to anticipate the decision of the Texas Supreme Court in these cases, we remand the question to the district court for reconsideration in light of the state court’s final resolution of the issue in Trinity Portland Cement and Sammons Enterprises. V. In conclusion, we affirm the district court’s holding that defendants were not entitled to offset their state court judgment against the attorneys’ fee award and that the plaintiffs should recover as costs their share of the special master’s fee. We reverse the lower court’s decision to allow interest on attorneys’ fees and to tax as costs fees spent for copying depositions. We remand the deposition cost issue for further proceedings consistent with our opinion in Kolesar. We also remand the issue of the appropriate interest rate on the judgment for reconsideration in light of the forthcoming Texas Supreme Court pronouncements. Finally, we leave the determination of whether attorneys’ fees should be awarded on this appeal and the amount of any such award to the district court on remand. We are mindful that by remanding the issues of deposition copy costs and post-September 1, 1975 interest rates on the judgment, we risk the possibility of yet another appeal by one of the parties. We entertain the perhaps naive hope that on remand these matters will be finally resolved to the parties’ acceptance, if not satisfaction, and that another appeal will not be necessary. Our wishfulness having been tempered by practical experience, however, we would not be shocked to again find this case on our docket a few years hence. We cannot escape the image of a ruefully smiling Charles Dickens, upon whose Bleak House this litigation appears to be modeled. The judgment of the district court is AFFIRMED IN PART, REVERSED IN PART, and REMANDED IN PART. . Plaintiffs, owners of franchised restaurants in Austin and San Antonio, brought suit against the franchisor and related individuals and corporations. Plaintiffs contended that defendants illegally combined to require the plaintiffs to purchase food, equipment, and supplies at excessive prices in order to obtain a franchise. . The state court judgment was apparently based on a loan made by the Austin National Bank to plaintiff Boone, payment of which was guaranteed by defendant Martin. When Boone defaulted on the loan, Martin paid off the bank’s note, which was then assigned by the bank to Martin. Martin then sued Boone on the note and on September 17, 1973 received a state court judgment in his favor in the amount of $106,285.86 plus interest. . Boone’s antitrust treble damage award totaled $228,350.90 (not including attorneys’ fees). Subtracting the $140,754.22 award to Ward on its counterclaim, Boone’s recovery was reduced to $87,596.68, $18,689.18 less than Martin’s state court judgment of $106,285.86. Thus if Martin is to recover all of his state court judgment from Boone’s federal judgment against him, Martin must somehow attach the $76,904.40 award of attorneys’ fees assigned by Boone to his counsel. . In arguing against the assignment in their brief before this court in Carpa I, defendants stated: After the offsets Ward was entitled to based on its claims for accounts receivable and royalty against Boone and offsetting the amount of the Austin State Court judgment against Boone, Boone’s net recovery [including the award of attorneys’ fees] would have been less than the attorney’s fees to be allocated to him under the [original] judgment Brief of Appellees-Cross Appellants Ward-Martin at 64, Carpa I, supra. Thus the defendants recognized, and brought to this court’s attention in the first appeal, the fact that plaintiff Boone’s federal judgment (not including attorneys’ fees) was less than the amount Boone owed the defendants on Ward’s federal counterclaim and Martin’s state court judgment, and that defendants therefore would have to look to the attorneys’ fees award to satisfy fully their judgments against Boone. Knowing that Martin intended to offset his state court judgment against his attorney fee liability, this court in Carpa I nonetheless validated the assignment by Boone which we recognized was designed to prevent such an offset. . We note in this regard that the treble damage provisions of the antitrust laws were designed in part to help finance litigation expenses in private antitrust suits. By creating the possibility of sizeable damage awards, Congress encouraged attorneys to try antitrust cases on a contingent fee basis. . The governing statute provides that A judge or clerk of any court of the United States may tax as costs the following: (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case .... 28 U.S.C. § 1920. In Kolesar, supra, we stated that depositions were included by implication in the phrase “stenographic transcript.” 313 F.2d at 837-38. . Rule 54(d) provides in relevant part that “Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.” . Plaintiffs also were denied a nine percent interest rate on their attorneys’ fee award. In light of our holding that no interest is to be awarded on attorneys’ fees in this case, we need not consider whether an interest rate increase should have been granted. . We note that plaintiffs do not seek nine percent interest from September 5, 1974, the date of the original judgment, but rather from September 1, 1975, the date of the statutory change. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_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. MacFARLAND v. UNITED STATES. No. 6372. United States Court of Appeals Fourth Circuit. Argued June 17, 1952. Decided Sept. 11, 1952. William J. Cocke, Asheville (W. M. Styles, Asheville, on the brief), for appellant. Thomas A. Uzzell, Jr., U. S. Atty., Ashe-ville, for appellee. Before PARKER, Chief Judge, and SO-PER and DOBIE, Circuit Judges. PARKER, Chief Judge. This is an appeal from a judgment in favor of the United States in .an action under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671-2680, to recover damages on account of wrongful death. Plaintiff is the administrator of the estate of Robert L. MacFarland, who was killed as the result of the collision of a motor bicycle which he was riding with a chain blocking a road which served as a private driveway on the grounds of the United States Veterans Facilities at Oteen, North Carolina. Plaintiff claimed that there was negligence on the part of officers of the government in the maintenance of this road block which caused the death of decedent. The trial judge held against plaintiff on this contention and found that the death of decedent resulted from his negligent operation of the motor bicycle. The fatal accident occurred around 7 o’clock P.M., January 26, 1950, while decedent, a young man twenty-one years of age, was riding his motor bicycle to a Boy Scout meeting which he was to attend on the Oteen reservation or to the home of a friend who lived near the meeting place. The chain into which he ran was stretched across a paved driveway which ran parallel with the Riceville Road on the reservation and to the rear of residences fronting on that road. The driveway was an open public road for a short distance after leaving the Riceville Road near a building maintained as nurses’ quarters, but south of this building was used as a private or service driveway for the residences fronting on the Riceville Road. The part used as a service driveway was blocked off by a chain stretched between posts, with stop signs to the right and left. To the right was a large white sign 2 by 3% feet bearing the words in large black letters, “Stop — Do Not Enter”. To the left was a standard highway stop sign painted yellow with black lettering. . Suspended from the chain was an additional sign 8 by 18 or 20 inches in size, painted white and with the word “Stop” in black lettering. Plaintiff contends that this sign had become detached from the chain;, but the judge found to the contrary and his finding is supported by positive evidence that it was in proper place on the morning of the accident. The fact that it was detached after the accident may well have been due to the accident itself. The judge found that the driveway was adequately lighted and that the road block could be easily seen; and there is evidence to support this finding, although there is evidence that the lights were painted in such way as to prevent annoyance to occupants of the nurses’ quarters and nearby residences. There is evidence that the public was forbidden to use the driveway south of the road block, that tradesmen were allowed to use it only when they had express permission and that those using it were supposed to take down the chain for passage and replace it after they had passed. There is evidence also that decedent was thoroughly familiar with the situation and that he and others attending prior Boy Scout meetings on the reservation had been notified that facilities for the meetings were being furnished them on certain conditions, one of which was that they should not use the service driveway in connection therewith. There is evidence to the effect that at the time of the accident decedent was operating the bicycle without lights and at a high rate of speed, and the judge so found. The speed in the service driveway was limited to twelve miles per hour and a sign near the southern end thereof bore a legend to that effect. Decedent was evidently going at an excessive rate of speed, as is shown by t.he fact that, although weighing around 160 pounds, he was thrown a distance of 55 feet beyond the point of collision. The trial judge found that “the plaintiff’s intestate, twenty-one years of age, should not have been operating his motor bicycle in the night time without lights and at a speed or in a manner which would likely endanger his safety and which seemingly resulted in his running into the stretched chain across the roadway, the existence of which he was well aware and' of the restrictions with which he was familiar.” The questions in the case are pure questions of fact and we cannot say that the trial judge was clearly wrong in his conclusions either as to negligence or contributory negligence. On the question of negligence, there is room for argument that a light should have been placed upon the road block, in view of the fact that the public was allowed to use the northern end of the road and there was danger of running into the block unless it was marked in such way as to call attention sharply to its existence. There was evidence, however, that the road block was clearly marked, that the stop sign was hanging from the chain, that the driveway was lighted so that the block and signs could be seen and that it was well known to decedent as well as others that the road was blocked off and was not to be used by the public. We cannot say that, on this evidence, the judge’s finding exonerating the defendant of negligence was clearly wrong; but even if we should do so, it is perfectly clear that deceased was guilty of contributory negligence in driving his motor bicycle at an excessive rate of speed and without lights into the road block with which he was thoroughly familiar and that this would bar recovery by his administrator. Affirmed. 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:
songer_direct1	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. WOODS, Housing Expediter, v. CAROL MANAGEMENT CORPORATION et al. No. 278, Docket 21003. Circuit Court of Appeals, Second Circuit. June 16, 1948. Ed Dupree, Gen. Counsel, Hugo V. Prucha, Asst. Gen. Counsel, and Nathan Siegel, Sp. Litigation Atty., Office of the Housing’ Expediter, all of Washington, D. C., for plaintiff-appellant. Dreyer & Traub, of Brooklyn, N. Y. (George A. Roland, of Brooklyn, N. Y., of counsel), for defendants-appellees. ' Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. The order 'appealed from denied the Housing Expediter’s application for an. injunction pendente lite restraining defendants from interfering with inspections and investigations in apartment houses owned and operated by defendants and directing defendants to permit the Housing Expediter and his agents to enter upon and have ingress along the common public passageways to various apartments, as may be required from time to time in making inspections and conducting investigations. The defendants are landlords and operators of various multiple housing accommodations within the New York City Defense-Rental Area. Without dispute, their accommodations at all times from November 1, 1943, until June 30, 1947, were subject to the Rental Regulation for Housing 'for the New York City Defense-Rental Area, as amended, referred to as the “Rent Regulation,” issued pursuant to the Emergency Price Control Act of 1942, 50 U.S. C.A.Appendix, § 901 et seq. At all times after July 1, 1947, defendants’ accommodations were subject to the Controlled Housing Rent Regulation for the New York City Defense-Rental Area, called the “Controlled Regulation,” issued pursuant to the Housing and Rent Act of 1947, 50 U.S.C.A.Appendix, § 1881 et seq. In November 1947 the Expediter authorized his agents to make an inspection of defendants’ housing accommodations in order to determine whether the latter had complied with the provisions of the Rent Regulations and the Acts of 1942 and 1947. The Expediter instituted the investigations because of complaints received from tenants charging that the defendants had demanded and received rent in excess of the maximum permitted by law both before and after July 1, 1947, when the Act of 1947 went into effect. Representatives of the Expediter who called at the defendant’s apartment house in Queens, and afterwards at the office of the latter at 12 East 48th Street, New York City, were denied access to any of the buildings of the defendant for the purpose of conducting an inspection, whereupon the Expediter brought the present suit to restrain the defendants from interfering with the plaintiff’s inspections and moved for the injunction pendente lite which as we have said was denied by the district court. Under Section 202(b) of the 1942 Act the Expediter might require any person renting housing accommodations “to permit the inspection * * * of defense-area housing accommodations.” Section 8 of the rent regulations also required “any person who rents * * * and any tenant to permit such an inspection of the accommodations by the Housing Expediter as he may from time to time require.” This regulation was continued under the Housing and Rent Act of 1947. Where any person engaged in acts in violation of the foregoing provisions or regulations of the Act of 1942 the Expediter was authorized by Section 205(a) of that Act to apply to an appropriate court for an order enforcing compliance. Section 1(b) of the Act of 1942, as amended by the 1946 Act, contained the following provisions: “The provisions of this Act, and all regulations, orders, price schedules, and requirements thereunder, shall terminate on June 30, 1947, or upon the date of a proclamation by the President, or upon the date specified in a concurrent resolution by the two Houses of the Congress, declaring that the further continuance of the authority granted by this Act is not necessary in the interest of the national defense and security, whichever date is earlier; except that as to offenses committed, or rights or liabilities incurred, prior to such termination date, the provisions of this Act and such regulations, orders, price schedules, and requirements shall be treated as still remaining in force for the purpose of sustaining any proper suit, action, or prosecution with respect to any such right, liability, or offense.” From the foregoing provisions it seems-to follow that Section 202(b) of the Act of 1942 specifically authorizing inspections, remained in force and covered all offenses-committed before July 1, 1947. This view is supported by the decision of the Supreme Court in Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 119, 67 S.Ct. 1129, 91 L.Ed. 1375. But, apart from those provisions we think the Expediter has the power of inspection claimed here both as to prior and as to the later offenses alleged in the case at bar. Though the 1947 Act decreased somewhat the scope of the authority of the Expediter it still imposed upon him the duty of limiting the rents to existing ceilings, subject to a power of adjustment in the interest of justice. It did not in terms provide for inspection and it omitted the power to issue subpoenas given under the 1942 Act. We, however, believe it to be clear that the-duties imposed by the Act of 1947 as well’ as the regulation adopted pursuant to Section 204(d) thereof justify the right to inspect leased premises in order to detect violations. If, as we hold, the Expediter-through his agents has such a right, Section 206(b) of the 1947 Act and Section-205 (a) of the 1942 Act enabled him to apply for “a permanent or temporary injunction, restraining order, or other order” to-enforce compliance with the Act. The violations of the Act relied upon by the plaintiff were,the refusal to allow inspection and the withholding by the defendants of access to their tenants. The-Expediter represented a public interest and' had an authority to take necessary steps-to prevent such violations. While his information about violations was derived; from complaints of tenants, such complaints, when reasonably verified, might form the basis for various proceedings to enforce the Act, and we see no justification for inconveniencing both the Expediter and the tenants by requiring the former to make his investigations in the roundabout way of summoning the tenants to his office rather than in calling upon them at the apartment and directly ascertaining conditions there. Indeed, it is impossible to see what right the defendants had either to exclude their tenants from having callers or to debar the representatives of the Expediter who wished to talk with the tenants about the alleged grievances of the latter. These representatives sought to call on the tenants as to lawful business with which both the Expediter and the tenants were properly concerned. They were in no sense mere interlopers whom the landlords might exclude from the passageways in the apartment house. For the foregoing reasons the order of the district court is reversed and the case Is remanded with instructions to issue an injunction pendente lite in accordance with {lie views expressed in this opinion. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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". GREEN v. CITY OF STUART. No. 7695. Circuit Court of Appeals, Fifth Circuit. Feb. 18, 1936. Rehearing Denied March 6, 1936. _ „ _ , Carro l Dunscombe, of Stuart, Fla.,, for appe an . A. O. Kanner, of Stuart, Fla., for appellee- • ' Before FOSTER,- HUTCHESON, and WALKER, Circuit Judges. WALKER, Circuit Judge. „ a1 The appellant sued the appellee, the city of Stuart, a Florida municipal corporation to recover the balance, including interest, alieged to be due on three promissory notes, for $5 00Cl each, executed by appellee on May 19, 1926, and made payable to the order of Osceola Golf Club; appellant’s amended declaration alleging “that the said notes were, indorsed in blank by the payee, Osceola Golf Club, and assigned and delivered before maturity by the said Osceola Golf Club for value received to the plaintiff.” The appellee set up as defenses: (1) That said notes were given for the balanee of the purchase price of ten acres of land which appellee agreed to buy from the Osceola Golf Club for a ball park and athletic field, and that at the time of the execution of said agreement and said notes one Stanley Kitching was serving as one ofthe dul7 elected< qualified, and acting commissioners of appellee, and at the same time was a stockholder of said Osceola Golf Club, and that therefore said attempted sale of land was wholly null and void, and that the consideration thereof has wholly failed; (2) that the action of the appellee in entering into said agreement for the purchase of land for an athletic field' and ball park was wholly illegal and void, in that said agreement was not for a mu-nicipal purpose and was wholly unauthorízed, and that appellee did not have power, under its charter or the laws of the state of Florida, to make such agreement; (3) that the description of land contained in the , j £ i ir r-i -u ¿ n deed of the Osceola Golf Club to appellee and be morgage of appellee to said Osceola Golf Club to secure the payment of the ^ , . , , ., notes sued on was meaningless and void,ir-n-p-ir and that said Osceola Golf Club never .cor-rected said deed, and never made a proper conveyance to appellee, although often re-quested to do so. By way of replication to appellees pleas, the appellant set up: That appellee’s governing body, by resolution adopted on March 9, 1929, provided for the issue, under a described act of the Legislature of Florida, of bonds of the appellee h1 the amount of $198,000, and that said bonds or the proceeds from the sale thereof shall be used exclusively for the purpose 0f refund¡ng 0f certain notes and obligations of appellee, aggregating the sum of $198,000, which are set out in a list or schedule attached to that resolution, and are ratified and declared to be valid obligations, the above-mentioned notes made by appellee to the Osceola Golf Club being included m that list or schedule; and that an thfi L islature of Florid ap_ d A a 2Ó 1929 (Sp.Acts Fla.1929, c. 14407) authorizi the issue b appellee 0f bonds in an amount not exceeding $210)000 for e of liquidating the outstand floating btedness of appellee, and validating said indebtedness, after referring to ^ description of such indebtedness con-tarmed “ above-mentioned resolution of appellee’s governing body expressly validated said indebtedness m all respects, The appellee contended that it was without power under its charter to buy land for a ball park and athletic field, and in support of its first above mentioned defense invoked the following provision of the charter: “Officers and employees of the city may hold more than one office in the City Government but shall not be interested in the profits or emoluments of any contract, work or service for the municipality, and any such contract in which any member is, or may become interested, shall be declared void by the Commission.” In the trial there was evidence to the following effect: When the above-mentioned resolution of appellee’s governing body of March 9, 1929, was adopted, whereby the notes sued on were ratified, Stanley Kitching was not a member of appellee’s governing body. When the Osceola Golf Club made the above-mentioned sale, possession of the land which was the subject of that sale was delivered to appellee, which retained possession of that land. The description of the land contained in Osceola Golf Club’s deed to appellee was furnished by appellee’s engineer. Upon the conclusion of the evidence, appellee moved for a directed verdict in its favor, on grounds including the following: That there was an attempt to validate or ratify a contract prohibited by law; that there was an attempt to carry out an act not authorized for a municipal purpose; that there was no proof contradicting or disproving appellee’s defense based on the indefiniteness of the conveyance of the Osceola Golf Club to appellee. In granting that motion, the court, after mentioning the fact that, when appellee paid to the Osceola Golf Club part of the purchase price of the land, Mr. Kitching was a commissioner of appellee and was also a stockholder and interested in the Osceola Golf Club, stated: “We must apply the law of Florida, which is the law governing this case in reference to the validity and indemnity of the contracts of a City, and prevent City Officials from dealing -with the City in matters in which they are interested, and I shall direct a verdict for the defendant in this case under the law.” It appears that the action of the court in directing a verdict in favor of the appellee was the result of the conclusion that the notes sued on were void and unenforceable, because, when appellee entered into the transaction of which the giving of those notes was a part, one member of the governing body of the appellee was a member of the club which was the payee in those notes, and as such member had a financial interest in that transaction. The failure of the court, in stating the ground of its ruling, to mention what was done to the end of validating the notes sued on, indicates that the court regarded as ineffectual the attempts of appellee’s governing body and of the Legislature of Florida to validate those notes. The part of the above set out provision of appellee’s charter to the effect that any contract of the appellee in which any member of its governing body is, or may become, interested shall be declared void by the commission does not indicate a purpose to deprive the appellee of the power, at a time when no member of its governing body is interested in a contract theretofore attempted to be made by the appellee when one member of its governing body was interested in that contract, to ratify that contract, which, when it was entered into, was void or voidable by reason of a member of appellee’s governing body being interested in it. So far as we are advised, when appellee’s governing body adopted the above resolution of March 9, 1929, ratifying the notes sued on, after Stanley Kitching had ceased to be a member of appellee’s governing body, no legal obstacle stood in the way of that action. In the absence of a statute forbidding such municipal action, it was within the power of appellee’s governing body to ratify the notes sued on in the manner adopted. Cady v. City of Watertown, 18 Wis. 322; City of Fort Wayne v. Railway Co., 132 Ind. 558, 32 N.E. 215, 18 L.R.A. 367, 32 Am.St.Rep. 277, 282 ; 3 McQuillan on Municipal Corporations, § 1257. So far as we are advised, nothing stood in the way of the Legislature of Florida validating the notes sued on. Any lack of power of appellee to bind itself by those notes when they were executed was cured by the above-mentioned act of the Florida Legislature. Anderson v. Santa Anna Tp., 116 U.S. 356, 364, 6 S.Ct. 413, 29 L.Ed. 633; White Water Valley Canal Co. v. Vallette, 21 How. 414, 16 L.Ed. 154. The court erred in ruling that the notes sued on are invalid. In the circumstances disclosed, the alleged insufficiency of the description in the Osceola Golf Club’s deed to appellee of the subject of the conveyance did not constitute a defense to appellant’s action. It appears that appellee got the land it intended to buy. A misdescription of the land in the seller’s deed entitled appellee to have that instrument so reformed as correctly to describe that land. 23 R.C.L. 335. But the insufficiency of the deed’s description of that land did not entitle appellee to keep that land and be exempt from the obligation to pay the agreed price of it. The judgment is reversed. 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_judrev	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 civil law issues involving government actors. The issue is: "Did the court conclude the decision was subject to judicial review?" While questions of fact are subject to limited review, questions of law are subject to full review. The problem becomes determining which are clear questions of law or fact as they are often "mixed". 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". UNITED STATES v. GLASSER et al. Nos. 7315-7317. Circuit Court of Appeals, Seventh Circuit. Dec. 13, 1940. Rehearing Denied Jan. 23, 1941. John Elliott Byrne, Joseph R. Roach, and Alfred E. Roth, all of Chicago, 111., for appellants. William J. Campbell, Martin Ward, and Francis J. McGreal, U. S. Attys., all of Chicago, 111., for appellee. Before SPARKS, TREANOR and KERNER, Circuit Judges. KERNER, Circuit Judge. This is an appeal from a judgment rendered on a verdict of guilty upon an indictment charging the above named defendants, together with Anthony Horton and Louis Kaplan, with a conspiracy to defraud the United States under Section 37 of the Criminal Code, R.S. Sec. 5440, 18 U.S.C.A. § 88. All of the defendants were found guilty. Glasser, Kretske and Kaplan were each sentenced to imprisonment for a term of 14 months, Horton was placed on probation, and Roth was ordered to pay a fine of $500. Only Glasser, Kretske and Roth separately appealed. The defendants demurred to the indictment and entered a motion to quash on the grounds: (1) That the grand jury was illegally constituted because women were excluded therefrom; (2) that the indictment was not properly returned in open court; and (3) that it was defective. The demurrers and the motion to quash were overruled. On oral argument- the principal point stressed was that the evidence failed to sustain the verdict of the jury, although other points were raised in the briefs. All of these will be discussed in due course. The Motion to Quash. It is claimed that the District Court erred in overruling the motion to quash the indictment, because the grand jury that found and presented the indictment was not lawfully constituted, in that, the commissioner appointed to select the grand jury selected no women to serve on the grand jury. The indictment was filed on September 29, 1939. On May 12, 1939, the Legislature of the State of Illinois enacted an Act making women eligible for jury. The constitutionality of that Act was sustained on August 8, 1939, in People v. Traeger, 372 Ill. 11, 22 N.E.2d 679. The Northern District of Illinois is composed of 18 counties of the State of Illinois. Under the Act in question the county boards of 17 of these counties were privileged to wait until September 1,, 1939, before including women on the jury lists. The members of the September 1939 grand jury were summoned for duty on August 25, 1939. It follows that there was no irregularity in not including -women on the jury list. Moreover in the affidavits filed in support of the motion to quash, it was not alleged that the appellants have been prejudiced in any way or that anyone of the grand jurors was incompetent or in any way disqualified. Under such circumstances irregularities in the selection of jurymen are to be disregarded. Wolfson v. United States, 5 Cir., 101 F. 430; Moffatt v. United States, 8 Cir., 232 F. 522; and Petition of Salen, 231 Wis. 489, 286 N.W. 5. The reason for this rule is that the grand jurors do not try the case but merely charge the accused. The manner, of their selection is of no consequence to him, he being entitled to claim only fair and impartial grand jurors who possess the necessary qualifications, whereas it is of great consequence that the administration of justice shall not be delayed by mere technical objections. People v. Lieber, 357 Ill. 423, 436, 192 N.E. 331. Was the Indictment Properly Presented? The point is made that- to constitute a valid indictment, it must appear that the indictment was presented in open court and the fact entered of record. It is true that a defendant cannot rightfully be put upon trial for a criminal offense prosecuted by an indictment unless the record shows that the indictment was returned into open court by a grand jury. It need not, however, appear by any set form of phraseology that the grand jury appeared in open court and returned the indictment. All that is necessary is that by apt words it must be made to appear from the record that the grand jury appeared in open court and returned into court the indictment to which the defendant is required to plead. The record now before us shows that it contains a placita in regular form showing the convening of the court and recites the presence of the Judges of the Court of the Northern District of Illinois, Eastern Division, the United States Marshal and the Clerk of the Court; that on September 29, 1939, at a regular term of the District Court of the United States for the Eastern Division of the Northern District of Illinois, the grand jury returned four indictments in open court. On the face of the indictment in this case in the handwriting of the Clerk of the Court is the statement, “Filed in open court this 29th day of September, A: D. 1939, Hoyt King, Clerk,” and preceding this statement is a notation “A true bill,” “George A. Hancock, Foreman.” We are of the opinion that the record in this case is sufficient, and the contention cannot be sustained. Is the Indictment Defective? The indictment charged a conspiracy to defraud the United States under Section 37 of the Criminal Code, 18 U.S.C.A. Section 88, which provides that: “If two or more persons conspire * * * to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.” Now, the appellants make the point that the indictment is defective, because (a) it is duplicitous, (b) it is repugnant and inconsistent, and (c) it is vague and indefinite. The indictment in substance charged that the defendants and divers other persons to the grand jurors unknown, conspired to defraud the United States of and concerning its governmental function to be honestly, faithfully and dutifully represented in the Courts of the United States by an Assistant United States Attorney, to prosecute certain delinquents for crimes and offenses cognizable under the authority of the United States as the same should be presented and determined according to law and justice, free from corruption, improper influence, dishonesty or fraud, and more particularly its right to a conscientious, faithful and honest representation of its interest in certain suits and causes brought 'and pending in the United States in the Northern District of Illinois by promising, offering, causing and procuring to be promised and offered, money and other things of value to an officer of the United States, and to persons acting for and on behalf of the United States in an official function under and by authority of a department and office of the Government of the United States, with intent to influence his decision and action on certain questions and causes which-were at times pending, and which were by law brought before such officer in his official capacity, and with the intent to influence to commit and in committing, and to collude in committing certain frauds on the United States, and to induce such officer to do and to omit from doing certain acts in violation of his lawful duty. The indictment further alleged that Glasser was an Assistant United States Attorney for the Northern District of Illinois, employed to prosecute all delinquents for crimes and offenses cognizable under the authority of the United States, and as such he did act for and on behalf of the United States in certain official functions under and by authority of the Department of Justice of the United States, and as such officer he had certain decisions to make and actions to take on certain questions, causes and proceedings brought before him in the performance of his duties as such Assistant United States Attorney; that it was part of the conspiracy that the defendants would solicit certain persons named in the indictment, charged with violating or about to be charged with violating the laws of the United States, to promise or cause to promise money to be paid or pledged to the defendants to be used to influence and corrupt Glasser in his official capacity in his decisions on certain questions, causes and proceedings, with the intent that the defendants would accept and use said money to corruptly, wrongfully and improperly influence Glasser in his decisions and thus allow a fraud to be committed on the United States in violation of his lawful duties as an Assistant United States Attorney. The indictment further alleged that Glasser would meet and hold conversations with the other.defendants and inform them what they should do to carry out the conspiracy and would instruct them as to what steps or action each of them would take in the matters in which he was representing the United States Government and thus Glasser conspired with the other defendants to defraud the United States of and concerning its governmental function to be honestly, faithfully and dutifully represented in the courts of the United States by an Assistant United States Attorney. The Government furnished the appellants with a bill of particulars in which many overt acts were specified, in each of which one or more of the alleged conspirators is alleged to have participated. It is claimed that the indictment is duplicitous because, it is said, it charges two offenses. With this contention we cannot agree for the reason that in our opinion the indictment charges merely a conspiracy to defraud the United States Government, entered into between an Assistant United States Attorney, the defendants Kretske, Roth, Horton, Kaplan and other persons to the grand jurors unknown. Nor is the indictment repugnant and inconsistent on the ground that it alleges that the defendants conspired with each other and with other persons to the grand jurors unknown. United States v. Heitler, D.C., 274 F. 401; United States v. Manton, 2 Cir., 107 F.2d 834, 839. Appellants also complain that the indictment is defective because it alleges a case where concerted action is necessary, and that in such a case, conspiracy will not lie, and they cite a line of cases where that principle has been upheld. These cases are not in point for the reason stated in United States v. Manton, supra. In that case it was charged that the defendants had conspired to defraud the United States of and concerning its right to have the lawful functions of the judicial power of the United States exercised and administered free from corruption, improper influence, dishonesty and fraud. In disposing, adversely to the defendants, of a like contention as is here made, the court said (page 839 of 107 F.2d) : “The indictment does not charge as a substantive offense the giving or receiving of bribes; nor does it charge a conspiracy to give or accept bribes.” So also in our case the indictment charges a conspiracy to defraud the United States of and concerning its governmental function to be honestly and faithfully represented in the courts of the United States by an Assistant United States Attorney, to prosecute delinquents for crimes, free from, corruption, dishonesty and improper influence. See also Miller v. United States, 2 Cir., 24 F.2d 353; Cendagarda v. United States, 8 Cir., 64 F.2d 182; and Chadwick v. United States, 6 Cir., 141 F. 225. The appellants also contend that the indictment does not advise them of the nature of the charge against vthem with reasonable particularity as to the persons, time, place and circumstances. Each of the appellants raises this point in his brief, but no one of them argues the point. To us it seems that the indictment sufficiently apprised the appellants of the charge against them. We come now to the main question in the case: Whether there was sufficient evidence to support the verdict. It is argued by Glasser that there is no evidence whatever that he conspired with anyone for any purpose or that he solicited or received any bribes or that he was influenced in his official decisions. Kretske argues that the testimony tending to connect him with the offense charged, was entirely that of accomplices and therefore does not rest upon a substantial evidential basis. And Roth argues that the case rests on conjecture,, suspicion and inference, and that the evidence as to him is wholly consistent with, his innocence. In order to consider the error here assigned, it is imperative that we analyze appellee’s evidence in the light of the charger made in the indictment. This we have: done. The trial was long, consuming about 26. days, and the record is voluminous, consisting of the testimony of 106 witnesses, and a large number of exhibits. Undoubtedly it would be interesting to detail the-evidence at length, but that would unduly-lengthen this opinion. We think it will suffice if we but enumerate the more important facts and appellants’ connection or association with the suits and matters involved in the conspiracy. From the record it appears that from March 13, 1935 to June 23, 1939, Glasser was an Assistant United States Attorney and .that Kretske was an Assistant United States Attorney from October 1, 1934, to April 15, 1937, both assigned to the handling of Alcohol Tax Law violations. Horton was a professional bondsman and provided sureties for persons required to give bond involving violation of laws brought against such persons by the United States. He met and spoke frequently with Glasser and Kretske in the United States Court House. One of the matters involved in the conspiracy related to a Chrysler Sedan. It was a libel action in which it was charged that the automobile, seized upon the premises of one Leo Vitale at Peru, Illinois, had been used in connection with a liquor tax violation. The cause came up for hearing before a District Judge on December 23, 1938. Appellee was represented by Glasser, and Roth represented Rose Vitale, wife of Leo Vitale. Roth informed the trial court that the automobile belonged to Mrs. Vitale and had not been used in the manufacture of alcohol. Thereupon an investigator of the Alcohol Tax Unit,, who had caused the seizure, informed Glasser that Roth was not informing the court of the true facts nor advising the court that Vitale had heretofore been convicted and sentenced to the penitentiary in the Southern District of Illinois for liquor tax violations, and requested that he be permitted to so advise the trial court. Glasser directed the investigator to leave the court room. The trial court ordered that the automobile be returned to Rose Vitale. Shortly after December 23, 1938 this investigator informed Glasser that he had a number of witnesses to whom Vitale had said that he (Vitale) had “got out of this for $900” and the investigator suggested that Glasser inquire of Vitale as to who received the $900. Glasser said he would, but he never did. Elmer Swanson and Patsy Del Rocco, in the latter part of 1936, were engaged in the illicit manufacture of alcohol at 116 W. 119th Street, Chicago, Illinois. The still was seized by the Government. Within a short time after the seizure Swanson met the defendant Horton, who informed Swanson that Swanson and Del Rocco were going to be indicted, but that he (Horton) could take care of it for $500 which would be taken down town and given to the boss. He mentioned “Red” as the boss. It is undisputed that Glasser has red hair and is known as “Red.” The $500 was paid to Horton in currency. Nothing more was. heard concerning the seizure of the still after the payment of the $500 nor were Swanson or Del Rocco indicted. It further appears that on December 31, 1937, Swanson and the Hodorowicz Brothers operated another still at 6949 Stony Island Avenue, Chicago, Illinois, which also was seized by the Government. Swanson was arrested and arranged for a bail bond through Horton. Roth was retained as an attorney to defend, having been recommended by Kretske, whom Swanson had met at Hodorowicz’ hardware store. Frank Hodorowicz operated a hardware store at 11823 South Michigan Avenue and it was there, early in 1938, that Kretske, Horton, Plodorowicz and Swanson met. Horton introduced Kretske. There it was that Kretske said he would take care of the case; for $1,200 “it was supposed to be fixed up so nobody goes to jail.” $500 in currency was paid to Kretske at his office, the balance to be paid later. At that conversation Kretske said: “Don’t worry about a thing. Everything will be taken care of.” Kretske also said that Glasser was to get part of the money and part was to take care of another lawyer. The case was placed on Judge Woodward’s calendar, Glasser representing the Government and Roth the defendants. On April 28, 1938, on Glasser’s motion, the indictment was stricken with leave to reinstate. Swanson paid no money to Roth for his services. Prior to September 1, 1937, an illegal still was being operated in a garage on 118th Place, Chicago. On September 1, 1937, investigators of the Alcohol Tax Unit raided the garage and arrested Peter Hodorowicz and Clem Dowiat. After the arrest Frank Hodorowicz called upon Kretske and inquired whether Kretske could take care of the case and was told that he (Kretske) “would have to look into it.” Kretske told Hodorowicz to return in a few days. On September 23, 1937, Hodorowicz again called upon Kretske and was informed that for $800, to be delivered to Red, the case could be settled. Hodorowi'cz- gave Kretske $800. After the money was given to Kretske, Kretske informed Hodorowicz that “Everything is taken care of for to-morrow morning.” The next morning Peter Plodorowicz and Clem Dowiat were discharged by the United States Commissioner. .It further appears that on June 3, 1938, 'Clem Dowiat and Frank and Peter Hodorowicz were indicted, charged with unlawful possession of distilled spirits.. Roth was retained to represent the defendants, and while the case was pending in the District Court Frank Hodorowicz and Kretske had a conversation in which Kretske stated that nothing could be done for Hodorowicz because “There is too much heat.” Thereafter Frank Hodorwicz called at Glasser’s office and complained that he was getting a raw deal to which complaint Glasser replied: “Bailey says he will get my job if I don’t put you away” and “all the money in the world * * * can’t do you no good this time.” After this conversation Roth’s services were dispensed with and other counsel represented the defendants in that case. They were found guilty and on appeal the judgment was affirmed. United States v. Hodorowicz et al., 7 Cir., 105 F.2d 220. On September 10, 1935, while one Victor Raubunas was conducting a tavern in Chicago, the defendant Kaplan came to the tavern and suggested that Raubunas engage in the illegal manufacture of alcohol, assuring Raubunas that the business would be protected “through the Federal Building” but that it would cost $1,000 to secure the protection. Raubunas gave Kaplan $1,000 and thereafter Raubunas, Kaplan, Adam Widzes and one Ralph Bogush operated a still at 2524 South Western Avenue. On July 2, 1936, investigators of the Al-c.ohol Tax Unit raided the premises and seized the equipment. During 1936 Kaplan and Raubunas had other transactions involving the illegal manufacture of untaxpaid' spirits and Raubunas made several visits to a garage operated by Kaplan at Kedzie and Ogden Avenues. On one of these visits he saw Kaplan enter an automobile with Kretske and Glasser and drive away with them. In October or November of 1936 Raubunas, Kaplan, Edward R. Dewes and several other men operated a still, manufacturing alcohol, at Spring Grove, Illinois, until January 1937, when it too was..raided by Government officers. In July, 1937, the Alcohol Tax Unit brought to Glasser’s attention the Western Avenue and Spring Grove still violations and requested prosecution. Written reports containing information implicating Kaplan, Raubunas and others were furnished. Glasser appeared before the grand jury. The grand jury returned a No Bill against Kaplan, Raubunas, Widzes and Bogush in the Western Avenue still. It further appeared that the Alcohol Tax Unit commenced its investigation of the Spring Grove still on February 10, 1937, a final report being submitted to the District Attorney in July, 1937. Between February and July of 1937 several of the investigators held conferences with Glasser regarding the names of possible witnesses and their testimony. Glasser informed one of the investigators that he had heard that Kaplan was a notorious bootlegger and that there was sufficient evidence to obtain his indictment and conviction.- On May 15, 1938, after the defendant Horton had informed Edward R. Dewes that Kretske desired to see Dewes, Horton and Dewes called at Kretslce’s office. There Kretske advised Dewes that the grand jury was in session and that if Dewes could raise $100, he (Dewes) would not be indicted for the Spring Grove still. On May 17, 1938, at Kretske’s office in the presence of Horton, Dewes gave Kretske $100. The money, Kretske said, would be sent over to the red-head. It further appears that Glasser presented the evidence relative to the Spring Grove still to the grand jury on May 17, 1938, and told the jurors who should be named in the True Bill. Notwithstanding there was evidence implicating Kaplan, Dewes. and Raubunas, a No Bill was returned against them. On August 25, 1938, one Walter Kwiatkowski was arrested while driving an automobile containing untaxpaid alcohol, taken to Glasser’s office and charged with unlawful possession of distilled spirits. He was released from custody upon a bail bond furnished by defendant Horton. Prior to the hearing before the United States Commissioner, Horton informed Kwiatkowski that “he could fix the case for $600.” Kwiatkowski withdrew $3750 from his savings account in a Chicago Bank and gave Horton $600. The Commissioner dismissed the complaint. Glasser appeared for the Government. On November 10, 1938, the Treasury Department requested Glasser to present the Kwiatkowski case to the Grand Jury. Glasser took no action in the matter. In February, 1938, Investigator Thomas Bailey informed Glasser that one Frank Brown, recently convicted of a liquor violation and confined in the Cook County Jail, desired to impart information relative to others implicated in the violation. Brown was brought to Glasser’s office and there stated that one Nick Abosketes was connected with the illegal operation of the still upon the Murdock Farm, in' Illinois. Shortly thereafter one William M. Brant-man from Chicago, called Nick Abosketes over the telephone at Milwaukee, Wisconsin. The following day Abosketes came to Brantman’s office in Chicago. Brantman told Abosketes that he had connections with the Federal Building and could stop things, and that Brown had given certain information to the Federal people connecting him with the Murdock Farm still. On April 19, 1938, Abosketes paid Brantman $3,000 in cash, obtaining therefor a receipt in which Brantman stated the money was being páid on account of services. Brant-man never rendered any service to Abosketes. Several weeks later Brantman called upon Abosketes at Milwaukee and informed Abosketes that every thing was stopped and under control. The record discloses that the $3,000 was delivered to Kretske. The record further discloses that on September 30, 1938, Alexander Campbell, an assistant United States Attorney for the Northern District of Indiana, while at his office, at ten o’clock in the evening, in the Federal Building at Fort Wayne, Indiana, was visited by appellant Roth, who inquired whether the Wroblewski brothers had been indicted. He was told by Campbell that because of the absence of his filing clerk he was unable to give Roth the information he desired, but that he would have the files examined the next morning and inform Roth. Roth left the office and Campbell continued with his work for about 15 minutes. After Campbell left his office that evening he met Roth who stated: “Mr. Campbell, if you find, when you check the records that the Wroblewskis are not indicted, and that their case has not been presented to the Federal Grand Jury, isn’t there some way that some arrangement can be made so that they will not be indicted? * * * I know all about Grand Juries. I know how they work. * * * Suppose I raise my fee $500 or $1000 and give it to you to handle this case.” Upon being told “that is not the way we operate in the Northern District of Indiana”, Roth replied: “Well, that is the way we handle cases in Chicago sometimes.” William and Edward Wroblewski were indicted and convicted on a conspiracy to violate the internal revenue laws of the United States and their conviction was affirmed, United States v. Wroblewski, 7 Cir., 105 F.2d 444. Roth represented the defendant in that case. On July 10, 1939, Roth and Kretske called at Campbell’s office and Roth inquired, not however in the presence of Kretske, if Campbell knew Investigator Bailey and then said: “Well, Bailey is conducting some sort of investigation in Chicago, he is trying to involve a lot of Chicago people, he is trying to involve certain lawyers in Chicago, * * . Can’t you pull Bailey off? * * I don’t want to get mixed up in this investigation, * * . It will be a mess, * The appellants denied all of the incriminating evidence and each adduced testimony that his reputation as a law abiding citizen was good. In addition, Glasser presented the testimony of several of the Judges of the District Court, who testified to specific acts of and conversations with Glasser and "representatives of the Alcohol Tax Unit and stated that so ■far as they could observe he rendered the Government conscientious service. It is upon this state of the record that we are asked to hold that there was not sufficient evidence to support the verdict. In considering this contention of the appellants it is well to remember that in passing upon the sufficiency of the evidence, we cannot weigh or determine the credibility of witnesses. We must take that view of the evidence less favorable to the party against whom the verdict is given and sustain the verdict if there be substantial evidence to support it. A conspiracy is an offense which is usually established by a great number of apparently disconnected circumstances which, when taken together, throw light on whether the accused have an understanding or are in common agreement. The agreement need not be in any particular form. It is sufficient that the minds of the parties met understandingly. A mutual implied understanding is sufficient so far as the combination or confederacy is concerned. The agreement is generally a matter of inference, deduced from the acts of the persons accused, which are done in pursuance of an apparent criminal purpose, that is to say, it is not necessary that the participation of the accused be shown by direct evidence. The connection may be inferred from such facts and circumstances in evidence as legitimately tend to sustain that inference. This is so because it is rarely capable of proof by direct evidence. In our case it was the province of the jury to consider the following noteworthy and expressive circumstances and the reasonable inferences that follow therefrom: (1) The relations existing between Glasser and Kretske while employed as Assistant United States District Attorneys and after Kretske’s separation from the service. (2) The relations between Kretske and Roth and Roth’s employment in liquor violations upon- Kretske’s recommendation. (3) The relations • between Glasser, Kretske, Horton and Kaplan. (4) The knowledge that Horton had concerning the proposed indictment of Swanson and Del Rocco; the payment of $500 to Horton; and the failure to indict Swanson and Del Rocco. (5) The meeting of Kretske at Hodorowicz’s store; the recommendation of Roth as attorney to defend; the payment of currency to Kretske; the statement of Kretske “not to worry everything will be taken care of;” Glasser to receive part of the money; and the striking of the indictment. (6) The payment of $800 by Frank Hodorowicz to Kretske to be delivered to Red; Kretske’s statement “Everything is taken care of for to-morrow morning;” .and the discharge of the violators the next morning. (7) The indictment of Dowiat, Frank and Peter Hodorowicz; the retaining of Roth to defend; and his discharge after Hodorowicz was told by Glasser that “all the money in the world could do him no good this time.” (8) The relations between Raubunas and Kaplan and between Kaplan, Kretske and Glasser. (9) Glasser’s conduct and actions relative to Raubunas, Kaplan and Dewes concerning the Western Avenue and Spring Grove stills. (10) Glasser’s actions and conduct concerning Brown and Abosketes; and the payment of $3,000 by Abosketes to Brantman and by Brantman to Kretske. (11) The conduct and statements of Roth in the Wroblewski case. True it is, that if the evidence is as consistent with the innocence of the appellants as with their guilt, no conviction can be had. It is equally true that overt acts of the parties may be considered with other evidence and attending circumstances in determining whether a conspiracy exists. Where the overt acts are of a character that are usually, if not necessarily, done pursuant to a previous scheme and plan, proofs of the acts has a tendency to show such pre-existing conspiracy, so that when proven they may be considered as evidence of the conspiracy charged, and if the established facts and inescapable inferences are inconsistent with the accused’s professions of innocence, it becomes the problem of the jury to weigh the evidence and determine, under proper instructions dealing with the quantum of proof necessary to convict, the guilt or innocence of the accused. And so in this case it was proper for the jury to consider all of the evidence and from all the facts and circumstances including those above enumerated to determine what witnesses it believed or did not believe, and to say whether the conspiracy charged in the indictment had been established beyond a reasonable doubt. This the jury has done, rendering a verdict against the appellants. We have considered this record and are compelled to the conclusion that the verdict is supported by substantial evidence. It is next urged that the trial court erred in overruling Kretske’s motion for a continuance and in appointing Glasser’s at-, torney to represent Kretske. The record discloses that the case proceeded to trial on February 5, 1940. On November 2, 1939, attorneys Harrington and McDonnell entered their appearance as attorneys for Kretske. The case was set for trial to commence January 29, 1940. On that day Mr. Harrington appeared before the court and stated that he was engaged in a trial of a case in an Illinois State Court. The court thereupon continued the case to February 5, 1940, and stated that the cause would have to proceed to trial on that date, and that Mr. Harrington’s office would have to take care of Kretske’s defense or Kretske would have to retain other counsel. On February S, 1940, Mr. Harrington not appearing, a motion for a continuance was made and denied and Mr. McDonnell was directed to act for Kretske until Mr. Harrington’s arrival. Thereupon Kretske stated ithat he had just spoken to Mr. Stewart and if the court would appoint him, he would act as Kretske’s attorney. Glasser objected to the appointment of Mr. Stewart. Notwithstanding Glasser’s objection Mr. Stewart accepted the appointment and thereafter represented both Kretske and Glasser throughout the trial. The action of the trial court upon an application for a continuance is purely a matter of discretion, and not subject to review unless it be clearly shown that such discretion has been abused. We cannot say, under the circumstances, the trial court abused that discretion, nor can we say that the appointment of Mr. Stewart and his acceptance of the appointment as attorney for Kretske was such an error as to warrant a reversal. Appellant Roth next argues that the District Court abused its discretion in denying him a severance. In his petition for a severance Roth alleges that evidence of solicitations and promises would be introduced as well as conversations between the other defendants and various persons with which he had no connection, all of which would prejudice him before the jury. We are unable to hold that in denying a severance there was an abuse of discretion. Moreover, Roth could not successfully demand a separate trial because an unfavorable atmosphere might be created by the presence on the trial of co-defendants. McDonald v. United States, 8 Cir., 89 F.2d 128. We come next to the contention that error was committed in admitting Exhibits 81a and 113. These exhibits are reports of the Alcohol Tax Unit. Exhibit 81a pertains to Raubunas, Kaplan and others relative to the Western Avenue still and Exhibit 113 refers to the Spring Grove still. These reports contained information which the investigators obtained regarding the stills. It is said they were inadmissible because they contained hearsay information, referred to Kaplan as of Jewish descent and made mention that Kaplan and Dewes had been arrested in connection with the killing of one Tony Pinna at Kaplan’s garage. (The cross-examination of Dewes by counsel for Glasser and Kretske established the fact that a man had been killed by Dewes in protecting Kaplan from kidnappers.) In addition Glasser makes the point that Exhibit 113 was inadmissible because the Spring Grove still case was presented to the grand jury. The information concerning the nature of the violations and the names and history of the alleged violators enabled the Assistant United States Attorney in charge of the cases to have completed information concerning the conduct and history of the alleged offenders, and brought to Glasser’s attention information for him to either act or not act upon. The information contained in the reports together with Glasser’s conduct in these cases threw light upon the question whether the United States was being deprived of the honest and conscientious services of an Assistant United States Attorney. We do not think that the mere fact that the racial descent of Kaplan was mentioned in the report was prejudicial. Besides, as the record indicates, the trial court, at the time the Exhibits were received in evidence, instructed the jury that the contents of the reports were not evidence against Roth and Kretske. For these reasons we think the contention is not tenable. It is also claimed that the trial court sent to the jury Exhibits 92 and 1 IS. Counsel for appellee however say they were not sent to the jury. In the trial of the case some 230 exhibits were offered by the parties. The bill of exceptions discloses that when these exhibits were offered in evidence, objection to their introduction was made and sustained. It also discloses that immediately after the defendants rested their case, the Government offered a large number of exhibits in bulk and Question: Did the court conclude the decision was subject to judicial review? While questions of fact are subject to limited review, questions of law are subject to full review. The problem becomes determining which are clear questions of law or fact as they are often "mixed". A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_habeas	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts. UNITED STATES ex rel. HACK v. CLARK, U. S. Atty. Gen., et al. No. 9165. Circuit Court of Appeals, Seventh Circuit. Feb. 11, 1947. Harold O. Mulks, of Chicago, Ill., for appellant. J. Albert Woll, U. S. Atty., and John Peter Lulinski, Asst. U. S. Atty., both of Chicago, Ill., for appellees. Before EVANS, KEENER, and MIN-TON, Circuit Judges. MINTON, Circuit Judge. The Attorney General of the United States has ordered the relator deported to Germany as an enemy alien whose pres^ ence here is dangerous to the public peace and safety, and he is now in the custody of Andrew Jordan, District Director of the Chicago District, the United States Department of Justice, Immigration and Naturalization Service. The relator has brought a proceeding in habeas corpus to be released from said custody, in which petition it appears that he was born in Germany on November 7, 1899, that he left the port of Hamburg, Germany on December 6, 1923 and entered the port of New York on December 20, 1923, and that he has never become a naturalized citizen of the United States. The District Court has sustained the motion of the respondent Jordan to dismiss the petition for a writ of habeas corpus, and the relator has appealed. The relator alleges in his petition: 1. That he has been denied a hearing according to the principles of due process of law. 2. That the President of the United States could not delegate to the Attorney General the duty of determining, pursuant to 50 U.S.C.A. § 21, whether the relator was dangerous to the public peace and safety of the United States. 3. That hostilities having ceased between the United States and Germany and the sovereign state of Germany having been completely subjected by opposing powers, the state of Germany no longer exists to which he may be deported or of which he may claim to be a citizen, subject, or denizen. 4. That the Attorney General may not authorize citizens who are not officers of the United States to hold hearings to determine whether the relator shall, first, be confined to a detention camp, and secondly, be repatriated to the country from whence he came, the result of said hearing to be used by the Attorney General in an advisory manner. All of these questions have been answered contrary to the relator’s contentions. United States ex rel. Knauer v. Jordan, 7 Cir., 158 F.2d 337; Citizens Protective League v. Clark, App.D.C., 155 F.2d 290; United States ex rel. Schwarzkopf v. Uhl, 2 Cir., 137 F.2d 898, 900; United States ex rel. Schlueter v. Watkins, D.C., 67 F.Supp. 556, affirmed 2 Cir., 158 F.2d 853. In a proceeding of this kind but one question is open to the relator, and that is whether he is an enemy alien. United States ex rel. Schwarzkopf v. Uhl, supra. If he is, that ends the proceeding. He may not contest in the courts of the host nation when or under what circumstances he, an enemy alien, shall be ordered to depart. Whether the country from whence he came is still at war with the United States or is still in existence as a sovereign power is not for any court to say; that is a political question to be answered only by those branches of our. Government charged with the responsibility of political decisions, namely, the executive and legislative branches. Jones v. United States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691; Citizens Protective League v. Clark, supra. The District Court committed no error in dismissing the relator’s petition in habeas corpus, and the judgment is Affirmed. Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus? A. no B. yes, state habeas corpus (criminal) C. yes, federal habeas corpus (criminal) D. yes, federal habeas corpus relating to deportation Answer:
sc_issuearea	H	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. CALIFORNIA et al. v. UNITED STATES No. 77-285. Argued March 28, 1978 Decided July 3, 1978 RehNquist, J., delivered the opinion of the Court, in which BurgeR, C. J., and Stewart, BlackmtjN, Powell, and SteveNS, JJ., joined. White, J., filed a dissenting opinion, in which BrenNAN and Marshall, JJ., joined, post, p. 679. Roderick Walston, Deputy Attorney General of California, argued the cause for petitioners. With him on the briefs were Évelle J. Younger, Attorney General, R. H. Connett, Assistant Attorney General, and Richard C. Jacobs, Deputy Attorney General. Deputy Solicitor General Barnett argued the cause for the United States. With him on the brief were Solicitor General McCree, Acting Assistant Attorney General Sagalkin, Sara Sun Beale, Peter R. Steenland, and Carl Strass A brief of amici curiae urging reversal was filed by officials for their respective States as follows: Bruce E. Babbitt, Attorney General of Arizona, and Ralph E, Hunsaker; J. D. MacFarlane, Attorney General of Colorado, and David W. Robbins, Deputy Attorney General; Wayne L. Kidwell, Attorney General of Idaho; Curt T. Schneider, Attorney General of Kansas; Mike Greely, Attorney General of Montana; Paul L. Douglas, Attorney General of Nebraska, and Steven C. Smith, Assistant Attorney General; Robert List, Attorney General of Nevada, and Harry W. Swain-ston, Deputy Attorney General; Toney Anaya, Attorney General of New Mexico, and Richard A. Simms, Special Assistant Attorney General; Allen I. Olson, Attorney General of North Dakota; Larry D. Derryberry, Attorney General of Oklahoma, and Larry D. Barnett, Assistant Attorney General; James A. Redden, Attorney General of Oregon, and Al J. Laue, Solicitor General; William J. Janklow, Attorney General of South Dakota, and Warren B. Neufeld, Assistant Attorney General; John L. Hill, Attorney General of Texas; Slade Gorton, Attorney General of Washington, and Charles B. Roe, Jr., Senior Assistant Attorney General; and V. Frank Mendicino, Attorney General of Wyoming, and Jack D. Palma II, Special Assistant Attorney General. Thomas Graff and Frederic P. Sutherland filed a brief for the Environmental Defense Fund et al. as amici curiae urging reversal. Kenneth A. Kuney, John P. Fraser, and T. V. A. Dillon filed a brief for the Friant Water Users Assn, et al. as amici curiae urging affirmance. Briefs of amici curiae were filed by Robert S. Pelcyger and Robert D. Stitser for the Pyramid Lake Paiute Tribe of Indians; and by Charles J. Meyers fro se. Mr. Justice Rehnquist delivered the opinion of the Court. The United States seeks to impound 2.4 million acre-feet of water from California’s Stanislaus River as part of its Central Valley Project. The California State Water Resources Control Board ruled that the water could not be allocated to the Government under state law unless it agreed to and complied with various conditions dealing with the water’s use. The Government then sought a declaratory judgment in the District Court for the Eastern District of California to the effect that the United States can impound whatever unappropriated water is necessary for a federal reclamation project without complying with state' law. The District Court held that, as a matter of comity, the United States must apply to the State for an appropriation permit, but that the State must issue the permit without condition if there is sufficient unappropriated water. 403 F. Supp. 874 (1975). The Court of Appeals for the Ninth Circuit affirmed, but held that § 8 of the Reclamation Act of 1902, 32 Stat. 390, as codified, 43 U. S. C. §§ 372, 383, rather than comity, requires the United States to apply for the permit. 558 F. 2d 1347 (1977). We granted certiorari to review the decision of the Court of Appeals insofar as it holds that California cannot condition its allocation of water to a federal reclamation project. 434 U. S. 984 (1977). We now reverse. I Principles of comity and federalism, which the District Court and the Court of Appeals referred to and which have received considerable attention in our decisions, are as a legal matter based on the Constitution of the United States, statutes enacted by Congress, and judge-made law. But the situations invoking the application of these principles have contributed importantly to their formation. Just as it has been truly said that the life of the law is not logic but experience, see 0. Holmes, The Common Law 1 (1881), so may it be said that the life of the law is not political philosophy but experience. The very vastness of our territory as a Nation, the different times at which it was acquired and settled, and the varying physiographic and climatic regimes which obtain in its different parts have all but necessitated the recognition of legal distinctions corresponding to these differences. Those who first set foot in North America from ships sailing the tidal estuaries of Virginia did not confront the same problems as those who sailed flat boats down the Ohio River in search of new sites to farm. Those who cleared the forests in the old Northwest Territory faced totally different physiographic problems from those who built sod huts on the Great Plains. The final expansion of our Nation in the 19th century into the arid lands beyond the hundredth meridian of longitude, which had been shown on early maps as the “Great American Desert,” brought the participants in that expansion face-to face with the necessity for irrigation in a way that no previous territorial expansion had. In order to correctly ascertain the meaning of the Reclamation Act of 1902, we must recognize the obvious truth that the history of irrigation and reclamation before that date was much fresher in the minds of those then in Congress than it is to us today. “[T]he afternoón of July 23, 1847, was the true date of the beginning of modern irrigation. It was on that afternoon that the first band of Mormon pioneers built a small dam across City Creek near the present site of the Mormon Temple and diverted sufficient water to saturate some 5 acres of exceedingly dry land. Before the day was over they had planted potatoes to preserve the seed.” During the subsequent half century, irrigation expanded throughout the arid States of the West, supported usually by private enterprise or the local community. By the turn of the century, however, most of the land which could be profitably irrigated by such small-scale projects had been put to use. Pressure mounted on the Federal Government to provide the funding for the massive projects that would be needed to complete the reclamation, culminating in the Reclamation Act of 1902. The arid lands were not all susceptible of the same sort of reclamation. The climate and topography of the lands that constituted the “Great American Desert” were quite different from the climate and topography of the Pacific Coast States. As noted in both United States v. Gerlach Live Stock Co., 339 U. S. 725 (1950), and Ivanhoe Irrigation District v. McCracken, 357 U. S. 275 (1958), the latter States not only had a more pronounced seasonal variation and precipitation than the intermountain States, but the interior portions of California had climatic advantages which many of the intermountain States did not. “The prime value in our national economy of the lands of summer drought on the Pacific coast is as a source of plant products that require mild winters and long growing seasons. Citrus fruits, the less hardy deciduous fruits, fresh vegetables in winter — these are their most important contributions at present. Rainless summers make possible the inexpensive drying of fruits, which puts into the market prunes, raisins, dried peaches, and apricots. In its present relation to American economy in general, the primary technical problem of agriculture in the Pacific Coast States is to make increasingly more effective use of the mild winters and the long growing season in the face of the great obstacle presented by the rainless summers. To overcome that obstacle supplementary irrigation is necessary. Hence the key position of water in Pacific Coast agriculture.” If the term “cooperative federalism” had been in vogue in 1902, the Reclamation Act of that year would surely have qualified as a leading example of it. In that Act, Congress set forth on a massive program to construct and operate dams, reservoirs, and canals for the reclamation of the arid lands in 17 Western States. Reflective of the “cooperative federalism” which the Act embodied is § 8, whose exact meaning and scope are the critical inquiries in this case: “[N]othing in this Act shall he construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigar tion, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, that the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.” 32 Stat. 390 (emphasis added). Perhaps because of the cooperative nature of the legislation, and the fact that Congress in the Act merely authorized the expenditure of funds in States whose citizens were generally anxious to have them expended, there has not been a great deal of litigation involving the meaning of its language. Indeed, so far as we can tell, the first case to come to this Court involving the Act at all was Ickes v. Fox, 300 U. S. 82 (1937), and the first case to require construction of § 8 of the Act was United States v. Gerlach Live Stock Co., supra, decided nearly half & century after the enactment of the 1902 statute. The New Melones Dam, which this litigation concerns, is part of the California Central Valley Project, the largest reclamation project yet authorized under the 1902 Act. The Dam, which will impound 2.4 million acre-feet of water of California's Stanislaus River, has the multiple purposes of flood control, irrigation, municipal use, industrial use, power, recreation, water-quality control, and the protection of fish and wildlife. The waters of the Stanislaus River that will be impounded behind the New Melones Dam arise and flow solely in California. The United States Bureau of Reclamation, as it has with every other federal reclamation project, applied for a permit from the appropriate state agency, here the California State Water Resources Control Board, to appropriate the water that would be impounded by the Dam and later used for reclamation. After lengthy hearings, the State Board found that unappropriated water was available for the New Melones Dam during certain times of the year. Although it therefore approved the Bureau's applications, the State Board attached 25 conditions to the permit. California State Water Resources Control Board, Decision 1422 (Apr. 14, 1973). The most important conditions prohibit full impoundment until the Bureau is able to show firm commitments, or at least a specific plan, for the use of the water. The State Board concluded that without such a specific plan of beneficial use the Bureau had failed to meet the California statutory requirements for appropriation. “The limited unappropriated water resources of the State should not be committed to an applicant in the absence of a showing of his actual need for the water within a reasonable time in the future. When the evidence indicates, as it does here, that an applicant already has a right to sufficient water to meet his needs for beneficial use within the foreseeable future, rights to additional water should be withheld and that water should be reserved for other beneficial uses.” Id., at 16. II The history of the relationship between the Federal Government and the States in the reclamation of the arid lands of the Western States is both long and involved, but through it runs the consistent thread of purposeful and continued deference to state water law by Congress. The rivers, streams, and lakes of California were acquired by the United States under the 1848 Treaty of Guadalupe Hidalgo with the Republic of Mexico, 9 Stat. 922. Within a year of that treaty, the California gold rush began, and the settlers in this new land quickly realized that the riparian doctrine of water rights that had served well in the humid regions of the East would not work in the arid lands of the West. Other settlers coming into the intermountain area, the vast basin and range country which lies between the Rocky Mountains on the east and the Sierra Nevada and Cascade Ranges on the west, were forced to the same conclusion. In its place, the doctrine of prior appropriation, linked to beneficial use of the water, arose through local customs, laws, and judicial decisions. Even in this early stage of the development of Western water law, before many of the Western States had been admitted to the Union, Congress deferred to the growing local law. Thus, in Broder v. Water Co., 101 U. S. 274 (1879), the Court observed that local appropriation rights were “rights which the government had, by its conduct, recognized and encouraged and was bound to protect.” Id., at 276. In 1850, California was admitted as a State to the Union “on an equal footing with the original States in all respects whatever.” 9 Stat. 452. While § 3 of the Act admitting California to the Union specifically reserved to the United States all “public lands” within the limits of California, no provision was made for the unappropriated waters in California's streams and rivers. One school of legal commentators held the view that, under the equal-footing doctrine, the Western States, upon their admission to the Union, acquired exclusive sovereignty over the unappropriated waters in their streams. In 1903, for example, one leading expert on reclamation and water law observed that “[i]t has heretofore been assumed that the authority of each State in the disposal of the water-supply within its borders was unquestioned and supreme, and two of the States have constitutional provisions asserting absolute ownership of all water-supplies within their bounds.” E. Mead, Irrigation Institutions 372 (1903). Such commentators were not without some support from language in contemporaneous decisions of this Court. See S. Wiel, Water Nights in the Western States §§ 40-43, pp. 84t-95 (2d ed. 1908). Thus, in Kansas v. Colorado, 206 U. S. 46 (1907), the Court noted: “While arid lands are to be found mainly, if not only in the Western and newer States, yet the powers of the National Government within the limits of those States are the same (no greater and no less) than those within the limits of the original thirteen. “In the argument on the demurrer counsel for plaintiff endeavored to show that Congress had expressly imposed the common law on all this territory prior to its formation into States. . . . But when the States of Kansas and Colorado were admitted into the Union they were admitted with the full powers of local sovereignty which belonged to other States, Pollard v. Hagan, [3 How. 212]; Shively v. Bowlby, [152 U. S. 1]; Hardin v. Shedd, 190 U. S. 508, 519; and Colorado by its legislation has recognized the right of appropriating the flowing waters to the purposes of irrigation.” Id., at 92 and 95. And see United States v. Rio Grande Dam & Irrig. Co., 174 U. S. 690, 702-703, and 709 (1899). As noted earlier, reclamation of the arid lands began almost immediately upon the arrival of pioneers to the Western States. Huge sums of private money were invested in systems to transport water vast distances for mining, agriculture, and ordinary consumption. Because a very high percentage of land in the West belonged to the Federal Government, the canals and ditches that carried this water frequently crossed federal land. In 1862, Congress opened the public domain to homesteading. Homestead Act of 1862, 12 Stat. 392. And in 1866, Congress for the first time expressly opened the mineral lands of the public domain to exploration and occupation by miners. Mining Act of 1866, ch. 262, 14 Stat. 251. Because of the fear that these Acts might in some way interfere with the water rights and systems that had grown up under state and local law, Congress explicitly recognized and acknowledged the local law: “[WJhenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same.” § 9, 14 Stat. 253. The Mining Act of 1866 was not itself a grant of water rights pursuant to federal law. Instead, as this Court observed, the Act was “ ‘a voluntary recognition of a preexisting right of possession, constituting a valid claim to its continued use.’ ” United States v. Rio Grande Dam & Irrig. Co., supra, at 705. Congress intended “to recognize as valid the customary law with respect to the use of water which had grown up among the occupants of the public land under the peculiar necessities of their condition.” Basey v. Gallagher, 20 Wall. 670, 684 (1875). See Broder v. Water Co., supra, at 276; Jennison v. Kirk, 98 U. S. 453, 459-461 (1879). In 1877, Congress took its first step toward encouraging the reclamation and settlement of the public desert lands in the West and made it clear that such reclamation would generally follow state water law. In the Desert Land Act of 1877, Congress provided for the homesteading of arid public lands in larger tracts “by [the homesteader’s] conducting water upon the same, within the period of three years [after filing a declaration to do so], Provided however that the right to the use of water by the person so conducting the same . . . shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation: and all surplus water over and above such actual appropriation and use, together with the water of all, lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufactuing purposes subject to existing rights.” Ch. 107, 19 Stat. 377 (emphasis added). This Court has had an opportunity to construe the 1877 Desert Land Act before. In California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142 (1935), Mr. Justice Sutherland explained that, through this language, Congress “effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself.” Id., at 158. The nonnavigable waters thereby severed were “reserved for the use of the public under the laws of the states and territories.” Id., at 162. Congress’ purpose was not to federalize the prior-appropriation doctrine already evolving under local law. Quite the opposite: “What we hold is that following the act of 1877, if not before, all non-navigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain. For since ‘Congress cannot enforce either rule upon any state,’ Kansas v. Colorado, 206 U. S. 46, 94, the full power of choice must remain with the state. The Desert Land Act does not bind or purport to bind the states to any policy. It simply recognizes and gives sanction, in so far as the United States and its future grantees are concerned, to the state and local doctrine of appropriation, and seeks to remove what otherwise might be an impediment to its full and successful operation. See Wyoming v. Colorado, 259 U. S. 419, 465.” Id., at 163-164. See also Gutierres v. Albuquerque Land & Irrig. Co., 188 U. S. 545, 552-553 (1903); Ickes v. Fox, 300 U. S. 82, 95 (1937) ; Brush v. Commissioner, 300 U. S. 352, 367 (1937). Congress next addressed the task of reclaiming the arid lands of the West 11 years later. The opening of the arid lands to homesteading raised the specter that settlers might claim lands more suitable for reservoir sites or other irrigation works, impeding future reclamation efforts. Congress addressed this problem in the Act of Oct. 2, 1888, 25 Stat. 527, which provided: “[A] 11 the lands which may hereafter be designated or selected by such United States surveys for sites for reservoirs, ditches or canals for irrigation purposes and all the lands made susceptible of irrigation by such reservoirs, ditches or canals are from this time henceforth hereby reserved from sale as the property of the United States, and shall not be subject after the passage of this act, to entry, settlement or occupation until further provided by law.” Unfortunately, this language, which had been hastily drafted and passed, had the practical effect of reserving all of the public lands in the West from settlement. As a result, “there came a perfect storm of indignation from the people of the West, which resulted in the prompt repeal of the extraordinary [1888] provision.” 29 Cong. Rec. 1955 (1897) (statement of Cong. McRae). In the Act of Aug. 30, 1890, 26 Stat. 391, Congress repealed the 1888 provision except insofar as it reserved reservoir sites. Then, in the Act of Mar. 3, 1891, 26 Stat. 1101, as amended, 43 U. S. C. § 946, Congress provided for rights-of-way across the public lands to be used by “any canal or ditch company formed for the purpose of irrigation.” The apparent purpose of the 1890 and 1891 Acts was to reserve reservoir sites from settlement but to open them for use in reclamation projects. As before, Congress expressly indicated that the reclamation would be controlled by state water law: “[T]he right of way through the public lands and reservations of the United States is hereby granted ... for the purpose of irrigation ... , to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals . . . ; Provided, That . . . the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories.” 26 Stat. 1101 (emphasis added). The Secretary of the Interior, unfortunately, interpreted the 1890 and 1891 Acts as reserving governmentally surveyed reservoir sites from use rather than for use. Congress rectified this interpretation in the Act of Feb. 26, 1897, ch. 335, 29 Stat. 599, which provided: “[A] 11 reservoir sites reserved or to be reserved shall be open to use and occupation under the right-of-way Act of March third, eighteen hundred and ninety-one. And any State is hereby authorized to improve and occupy such reservoir sites to the same extent as an individual or private corporation, under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That the charges for water coming in whole or part from reservoir sites used or occupied under the provisions of this Act shall always be subject to the control and regulation of the respective States and Territories in which such reservoirs are in whole or part situate.” The final provision of the 1897 Act was proposed as a floor amendment by Representative, later Speaker, Cannon to expressly preserve States’ control over reclamation within their borders. It was clearly the opinion of a majority of the Congressmen who spoke on the bill, however, that such an amendment was unnecessary except out of an excess of caution. According to Congressman Lacey, Chairman of the House Committee on Public Lands and a principal sponsor of the 1897 Act, the water through which the reclamation would be accomplished “does not belong to the [Federal] Government. The reservoirs in which the water is stored belong to the Government, but the water belongs to the States and will be controlled by them. The amendment proposed by the gentleman from Illinois [Mr. Cannon] relieves this measure from all possible doubt upon that subject. I think there could be no doubt anyhow, but this amendment takes away the possibility of any question being raised as to the right of the States and Territories to regulate and control the management and the price of the water.” 29 Cong. Rec. 1952 (1897). Congressman Lacey’s statement found reflection in contemporaneous decisions of this Court holding that, with limited exceptions not relevant to reclamation, authority over intrastate waterways lies with the States. In United States v. Rio Grande Dam & Irrig. Co., for example, New Mexico’s authority to adopt a prior appropriation system of water rights for the Rio Grande River was challenged. The Court unhesitatingly held that “as to every stream within its dominion a State may change [the] common law rule and permit the appropriation of the flowing waters for such purposes as it deems wise.” 174 U. S., at 702-703. The Court noted that there are two limitations to the State’s exclusive control of its streams — reserved rights “so far at least as may be necessary for the beneficial uses of the government property,” id., at 703, and the navigation servitude. The Court, however, was careful to emphasize with respect to these limitations on the States’ power that, except where the reserved rights or navigation servitude of the United States are invoked, the State has total authority over its internal waters. “Unquestionably the State . . . has a right to appropriate its waters, and the United States may not question such appropriation, unless thereby the navigability of the '[river] be disturbed.” Id., at 709. Similarly, in Kansas v. Colorado, 206 U. S. 46 (1907), the United States claimed that it had a right in the Arkansas River superior to that of Kansas and Colorado stemming from its power “to control the whole system of the reclamation of arid lands.” The Court disagreed and held that state reclamation law must prevail. The United States, of course, could appropriate water and build projects to reclaim its own public lands. “As to those lands within the limits of the States, at least of the Western States, the National Government is the most considerable owner and has power to dispose of and make all needful rules and regulations respecting its property.” Id., at 92. But federal legislation could not “override state laws in respect to the general subject of reclamation.” Ibid. “[E]ach State has full jurisdiction over the lands within its borders, including the beds of streams and other waters.” Id., at 93. With respect to the question that had been presented in Rio Grande Dam & Irrig. Co., the Court reaffirmed that each State “may determine for itself whether the common law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters for the purposes of irrigation shall control. Congress cannot enforce either rule upon any State.” 206 U. S., at 94. Ill It is against this background that Congress passed the Reclamation Act of 1902. With the help of the 1891 and 1897 Acts, private and state reclamation projects had gone far toward reclaiming the arid lands, but massive projects were now needed to complete the goal and these were beyond the means of private companies and the States. In 1900, therefore, all of the major political parties endorsed federal funding of reclamation projects. While the Democratic Party’s platform specified none of the attributes of a federal program other than to recommend that it be “intelligent,” K. Porter & D. Johnson, National Party Platforms 115 (2d ed. 1961), the Republicans specifically recommended that the reclamation program “reserv[e] control of the distribution of water for irrigation to the respective States and territories.” Id., at 123. In his first message to Congress after assuming the Presidency, Theodore Roosevelt continued the cry for national funding of reclamation and again recommended that state law control the distribution of water. As a result of the public demand for federal reclamation funding, a bill was introduced into- the 57th Congress to use the money from the sale of public lands in the Western States to build reclamation projects in those same States. The projects would be built on federal land and the actual construction and operation of the projects would be in the hands'of the Secretary of the Interior. But the Act clearly provided that state water law would control in the appropriation and later distribution of the water. As originally introduced, § 8 of the Reclamation Act provided: “[N]othing in this act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation; but State and Territorial laws shall govern and control in the appropriation, use, and distribution of the waters rendered available by the works constructed under the provisions of this act: Provided, That the right to the use of water acquired under the provisions of this act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.” From the legislative history of the Reclamation Act of 1902, it is clear that state law was expected to control in two important respects. First, and of controlling importance to this case, the Secretary would have to appropriate, purchase, or condemn necessary water rights in strict conformity with state law. According to Representative Mondell, the principal sponsor of the reclamation bill in the House, once the Secretary determined that a reclamation project was feasible and that there was an adequate supply of water for the project, “the Secretary of the Interior would proceed to make the appropriation of the necessary water by giving the notice and complying with the forms of law of the State or Territory in which the works were located.” 35 Cong. Rec. 6678 (1902) (emphasis added). The Secretary of the Interior could not take any action in appropriating the waters of the state streams “which could not be undertaken by an individual or corporation if it were in the position of the Government as regards the ownership of its lands.” H. R. Rep. No. 794, 57th Cong., 1st Sess., 7-8 (1902). Thus, in response to the statement of an opponent to the bill that the Secretary would be allowed to condemn water even if in violation of state law, Representative Mondell briskly responded: “Whereabouts does the gentleman find any such provision as he is arguing? Whereabouts in the bill is there anything that attempts to give the Federal Government any right to condemn or to take any water right or do anything which an individual could not do? Will the gentleman point out any place or any provision for the Federal Government to do anything that I could not do if I owned the public land? “Mr. RAY of New York. Do you say there is nothing in this bill that provides for condemnation? “Mr. MONDELL. The bill provides explicitly that even an appropriation of water can not be made except under State law.” 35 Cong. Rec. 6687 (1902) (emphasis added). Second, once the waters were released from the Dam, their distribution to individual landowners would again be controlled by state law. As explained by Senator Clark of Wyoming, one of the principal supporters of the reclamation bill in the Senate, “the control of waters after leaving the reservoirs shall be vested in the States and Territories through which such waters flow.” Id., at 2222. As Senator Clark went on to explain: “[I]t is right and proper that the various States and Territories should control in the distribution. The conditions in each and every State and Territory are different. What would be applicable in one locality is totally and absolutely inapplicable in another. ... In each and every one of the States and Territories affected, after a long series of experiments, after a due consideration of conditions, there has arisen a set of men who are especially qualified to deal with local conditions. “Every one of these States and Territories has an accomplished and experienced corps of engineers who for years have devoted their energies and their learning to a solution of this problem of irrigation in their individual localities. To take from these experienced men, to take from the legislatures of the various States and Territories, the control of this question at the present time would be something little less than suicidal. They are the men qualified to deal with the question, the laws are written upon their statute books and read of all men, and in every one of these States and Territories the laws have been passed that most diligently regard the rights of the settler and of the farmer . . . .” Ibid. As Representative Sutherland, later to be a Justice of this Court, succinctly put it, “if the appropriation and use were not under the provisions of the State law the utmost confusion would prevail.” Id., at 6770. Different water rights in the same State would be governed by different laws and would frequently conflict. A principal motivating factor behind Congress’ decision to defer to state law was thus the legal confusion that would arise if federal water law and state water law reigned side by side in the same locality. Congress also intended to “folio [w] the well-established precedent in national legislation of recognizing local and State laws relative to the appropriation and distribution of water.” Id., at 6678 (Cong. Mondell). As Representative Mondell noted after reviewing the legislation discussed in Part II of this opinion: “Every act since that of April 26, 1866, has recognized local laws and customs appertaining to the appropriation and distribution of water used in irrigation, and it has been deemed wise 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_procedur	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 rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. HOBBS & COMPANY, INC. v. AMERICAN INVESTORS MANAGEMENT, INC. and Harry M. Weenig, Appellants. No. 77-1445. United States Court of Appeals, Third Circuit. Argued Jan. 9, 1978. Decided May 4, 1978. Israel Packel, John C. McNamara, Jr., Fox, Rothschild, O’Brien & Frankel, Philadelphia, Pa., for appellants. William T. Hangley, Stephen M. Foxman, Goodman & Ewing, Philadelphia, Pa., for appellee. Before ADAMS, BIGGS and WEIS, Circuit Judges. OPINION OF THE COURT BIGGS, Circuit Judge. This is an appeal, pursuant to 28 U.S.C. § 1291, from a final judgment of the United States District Court for the Eastern District of Pennsylvania, dated January 24, 1977. On December 31, 1974, appellee Hobbs & Company, Inc. (“Hobbs”) instituted suit against seventeen defendants, including appellants herein, American Investors Management, Inc. (“AIM”) and Harry M. Weenig (“Weenig”). The action arose out of Hobbs’ 1973 investment in SME Florida Partners Ltd. (“SME”), a limited partnership organized to develop condominiums in Florida and to provide tax benefits to the investing limited partners. AIM was the general partner in SME, and Weenig was a shareholder, director, and officer of AIM. Hobbs’ complaint, charging violations of federal and state securities laws as well as common law fraud, alleged that the defendants, including AIM and Weenig, used fraudulent and deceptive means to induce Hobbs to purchase a limited partnership interest in SME for $150,000, and that as a result Hobbs was entitled to recover compensatory damages in excess of $400,000 as well as punitive damages. After extensive pre-trial proceedings, a Settlement Agreement was entered into by the parties on January 6,1976. This Agreement was approved by the district court and Hobbs’ action was dismissed with prejudice. In addition to providing for cash payments to Hobbs, the Settlement Agreement contained, inter alia, the following pertinent provisions. (1) SME had invested in two development projects, “Jacaranda” and “Tamarac,” but had substantially defaulted on the principal, interest, and tax payments on both properties. Under Paragraph 6 of the Settlement Agreement, AIM, but not Weenig, agreed to “make all payments including payments of mortgage principal, interest and taxes necessary to preserve intact and keep free from any cloud on title or liability the ownership interest of SME . in . Jacaranda and Tamarac, through January 1, 1978.” (2) The limited partnership interests had been marketed as a tax shelter. Paragraph 7 of the Agreement stated that AIM and Weenig represented and guaranteed that certain tax consequences were available to the limited partnership for the years ended December 31, 1973, 1974, and 1975, and promised to prepare and file tax returns and reports necessary to secure such benefits. Upon failure of these undertakings, AIM and Weenig agreed to pay Hobbs such amount of money as would put it in the same position which would have resulted had the promised tax consequences been made available. (3) With respect to remedies in the event of default by any settling defendant, Paragraph 10 of the Agreement provided that “[u]pon the default, failure or delinquency of any defendant in making any payment of any money, in delivering or satisfying any note or in the performance of any undertaking to which such defaulting defendant has agreed, then the dismissal compromise and settlement of plaintiff’s claims against such defaulting defendant provided for in this Stipulation and Agreement shall be void and of no effect solely as to such defaulting defendant. . . .” Paragraph 10 further provided that “this Court shall retain jurisdiction of this action solely for the purpose of enforcing the undertakings contained in this Stipulation and Agreement. On May 17, 1976, Hobbs filed a motion with the district court to enforce against AIM its obligations with respect to Jacaranda, as set forth in Paragraph 6 of the Settlement Agreement, to hold AIM and Weenig in civil contempt on account of their willful breach of the Agreement, and to order AIM and Weenig to pay Hobbs’ attorneys’ fees. Hobbs contended, inter alia, that AIM had failed to make the Jacaranda payments when due and did not intend to make future payments, and that Jacaranda’s mortgagee, Gulfstream Land & Development Corp. (“Gulfstream”), had declared the mortgage in default and initiated foreclosure proceedings. According to Hobbs, the court convened a telephonic hearing by conference call on May 17, 1976, which was participated in by the court, counsel for Hobbs, Weenig, AIM (by Weenig), and various other counsel. On May 19, 1976, the court ordered AIM to pay instanter all delinquent and current installments of mortgage principal, interest, and taxes on Jacaranda and to thereafter make all such payments through January 1, 1978; enjoined AIM and Weenig, among others, from doing any act inconsistent with or interfering with the performance of the Settlement Agreement and Order; and ordered AIM and Weenig to pay Hobbs’ costs and legal expenses arising out of their refusal to perform their obligations under the Settlement Agreement and Order in an amount to be determined by the court. The court declined to find AIM or Weenig in civil contempt. In June 1976, Hobbs learned that AIM was no longer able to make the required payments on Jacaranda. In a letter to Gulfstream dated June 16, 1976, Weenig attributed AIM’s financial difficulties to the cost of legal work in connection with litigation other than with Hobbs to which AIM and Weenig were parties and to internal expenditures in the management of AIM. On June 28, 1976, Hobbs filed another motion for enforcement and for a contempt adjudication against AIM and Weenig, alleging that Weenig had violated the court’s May 19 injunction and had caused AIM to violate the Settlement Agreement and the court’s prior orders by dispersing its funds to matters other than the Jacaranda obligations. Hobbs prayed that Weenig be ordered personally to make the delinquent and current payments on Jacaranda to the extent that they were not timely made by AIM, and that AIM and Weenig be held in civil contempt. AIM and Weenig jointly responded with briefs, affidavits, and exhibits attempting to rebut Hobbs’ contention that Weenig had directed AIM’s available assets to matters other than the performance of the Settlement Agreement. According to Hobbs, a conference was held in chambers on August 9,1976, with counsel for Hobbs and counsel for AIM and Weenig present, and on September 2, 1976, evidence from both sides, including Weenig’s live testimony, was taken at a hearing on Hobbs’ motion in open court. This hearing was not transcribed. See n. 16 infra. At the hearing, avers Hobbs, the court made certain settlement recommendations and Hobbs’ motion was held in abeyance pending the parties’ attempts to work out an amicable resolution of the situation. Apparehtly, in light of the pending foreclosure proceedings on Jacaranda, the court indicated its intention to act on Hobbs’ motion if the matter was not resolved by September 16, 1976. Although the matter was not settled in accordance with the foregoing, the court took no action. On November 29, 1976, counsel for AIM and Weenig informed the court that Weenig had resigned as President and director of AIM, that AIM was without officers and directors, and that its remaining assets and affairs were being managed by Weenig Enterprises in Utah. In a word, AIM was defunct. On December 13, 1976, the district court issued an opinion and order scheduling an additional hearing on December 20, 1976. The opinion noted that Hobbs’ motions remained unresolved and that the hearing would be held to resolve all issues which had arisen as a result of the Settlement Agreement. Hobbs alleges that at the hearing it submitted that the Jacaranda payments had not been made, that the tax consequences and filings guaranteed by AIM and Weenig in Paragraph 7 of the Agreement had not come about, and that Weenig had prevented AIM from making the Jacaranda payments and had allowed AIM to use its assets to such an extent that it became incapable of making the payments on the property. On January 5, 1977, Hobbs’ counsel, apparently at the court’s suggestion, submitted a motion to reduce the Settlement Agreement to judgment against AIM and Weenig and for reimbursement of its counsel fees and expenses. The motion prayed for judgment against AIM and Weenig, jointly and severally, in the amount of $131,856.37, plus interest, as damages for the nonpayment by AIM of the Jacaranda obligations. The alleged basis of Hobbs’ damage claim was that its investment or contribution of $150,-000 to SME’s initial capitalization entitled it to a “9.375% equity interest in all assets of SME,” and thus, the danger of foreclosure of Jacaranda entitled Hobbs to damages of 9.375% of the price which SME had agreed to pay on an installment basis for that realty ($1,406,468), or $131,856.37. In addition, the motion asserted a violation by AIM and Weenig of Paragraph 7 of the Settlement Agreement (the tax consequence provision) and requested counsel fees and expenses in the amount of $4,836. In response to Hobbs’ motion, AIM and Weenig asserted their good faith efforts to preserve Jacaranda from foreclosure, denied the damage claim (specifically stating that Hobbs, “by virtue of his investment in SME, acquired no equitable or legal interest in the partnership realty and, consequently, does not have an interest in Jacaranda, that is ‘not less than $131,856.37’ as is alleged”), and denied Hobbs’ right to counsel fees and expenses as inappropriate as a matter of law. On January 24, 1977, the court, without any further hearing or proceeding and “upon consideration of plaintiff’s Motion and in consideration of the testimony and other evidence presented by the parties at the various hearings in this matter and by affidavit,” entered the requested judgment. The court ordered: “that paragraph 6 of the . . . Settlement Agreement . . . is reduced to judgment, and judgment is entered against defendants . . AIM . and . . . Weenig . . . , jointly and severally, and in favor of plaintiff Hobbs ... in the amount of $131,856.37, plus interest at six (6%) per cent per annum from January 6, 1976”; “that paragraph 7 of the Settlement Agreement is reduced to judgment, and judgment is entered against defendants AIM and Weenig, jointly and severally, thereunder”; and “that plaintiff is hereby granted judgment for its legal fees and expenses incurred in procuring enforcement of the Settlement Agreement in the amount of $4,836.” AIM and Weenig appeal from that judgment. Appellants first contend that the award of damages by the district judge in favor of Hobbs was unauthorized both at law and under the specific terms of the Settlement Agreement. Appellants acknowledge that a district court generally has jurisdiction to enforce a settlement agreement entered into under its aegis, Kelly v. Greer, 365 F.2d 669 (3d Cir. 1966), cert. denied, 385 U.S. 1035, 87 S.Ct. 772, 17 L.Ed.2d 682 (1967), and as part of its enforcement powers to award damages for breach of such an agreement, Walther & Cie v. U. S. Fidelity & Guaranty Co., 397 F.Supp. 937 (M.D.Pa. 1975). However, Paragraph 10 of the Settlement Agreement expressly provided that a default by any settling defendant would void the dismissal of the action as to that defendant, permitting plaintiff to reinstitute the litigation, with the defaulting defendant thereafter deprived of certain claims and specified defenses. Appellants thus argue that the inclusion in the Agreement of this express remedy, together with the absence of any language concerning a recovery of damages for nonperformance, precluded the court from awarding damages upon appellants’ failure to comply with the terms of the Agreement. Appellee Hobbs argues that notwithstanding the inclusion of this express remedy, a further provision of Paragraph 10, stating that “this Court shall retain jurisdiction of this action solely for the purpose of enforcing the undertakings contained in this Stipulation and Agreement,” authorized the court to award damages for breach of the settlement contract. The contentions of the parties raise a question respecting the proper construction and interpretation of the Settlement Agreement on which we decline to rule, the matter apparently never having been raised in the district court in the first instance and the present record being insufficient to determine the intent of the parties with respect to the remedies contemplated in Paragraph 10. See Aro Corporation v. Allied Witan Co., 531 F.2d 1368, 1371 n. 1 (6th Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 165, 50 L.Ed.2d 140 (1976); Florida Education Association, Inc. v. Atkinson, 481 F.2d 662, 663 (5th Cir. 1973); Lichtenstein v. Lichtenstein, 454 F.2d 69, 71 (3d Cir. 1972) and 425 F.2d 1111, 1113 n. 2 (3d Cir. 1970). However, even assuming that the district judge was not precluded by the terms of the Settlement Agreement from entertaining Hobbs’ motion for damages, remand of this case is necessary because damages should not have been awarded summarily under the circumstances here presented. Although it is well established that district courts generally have the power to enforce summarily, on motion, settlement agreements entered into with their approval, Kelly v. Greer, supra, at 671, there are instances where the facts at issue are so complex or disputed that summary enforcement of the agreement is improper. As stated by the court in Autera v. Robinson, 136 U.S.App.D.C. 216, 419 F.2d 1197 (1969): “[I]t is apparent that the summary procedure for enforcement of unperformed settlement contracts is not a panacea for the myriad types of problems that may arise. The summary procedure is admirably suited to situations where, for example, a binding settlement bargain is conceded or shown, and the excuse for nonperformance is comparatively unsubstantial. On the other hand, it is ill-suited to situations presenting complex factual issues related either to the formation or the consummation of the contract, which only testimonial exploration in a more plenary proceeding is apt to satisfactorily resolve. We commend the summary practice for use in connection with problems capable of precise resolution without attendant hazard to the interests of the parties. At the same time, it is evident that beyond that point the convenience of the summary procedure must yield to the exigencies of safeguarding all legally protected rights that are involved.” Id. at 219, 419 F.2d at 1200; see Kukla v. National Distillers Products Co., supra, at 621-22. In the instant case the district judge entered not an enforcement order but rather a judgment for unliquidated damages, and, as shown in the above portion of this opinion, the facts surrounding appellants’ alleged breach, the theory and amount of damages, and the party or parties properly liable for damages were complex and highly disputed issues. Although several conferences and at least one court hearing were convened, none of these proceedings was held subsequent to Hobbs’ motion for damages and none apparently was addressed to the issue of damages. Under these circumstances the district judge should have held a further proceeding to receive evidence from the parties bearing on the question of damages and other related issues. On the basis of the record before us, we are unable to review the remaining questions raised by appellants, viz., whether the district court erred in calculating Hobbs’ damages, in entering judgment against Weenig personally for AIM’s breach of Paragraph 6 of the Agreement, and in awarding attorneys’ fees and expenses in favor of Hobbs. The judgment recited that the district judge relied, inter alia, upon “the testimony and other evidence presented by the parties at the various hearings in this matter.” However, no records were ever taken or transcriptions made at said hearings, and the district judge made no findings of fact or conclusions of law in support of the judgment. Nor was an opinion or memorandum handed down. While neither party contests the proposition that the district judge, given the proper circumstances, had the power to “pierce the corporate veil” in holding Weenig personally liable and to award attorneys’ fees and expenses to Hobbs, we are left to speculate as to the basis of the district court’s judgment. See Kreda v. Rush, 550 F.2d 888, 890 (3d Cir. 1977); Goode v. Rizzo, 506 F.2d 542, 549 (3d Cir. 1974), reversed on other grounds, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Groh v. Brooks, 421 F.2d 589, 594-95 (3d Cir. 1970); O’Neill v. United States, 411 F.2d 139, 146 (3d Cir. 1969); Shahmoon Industries, Inc. v. Imperato, 338 F.2d 449, 452 (3d Cir. 1964). “It is necessary that a Court state its reasons for granting or denying attorneys’ fees, in order that the Court’s action can be properly reviewed on appeal.” Taylor v. Perini, 503 F.2d 899, 904 (6th Cir. 1974), vacated on other grounds, 421 U.S. 982, 95 S.Ct. 1985, 44 L.Ed.2d 474 (1975); see Goode v. Rizzo, supra, at 549; Milburn v. Huecker, 500 F.2d 1279, 1282 (6th Cir. 1974); Lee v. Southern Home Sites Corp., 429 F.2d 290, 296 (5th Cir. 1970). The same principle is applicable in order for this court to determine whether the extraordinary remedy of piercing the corporate veil was warranted on the facts of this case. Similarly, although appellee contends that the district court acted within its discretion in awarding damages based upon the value of the partnership assets, we are unable to discern the proofs or theories upon which the district court relied. Whether or not Rule 52(a), Fed.R. Civ.P., 28 U.S.C., is expressly applicable, the case at bar is one which requires findings of fact and conclusions of law in respect to the relevant issues. American Cyanamid Co. v. Sharff, 309 F.2d 790, 798 (3d Cir. 1962). The case must therefore be remanded to the district court so that the necessary findings of fact and conclusions of law may be made and the record augmented by further evidence if necessary. Accordingly, for the reasons set forth herein, the judgment of the district court will be vacated and the case will be remanded for proceedings not inconsistent with this opinion. . There is a factual dispute as to whether Weenig was the sole or the principal shareholder of AIM. The resolving of this dispute may be relevant but we cannot perceive whether it is on the present insufficient record. . Paragraph 1 of the Settlement Agreement provided that certain of the defendants, including Weenig but not AIM, were to make immediate cash payments to Hobbs aggregating 191,000. Of this amount, Weenig’s obligation was $21,000. Although the defendants, as a group, were delinquent in making these payments, Hobbs eventually received most of the cash with the aid of a court order. . The Jacaranda property had been purchased for $1,406,468. The sum of $953,962 was paid as a down payment, leaving a balance of $452,-506 payable in four equal payments of $113,-127, all of which was either delinquent on the settlement date or due before January 1, 1978. Although the payments on Tamarac were similarly in default, the partnership’s equity in Tamarac was much smaller and the property was considered less valuable than Jacaranda. Therefore, Hobbs agreed in Paragraph 6 of the Agreement that the abandonment of Tamarac, with the approval of a majority of the limited partnership interests in SME, would not be deemed a breach of the settlement agreement. In fact, Tamarac was eventually abandoned. . In a letter to Hobbs’ attorney, dated March 16, 1976, counsel for AIM and Weenig took the position that the language of Paragraph 6 of the Agreement did not accurately set forth the understanding between Hobbs and AIM. Apparently, Hobbs interpreted that provision to mean that until January 1, 1978, AIM would make all payments required under the purchase contract between SME and Gulfstream relative to the Jacaranda property. AIM’s counsel, however, interpreted Paragraph 6 to mean that AIM could use any means possible to preserve the property and that it was not strictly bound to the repayment schedule or terms set forth in the original purchase agreement. To that end, AIM, at the time the Settlement Agreement was executed and allegedly without the knowledge of Hobbs or the court, proposed to Gulfstream a plan whereby the delinquent interest would be added to the principal amount of the note and the terms and schedule of repayment would be modified. The negotiations further contemplated the delivery to Gulfstream, in escrow, of a deed in lieu of foreclosure which could be recorded in favor of Gulfstream without normal foreclosure if the partnership failed to make any payment. Hobbs contended that this plan violated Paragraph 6 of the Settlement Agreement in that it placed title to Jacaranda in immediate jeopardy and reduced the partnership’s equity in the property. In any event, as evidenced by a letter from Gulfstream to AIM and Weenig dated April 5, 1976, the negotiations failed when an initial payment from AIM was dishonored, and Gulfstream initiated foreclosure proceedings. . On June 21 23, 1976, Hobbs submitted applications and affidavits in support of the award of counsel fees and expenses in the amount of $4,836, but these were not acted upon by the court until the judgment of January 24, 1977. . This was the amount originally requested by Hobbs’ counsel subsequent to the court’s order of May 19, 1976. See note 5 supra. . In Walther & Cie v. U. S. Fidelity & Guaranty Co., supra, the court stated: “Under the general powers of the court, a settlement having taken place in a judicial proceeding, this court may direct a judgment directly in favor of one who has suffered damages as a result of a breach of the settlement agreement by a subscribing party. . . . When parties negotiate a compromise and settlement, this court has authority to see that it is carried out and to award damages for breach thereof. To hold otherwise would undermine the judicially-favored resolution of the litigation through settlement.” 397 F.Supp. at 946 (citations omitted); see Kelly v. Greer, supra, at 672. . While parties may stipulate in a settlement agreement to the entry of judgment for a sum certain upon the occurrence of a specified event, such as default, All States Investors, Inc. v. Bankers Bond Co., 343 F.2d 618 (6th Cir.), cert. denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965), no such provision was included in the present Agreement. . Noting that a judgment enforcing a settlement agreement is analogous to a “judgment by consent,” Kukla v. National Distillers Products Co., 483 F.2d 619, 621 (6th Cir. 1973), appellants argue that they never “consented” to an award of damages against them. According to appellants, the district judge should have reinstated the case for trial consistent with the terms of the Agreement. They add that if this remedy would not afford plaintiff satisfactory relief, plaintiff could sue the defaulting defendant for breach of the Settlement Agreement. See Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714, 717 (2d Cir. 1974). . Appellee relies upon American Steel Engineering Co., Inc. v. U. S. Fidelity & Guaranty Co., Civil Action No. 75-2131 (E.D.Pa. April 12, 1976), for the proposition that the inclusion of a provision in a settlement agreement giving plaintiff the right to reinstitute its action upon breach does not prohibit the court from enforcing the settlement agreement and awarding damages for its breach. However, in that case the defendant’s obligation under the agreement was to pay plaintiff certain amounts of money, and the court’s enforcement order, which found the defendant in contempt, merely compelled payment of the amount originally due. Thus, the remedy imposed in American Steel was more ir. the nature of an enforcement order than a judgment for damages. . Appellee asserts that upon breach of the Agreement, as upon breach of any contract, it had the option of affirming the contract and moving for enforcement or disaffirming the contract and suing for damages. . At oral argument counsel for Hobbs appeared to concede the validity of this proposition, but insisted that the damage award herein was not determined summarily in that it was supported by sufficient evidence properly before the court. . We note that in Walther & Cie v. U. S. Fidelity & Guaranty Co., discussed supra at note 7, the court, while broadly construing the authority of the district court to award damages for breach of a settlement agreement, awarded such damages only after evidence concerning the construction of the agreement and the measure and amount of damages had been adduced at an evidentiary hearing. 397 F.Supp. at 941. . As noted infra, no records or transcriptions of these hearings were ever made. . Although, as appellee stresses, appellants never requested an evidentiary hearing, the briefs and affidavits before the district judge clearly reflected a dispute as to appellants’ alleged breach, the measure and amount of damages, and the propriety of holding Weenig personally liable. See Appendix at A68-A145. While we do not commend appellants’ failure to request further proceedings in the district court, we think that in this case it was incumbent for the judge to develop the facts more fully before entering judgment. . Since at least one hearing was held in open court, we note that 28 U.S.C. § 753(b) requires court reporters to record verbatim “all proceedings in other [than criminal] cases had in open court unless the parties with the approval of the judge shall agree specifically to the contrary . . . .” At oral argument counsel for Hobbs explained that for reasons not necessary to state here appellants desired to conduct the proceedings off the record. Because the district judge apparently acquiesced in this request, we assume that the conditions of § 753(b) were met. The desirability of having a court reporter present and at least taking notes has been repeatedly referred to by this court. Carroll v. Frontera Compania Naviera, 390 F.2d 311, 315 (3d Cir. 1968); Jaconski v. Avisun Corporation, 359 F.2d 931, 936 (3d Cir. 1966); and United States v. Sigal, 341 F.2d 837, 846-851 (3d Cir.), cert. denied, 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965). . Although ordinarily a stockholder, director, or officer of a corporation is not personally liable for the obligations of that corporation, see, e. g., Bucks v. Buckwalter, 419 Pa. 544, 215 A.2d 625 (1966), personal liability may be imposed in exceptional circumstances, often involving bad faith, contumacious behavior, or fraud. See, e. g., Francis O. Day Co. v. Shapiro, 105 U.S.App.D.C. 392, 267 F.2d 669 (1959); Thomas v. E. C. Mutter Construction Co., 405 Pa. 509, 178 A.2d 570 (1962). . The current rule regarding the award of attorneys’ fees has been summarized as follows: “Attorneys’ fees and costs are not ordinarily recoverable and unless specifically authorized by statute are awarded only in extraordinary cases. . . Exceptions to this general rule which are rooted in the inherent equity power of the courts consist of the power to assess attorneys’ fees for the willful disobedience of a court order as part of the fine to be levied on a defendant . . . and the authority to award attorneys’ fees when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Walther & Cie v. U. S. Fidelity & Guaranty Co., supra, at 946 (citations omitted); see Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Lichtenstein v. Lichtenstein, 481 F.2d 682 (3d Cir. 1973), cert. denied, 414 U.S. 1144, 94 S.Ct. 895, 39 L.Ed.2d 98 (1974). We note that the instant Settlement Agreement was silent with respect to the matter of attorneys’ fees. . Appellee argues that the word “refusal” in the court’s Order of May 19, 1976, provides this court with.an adequate finding upon which to review the attorneys’ fee award. The Order stated: “Defendants AIM and Weenig shall pay to plaintiff iustanter, the sum to be determined by the Court as compensation for plaintiffs’ costs and legal expenses arising out of said defendants’ refusal to perform their obligations under the Settlement Agreement and the Order" (emphasis added). However, we think this an insufficient indication of the basis of the district court’s award, especially in light of the fact that on two separate occasions appellee unsuccessfully petitioned the court to find appellants “in civil contempt ... by reason of their willful breach of the Settlement Agreement." We add that in the cases cited by appellee the appellate courts were able to review specific findings of bad faith, vexatiousness, and so forth made by the district courts. . Indeed, appellee’s lengthy recitation of the numerous bases upon which the district judge could have held Weenig personally liable only amplifies the need for proper findings. . As noted above, it appears that issues concerning the amount and theory of damages were not developed in any evidentiary proceeding. There is no indication on the record that an attempt was made to apply a measure of damages such as that set forth in Walther & Cie v. U. S. Fidelity & Guaranty Co., supra, at 944, where the court, referring to the breached settlement agreement as a “contract,” stated: “The court, therefore, must apply the general rule that where a contract is breached without legal justification, the injured party is entitled to recover, absent contrary provisions in the contract, whatever damages he suffered provided: (1) they were such as would naturally and ordinarily follow from the breach; (2) they were reasonably foreseeable and within the contemplation of the parties at the time they made the contract; and (3) they can be proved with reasonable certainty.” . Rule 52(a) of the Federal Rules of Civil Procedure provides in pertinent part: “In all actions tried upon the facts without a jury .... the court shall find the facts specially and state separately its conclusions of law thereon .... Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).” Although the parties have not specifically focused upon the applicability of Rule 52 to this case, appellee, in its brief, states cursorily that findings of fact and conclusions of law by the district court were not compelled by Rule 52. However, even though appellee’s request for damages was framed in terms of a “motion,” the district court’s ruling on the motion involved the resolution of numerous factual issues. Thus, it is arguable that this was in reality an action “tried upon the facts without a jury.” See 5A J. Moore, Federal Practice U 52.08 (2d Ed. 1977); Interpace Corporation v. City of Philadelphia, 438 F.2d 401, 405 (3d Cir. 1971) (Adams, J., dissenting). 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_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. YAMAHA MOTOR CORP., U. S. A., et al. v. CALHOUN et al., individually and as administrators of the ESTATE OF CALHOUN, DECEASED No. 94-1387. Argued October 31,1995 Decided January 9, 1996 Ginsburg, J., delivered the opinion for a unanimous Court. James W. Bartlett III argued the cause for petitioners. With him on the briefs were Jonathan Dryer, William R. Hoffman, and Francis P. Manchisi. Paul A. Engelmayer argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, David V. Hutchinson, and Edward Himmelfarh. Alan B. Morrison argued the cause for respondents. With him on the brief were William J. Taylor and Timothy R. Chapin. Briefs of amici curiae urging reversal were filed for the American Steamship Owners Mutual Protection and Indemnity Association, Inc., et al. by Michael F. Sturley; for the Maritime Law Association of the United States by Warren J. Marwedel, Dennis Minichello, and Chester D. Hooper; and for the National Marine Manufacturers Association by George J. Koelzer and Joshua S. Force. Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America by Ross Diamond III and Pamela Liapakis; and for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley. Justice Ginsburg delivered the opinion of the Court. Twelve-year-old Natalie Calhoun was killed in a jet ski accident on July 6, 1989. At the time of her death, she was vacationing with family friends at a beach-front resort in Puerto Rico. Alleging that the jet ski was defectively designed or made, Natalie’s parents sought to recover from the manufacturer pursuant to state survival and wrongful-death statutes. The manufacturer contended that state remedies could not be applied because Natalie died on navigable waters; federal, judge-declared maritime law, the manufacturer urged, controlled to the exclusion of state law. Traditionally, state remedies have been applied in accident cases of this order — maritime wrongful-death cases in which no federal statute specifies the appropriate relief and the decedent was not a seaman, longshore worker, or person otherwise engaged in a maritime trade. We hold, in accord with the United States Court of Appeals for the Third Circuit, that state remedies remain applicable in such cases and have not been displaced by the federal maritime wrongful-death action recognized in Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970). I Natalie Calhoun, the 12-year-old daughter of respondents Lucien and Robin Calhoun, died in a tragic accident on July 6, 1989. On vacation with family friends at a resort hotel in Puerto Rico, Natalie had rented a “WaveJammer” jet ski manufactured by Yamaha Motor Company, Ltd., and distributed by Yamaha Motor Corporation, U. S. A. (collectively, Yamaha), the petitioners in this case. While riding the WaveJammer, Natalie slammed into a vessel anchored in the waters off the hotel frontage, and was killed. The Calhouns, individually and in their capacities as administrators of their daughter’s estate, sued Yamaha in the United States District Court for the Eastern District of Pennsylvania. Invoking Pennsylvania’s wrongful-death and survival statutes, 42 Pa. Cons. Stat. §§8301-8302 (1982 and Supp. 1995), the Calhouns asserted several bases for recovery (including negligence, strict liability, and breach of implied warranties), and sought damages for lost future earnings, loss of society, loss of support and services, and funeral expenses, as well as punitive damages. They grounded federal jurisdiction on both diversity of citizenship, 28 U. S. C. § 1332, and admiralty, 28 U. S. C. § 1333. Yamaha moved for partial summary judgment, arguing that the federal maritime wrongful-death action this Court recognized in Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970), provided the exclusive basis for recovery, displacing all remedies afforded by state law. Under Moragne, Yamaha contended, the Calhouns could recover as damages only Natalie’s funeral expenses. The District Court agreed with Yamaha that Moragne’s maritime • death action displaced state remedies; the court held, however, that loss of society and loss of support and services were compensable under Moragne. Both sides asked the District Court to present questions for immediate interlocutory appeal pursuant to 28 U. S. C. § 1292(b). The District Court granted the parties’ requests, and in its § 1292(b) certifying order stated: “Natalie Calhoun, the minor child of plaintiffs Lucien B. Calhoun and Robin L. Calhoun, who are Pennsylvania residents, was killed in an accident not far off shore in Puerto Rico, in the territorial waters of the United States. Plaintiffs have brought a diversity suit against, inter alia, defendants Yamaha Motor Corporation, U. S. A. and Yamaha Motor Co., Ltd. The counts of the complaint directed against the Yamaha defendants allege that the accident was caused by a defect or defects in a Yamaha jet ski which Natalie Calhoun had rented and was using at the time of the fatal accident. Those counts sound in negligence, in strict liability, and in implied warranties of merchantability and fitness. The district court has concluded that admiralty jurisdiction attaches to these several counts and that they constitute a federal maritime cause of action. The questions of law certified to the Court of Appeals are whether, pursuant to such a maritime cause of action, plaintiffs may seek to recover (1) damages for the loss of the society of their deceased minor child, (2) damages for the loss of their child’s future earnings, and (3) punitive damages.” App. to Pet. for Cert. A-78. Although the Court of Appeals granted the interlocutory review petition, the panel to which the appeal was assigned did not reach the questions presented in the certified order, for it determined that an anterior issue was pivotal. The District Court, as just recounted, had concluded that any damages the Calhouns might recover from Yamaha would be governed exclusively by federal maritime law. But the Third Circuit panel questioned that conclusion and inquired whether state wrongful-death and survival statutes supplied the remedial prescriptions for the Calhouns’ complaint. The appellate panel asked whether the state remedies endured or were “displaced by a federal maritime rule of decision.” 40 F. 3d 622, 624 (1994). Ultimately, the Court of Appeals ruled that state-law remedies apply in this case. Id., at 644. II In our order granting certiorari, we asked the parties to brief a preliminary question: “Under 28 U. S. C. § 1292(b), can the courts of appeals exercise jurisdiction over any question that is included within the order that contains the controlling question of law identified by the district court?” 514 U. S. 1126 (1995). The answer to that question, we are satisfied, is yes. Section 1292(b) provides, in pertinent part: “When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals . . . may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order.” (Emphasis added.) As the text of § 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court. The court of appeals may not reach beyond the certified order to address other orders made in the case. United States v. Stanley, 483 U. S. 669, 677 (1987). But the appellate court may address any issue fairly included within the certified order because “it is the order that is appealable, and not the controlling question identified by the district court.” 9 J. Moore & B. Ward, Moore’s Federal Practice ¶ 110.25[1], p. 300 (2d ed. 1995). See also 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure §3929, pp. 144-145 (1977) (“[T]he court of appeals may review the entire order, either to consider a question different than the one certified as controlling or to decide the case despite the lack of any identified controlling question.”); Note, Interlocutory Appeals in the Federal Courts Under 28 U. S. C. § 1292(b), 88 Harv. L. Rev. 607,628-629 (1975) (“scope of review [includes] all issues material to the order in question”). We therefore proceed to the issue on which certiorari was granted: Does the federal maritime claim for wrongful death recognized in Moragne supply the exclusive remedy in cases involving the deaths of nonseafarers in territorial waters? III Because this case involves a watercraft collision on navigable waters, it falls within admiralty’s domain. See Sisson v. Ruby, 497 U. S. 358, 361-367 (1990); Foremost Ins. Co. v. Richardson, 457 U. S. 668, 677 (1982). “With admiralty jurisdiction,” we have often said, “comes the application of substantive admiralty law.” East River S. S. Corp. v. Transamerica Delaval Inc., 476 U. S. 858, 864 (1986). The exercise of admiralty jurisdiction, however, “does not result in automatic displacement of state law.” Jerome B. Gru-bart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 545 (1995). Indeed, prior to Moragne, federal admiralty courts routinely applied state wrongful-death and survival statutes in maritime accident cases. The question before us is whether Moragne should be read to stop that practice. Our review of maritime wrongful-death law begins with The Harrisburg, 119 U. S. 199 (1886), where we held that the general maritime law (a species of judge-made federal common law) did not afford a cause of action for wrongful death. The Harrisburg Court said that wrongful-death actions are statutory and may not be created by judicial decree. The Court did not question the soundness of this view, or examine the historical justifications that account for it. Instead, the Court merely noted that common law in the United States, like the common law of England, did not allow recovery “for an injury which results in death,” id., at 204 (internal quotation marks omitted), and that no country had “adopted a different rule on this subject for the sea from that which it maintains on the land,” id., at 213. The Court did not consider itself free to chart a different course by crafting a judge-made wrongful-death action under our maritime law. Federal admiralty courts tempered the harshness of The Harrisburg’s rule by allowing recovery under state wrongful-death statutes. See, e. g., The Hamilton, 207 U. S. 398 (1907); The City of Norwalk, 55 F. 98 (SDNY 1893). We reaffirmed this practice in Western Fuel Co. v. Garcia, 257 U. S. 233 (1921), by holding that California’s wrongful-death statute governed a suit brought by the widow of a maritime worker killed in that State’s territorial waters. Though we had generally refused to give effect to state laws regarded as inconsonant with the substance of federal maritime law, we concluded that extending state wrongful-death statutes to fatal accidents in territorial waters was compatible with substantive maritime policies: “The subject is maritime and local in character and the specified modification of or supplement to the rule applied in admiralty courts ... will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations.” Id., at 242. On similar reasoning, we also held that state survival statutes may be applied in cases arising out of accidents in territorial waters. See Just v. Chambers, 312 U. S. 383, 391-392 (1941). State wrongful-death statutes proved an adequate supplement to federal maritime law, until a series of this Court’s decisions transformed the maritime doctrine of unseaworthiness into a strict-liability rule. Prior to 1944, unseaworthiness “was an obscure and relatively little used” liability standard, largely because “a shipowner’s duty at that time was only to use due diligence to provide a seaworthy ship.” Miles v. Apex Marine Corp., 498 U. S. 19, 25 (1990) (internal quotation marks omitted). See also Moragne, 398 U. S., at 398-399. Mahnich v. Southern S. S. Co., 321 U. S. 96 (1944), however, notably expanded a shipowner’s liability to injured seamen by imposing a nondelegable duty “to furnish a vessel and appurtenances reasonably fit for their intended use.” Mitchell v. Trawler Racer, Inc., 362 U. S. 539, 550 (1960). The duty imposed was absolute; failure to supply a safe ship resulted in liability “irrespective of fault and irrespective of the intervening negligence of crew members.” Miles, 498 U. S., at 25. The unseaworthiness doctrine thus became a “species of liability without fault,” Seas Shipping Co. v. Sieracki, 328 U. S. 85, 94 (1946), and soon eclipsed ordinary negligence as the primary basis of recovery when a seafarer was injured or killed. Miles, 498 U. S., at 25-26. The disparity between the unseaworthiness doctrine’s strict-liability standard and negligence-based state wrongful-death statutes figured prominently in our landmark Moragne decision. Petsonella Moragne, the widow of a longshore worker killed in Florida’s territorial waters, brought suit under Florida’s wrongful-death and survival statutes, alleging both negligence and unseaworthiness. The District Court dismissed the claim for wrongful death based on unseaworthiness, citing this Court’s decision in The Tungus v. Skovgaard, 358 U. S. 588 (1959). There, a sharply divided Court held that “when admiralty adopts a State’s right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached.” Id., at 592. Thus, in wrongful-death actions involving fatalities in territorial waters, state statutes provided the standard of liability as well as the remedial regime. Because the Florida Supreme Court had previously held that Florida’s wrongful-death statute did not encompass unseaworthiness as a basis of liability, the Court of Appeals affirmed the dismissal of Moragne’s unseaworthiness claim. See Moragne, 398 U. S., at 377. The Court acknowledged in Moragne that The Tungus had led to considerable uncertainty over the role state law should play in remedying deaths in territorial waters, but concluded that “the primary source of the confusion is not to be found in The Tungus, but in The Harrisburg.” 398 U. S., at 378. Upon reexamining the soundness of The Harrisburg, we decided that its holding, “somewhat dubious even when rendered, is such an unjustifiable anomaly in the present maritime law that it should no longer be followed.” 398 U. S., at 378. Accordingly, the Court overruled The Harrisburg and held that an action “lie[s] under general maritime law for death caused by violation of maritime duties.” 398 U. S., at 409. IV Yamaha argues that Moragne — despite its focus on “maritime duties” owed to maritime workers — covers the waters, creating a uniform federal maritime remedy for all deaths occurring in state territorial waters, and ousting all previously available state remedies. In Yamaha’s view, state remedies can no longer supplement general maritime law (as they routinely did before Moragne), because Moragne launched a solitary federal scheme. Yamaha’s reading of Moragne is not without force; in several contexts, we have recognized that vindication of maritime policies demanded uniform adherence to a federal rule of decision, with no leeway for variation or supplementation by state law. See, e. g., Kossick v. United Fruit Co., 365 U. S. 731, 742 (1961) (federal maritime rule validating oral contracts precluded application of state Statute of Frauds); Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 409 (1953) (admiralty’s comparative negligence rule barred application of state contributory negligence rule); Garrett v. Moore-McCormack Co., 317 U. S. 239, 248-249 (1942) (federal maritime rule allocating burden of proof displaced conflicting state rule). In addition, Yamaha correctly points out that uniformity concerns informed our decision in Moragne. The uniformity concerns that prompted us to overrule The Harrisburg, however, were of a different order than those invoked by Yamaha. Moragne did not reexamine the soundness of The Harrisburg out of concern that state monetary awards in maritime wrongful-death cases were excessive, or that variations in the remedies afforded by the States threatened to interfere with the harmonious operation of maritime law. Variations of this sort had long been' deemed compatible with federal maritime interests. See Western Fuel, 257 U. S., at 242. The uniformity concern that drove our decision in Moragne related, instead, to the availability of unseaworthiness as a basis of liability. By 1970, when Moragne was decided, claims premised on unseaworthiness had become “the principal vehicle for recovery” by'seamen and other maritime workers injured or killed in the course of their employment. Moragne, 898 U. S., at 399. But with The Harrisburg in place, troubling anomalies had developed that many times precluded the survivors of maritime workers from recovering for deaths caused by an unseaworthy vessel. The Moragne Court identified three anomalies and concluded they could no longer be tolerated. First, the Court noted that “within territorial waters, identical conduct violating federal law (here the furnishing of an unseaworthy vessel) produces liability if the victim is merely injured, but frequently not if he is killed.” 398 U. S., at 395. This occurred because in nonfatal injury cases, state substantive liability standards were superseded by federal maritime law, see Kermarec v. Compagnie Generate Transatlantique, 358 U. S. 625, 628 (1959); Pope & Talbot, 346 U. S., at 409, which provided for maritime worker recovery based on unseaworthiness. But if the same worker met death in the territorial waters of a State whose wrongful-death statute did not encompass unseaworthiness (as was the case in Moragne itself), the survivors could not proceed under that generous standard of liability. See The Tungus, 858 U. S., at 592-593. Second, we explained in Moragne that “identical breaches of the duty to provide a seaworthy ship, resulting in death, produce liability outside the three-mile limit . . . but not within the territorial waters of a State whose local statute excludes unseaworthiness claims.” 398 U. S., at 395. This occurred because survivors of a maritime worker killed on the high seas could sue for wrongful death under the Death on the High Seas Act (DOHSA), 46 U. S. C. App. § 761 et seq. (1988 ed.), which encompasses unseaworthiness as a basis of liability. Moragne, 398 U. S., at 395 (citing Kernan v. American Dredging Co., 355 U. S. 426, 430, n. 4 (1958)). Finally, we pointed out that “a true seaman [a member of a ship’s company]... is provided no remedy for death caused by unseaworthiness within territorial waters, while a longshoreman, to whom the duty of seaworthiness was extended only because he performs work traditionally done by seamen, does have such a remedy when allowed by a state statute.” 398 U. S., at 395-396. This anomaly stemmed from the Court’s rulings in Lindgren v. United States, 281 U. S. 38 (1930), and Gillespie v. United States Steel Corp., 379 U. S. 148 (1964), that the Jones Act, 46 U. S. C. App. § 688 (1988 ed.), which provides only a negligence-based claim for the wrongful death of seamen, precludes any state remedy, even one accommodating unseaworthiness. As a result, at the time Moragne was decided, the survivors of a longshore worker killed in the territorial waters of a State whose wrongful-death statute incorporated unseaworthiness could sue under that theory, but the survivors of a similarly situated seaman could not. The anomalies described in Moragne relate to ships and the workers who serve them, and to a distinctly maritime substantive concept — the unseaworthiness doctrine. The Court surely meant to “assure uniform vindication of federal policies,” 398 U. S., at 401, with respect to the matters it examined. The law as it developed under The Harrisburg had forced on the States more than they could bear — the task of “providing] the sole remedy” in cases that did not involve “traditional common-law concepts,” but “concepts peculiar to maritime law.” 398 U. S., at 401, n. 15 (internal quotation marks omitted). Discarding The Harrisburg and declaring a wrongful-death right of action under general maritime law, the Court concluded, would “remov[e] the tensions and discrepancies” occasioned by the need “to accommodate state remedial statutes to exclusively maritime substantive concepts.” 398 U. S., at 401. Moragne, in sum, centered on the extension of relief, not on the contraction of remedies. The decision recalled that “ ‘it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.’” Id., at 387 (quoting The Sea Gull, 21 F. Cas. 909, 910 (No. 12,578) (CC Md. 1865) (Chase, C. J.)). The Court tied Petsonella Moragne’s plea based on the unseaworthiness of the vessel to a federal right-of-action anchor, but notably left in place the negligence claim she had stated under Florida’s law. See 398 U. S., at 376-377. Our understanding of Moragne accords with that of the Third Circuit, which Judge Becker set out as follows: “Moragne ... showed no hostility to concurrent application of state wrongful-death statutes. Indeed, to read into Moragne the idea that it was placing a ceiling on recovery for wrongful death, rather than a floor, is somewhat ahistorical. The Moragne cause of action was in many respects a gap-filling measure to ensure that seamen (and their survivors) would all be treated alike. The ‘humane and liberal’ purpose underlying the general maritime remedy of Moragne was driven by the idea that survivors of seamen killed in state territorial waters should not have been barred from recovery simply because the tort system of the particular state in which a seaman died did not incorporate special maritime doctrines. It is difficult to see how this purpose can be taken as an intent to preclude the operation of state laws that do supply a remedy.” 40 F. 3d, at 641-642 (citation omitted). We have reasoned similarly in Sun Ship, Inc. v. Pennsylvania, 447 U. S. 715 (1980), where we held that a State may apply its workers’ compensation scheme to land-based injuries that fall within the compass of the Longshore and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq. See Sun Ship, 447 U. S., at 724 (a State’s remedial scheme might be “more generous than federal law” but nevertheless could apply because Congress indicated no concern “about a disparity between adequate federal benefits and superior state benefits”) (emphasis in original). When Congress has prescribed a comprehensive tort recovery regime to be uniformly applied, there is, we have generally recognized, no cause for enlargement of the damages statutorily provided. See Miles, 498 U. S., at 30-36 (Jones Act, rather than general maritime law, determines damages recoverable in action for wrongful death of seamen); Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 232 (1986) (DOHSA, which limits damages to pecuniary losses, may not be supplemented by nonpecuniary damages under a state wrongful-death statute); Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 624-625 (1978) (DOHSA precludes damages for loss of society under general maritime law). But Congress has not prescribed remedies for the wrongful deaths of non-seafarers in territorial waters. See Miles, 498 Ü. S., at 31. There is, however, a relevant congressional disposition. Section 7 of DOHSA states: “The provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter.” 46 U. S. C. App. § 767. This statement, by its terms, simply stops DOHSA from displacing state law in territorial waters. See Miles, 498 U. S., at 25; Tallentire, All U. S., at 224-225; Moragne, 398 U. S., at 397-398. Taking into account what Congress sought to achieve, we preserve the application of state statutes to deaths within territorial waters. H= H= * For the reasons stated, we hold that the damages available for the jet ski death of Natalie Calhoun are properly governed by state law. The judgment of the Court of Appeals for the Third Circuit is accordingly Affirmed. The Calhouns are citizens of Pennsylvania. Yamaha Motor Corporation, U. S. A., is incorporated and has its principal place of business in California; Yamaha Motor Company, Ltd., is incorporated and has its principal place of business in Japan. By “nonseafarers,” we mean persons who are neither seamen covered by the Jones Act, 46 U. S. C. App. §688 (1988 ed.), nor longshore workers covered by the Longshore and Harbor Workers’ Compensation Act, 33 U. S. C. §901 et seq. Throughout this opinion, for economy, we use the term wrongful-death remedies or statutes to include survival statutes. Congress also mitigated the impact of The Harrisburg by enacting two statutes affording recovery for wrongful death. In 1920, Congress passed the Death on the High Seas Act (DOHSA), 46 U. S. C. App. § 761 et seq. (1988 ed.), which provides a federal claim for wrongful death occurring more than three nautical miles from the shore of any State or Territory. In that same year, Congress also passed the Jones Act, 46 U. S. C. App. § 688 (1988 ed.), which provides a wrongful-death claim to the survivors of seamen killed in the course of their employment, whether on the high seas or in territorial waters. Indeed, years before The Harrisburg, this Court rendered a pathmarking decision, Steamboat Co. v. Chase, 16 Wall. 522 (1873). In Steamboat, the Court upheld, under the “saving-to-suitors” proviso of the Judiciary Act of 1789 (surviving currently in 28 U. S. C. § 1333(1)), a state court’s application of the State’s wrongful-death statute to a fatality caused by a collision in territorial waters between defendants’ steamboat and a sailboat in which plaintiff’s decedent was passing. The Court extended the duty to provide a seaworthy ship, once owed only to seamen, to longshore workers in Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946). Congress effectively overruled this extension in its 1972 amendments to the Longshore and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq. See § 905(b). We have thus far declined to extend the duty further. See Kermarec v. Compagnie Generate Transatlantique, 358 U. S. 625, 629 (1959) (unseaworthiness doctrine inapplicable to invitee aboard vessel). If Moragne’s wrongful-death action did not extend to nonseafarers like Natalie, one could hardly argue that Moragne displaced the state-law remedies the Calhouns seek. Lower courts have held that Moragne’s wrongful-death action extends to nonseafarers. See, e. g., Sutton v. Earles, 26 F. 3d 903 (CA9 1994) (recreational boater); Wahlstrom v. Kawasaki Heavy Industries, Ltd., 4 F. 3d 1084 (CA2 1993) (jet skier), cert. denied, 510 U. S. 1114 (1994). We assume, for purposes of this decision, the correctness of that position. Similarly, as in prior encounters, we assume without deciding that Moragne also provides a survival action. See Miles v. Apex Marine Corp., 498 U. S. 19, 34 (1990). The question we confront is not what Moragne added to the remedial arsenal in maritime eases, but what, if anything, it removed from admiralty’s stock. The federal cast of admiralty law, we have observed, means that “state law must yield to the needs of a uniform federal maritime law when this Court finds inroads on a harmonious system[,] [b]ut this limitation still leaves the States a wide scope.” Romero v. International Terminal Operating Co., 358 U. S. 354, 373 (1959). Our precedent does not precisely delineate that scope. As we recently acknowledged, “[i]t would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible in our admiralty jurisprudence.” American Dredging Co. v. Miller, 510 U. S. 443, 452 (1994). We attempt no grand synthesis or reconciliation of our precedent today, but confine our inquiry to the modest question whether it was Moragne’s design to terminate recourse to state remedies when nonseafarers meet death in territorial waters. As noted earlier, unseaworthiness recovery by longshore workers was terminated by Congress in its 1972 amendments to the Longshore and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq. See § 905(b). The Court might have simply overruled The Tungus, see supra, at 209, thus permitting plaintiffs to rely on federal liability standards to obtain state wrongful-death remedies. The petitioner in Moragne, widow of a longshore worker, had urged that course when she sought certiorari. See Moragne v. States Marine Lines, Inc., 398 U. S. 375, 378, n. 1 (1970). But training Moragne solely on The Tungus would have left untouched the survivors of seamen, who remain blocked by the Jones Act from pursuing state wrongful-death claims — whether under a theory of negligence or unseaworthiness. See Gillespie v. United States Steel Corp., 379 U. S. 148, 154-155 (1964). Thus, nothing short of a federal maritime right of action for wrongful death could have achieved uniform access by seafarers to the unseaworthiness doctrine, the Court’s driving concern in Moragne. See 398 U. S., at 396, n. 12. While unseaworthiness was the doctrine immediately at stake in Moragne, the right of action, as stated in the Court’s opinion, is “for death caused by violation of maritime duties.” Id., at 409. See East River S. S. Corp. v. Transamerica Delaval Inc., 476 U. S. 858, 865 (1986) (maritime law incorporates strict product liability); Kermarec, 358 U. S., at 630 (negligence). See also G. Gilmore & C. Black, The Law of Admiralty 368 (2d ed. 1975). Moragne was entertained by the Court of Appeals pursuant to a 28 U. S. C. § 1292(b) certification directed to the District Court’s order dismissing the unseaworthiness claim. See 398 U. S., at 376. Federal maritime law has long accommodated the States’ interest in regulating maritime affairs within their territorial waters. See, e. g., Just v. Chambers, 312 U. S. 383, 390 (1941) (“maritime law [is] not a complete and perfect system”; “a considerable body of municipal law . . . underlies ... its administration”). States have thus traditionally contributed to the provision of environmental and safety standards for maritime activities. See, e. g., Askew v. American Waterways Operators, Inc., 411 U. S. 325 (1973) (oil pollution); Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960) (air pollution); Kelly v. Washington ex rel. Foss Co., 302 U. S. 1 (1937) (safety inspection); Cooley v. Board of Ward Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party UNITED STATES of America, Plaintiff-Appellee, v. Marco Antonio RODRIGUEZ-RODRIGUEZ, Defendant-Appellant. No. 84-5035. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 7, 1984. Decided Sept. 17, 1984. Kathryn D. Freeman, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Kathryn D. Freeman, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiffappellee. Larry Ainbinder, Federal Defenders of San Diego, San Diego, Cal., for defendant-appellant. OPINION Appeal from the United States District Court for the Southern District of California. Before ELY and GOODWIN, Circuit Judges, and RYMER, District Judge. PER CURIAM. This appeal from a misdemeanor conviction (8 U.S.C. § 1325) challenges the denial of a jury trial and the failure to give Miranda warnings before asking an alien about his immigration status. We affirm. The alleged collateral consequences that may flow from future illegal behavior do not convert the border-crossing misdemeanor into a “serious offense” for which the Sixth Amendment requires a trial by jury. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). The appellant relies on United States v. Craner, 652 F.2d 23 (9th Cir.1981), for the proposition that the collateral consequences of a misdemeanor conviction make the case a “serious offense” and therefore mandate a jury trial. The Craner court looked to state law and found that the probable loss of a driver’s license made drunk driving a “serious offense.” The Craner court also looked to state law and found that only five of the United States deny a jury trial in such cases if demanded by the defendant. We held that the administrative burden on the federal courts would not justify denial of trial by jury to those rare federal defendants who are charged with driving on federal reservations while under the influence of intoxicants. Craner does not create a per se rule that the collateral consequences of a misdemeanor conviction automatically create a constitutional right to trial by jury. We recognize the gravity of the collateral consequences of this misdemeanor conviction if Rodriguez should choose to make another illegal border crossing. But the collateral consequences of future crime are easily distinguishable from the collateral consequences in Craner which were the probable result of the charged offense. In United States v. Arbo, 691 F.2d 862 (9th Cir.1982), we held that the penalty is ordinarily the dividing line between “petty” offenses and “serious” offenses for Sixth Amendment purposes. We noted that in the absence of collateral consequences of the kind illustrated by Craner, the bright-line rule looks to the maximum authorized penalty as the guideline. See e.g., Duncan v. Louisiana, 391 U.S. 145, 160, 88 S.Ct. 1444, 1453, 20 L.Ed.2d 491 (1968). The inquiry in the San Diego railway station about immigration status did not, in the circumstances of this case, approach the level of custodial interrogation contemplated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Berkemer v. McCarty, — U.S. —, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Affirmed. The Honorable Pamela A. Rymer, United States District Judge for the Central District of California, sitting by designation. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_usc1	0	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. Larry Gene HULL, Appellee, v. Robert M. FREEMAN; Ernest D. Preate, Jr., Attorney General, Appellants. No. 90-5900. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) March 6, 1991. Decided May 10, 1991. John F. Nelson, Dist. Atty., Chambers-burg, Pa., for appellant. James V. Wade, Federal Public Defender, Harrisburg, Pa., for appellee. Before BECKER, NYGAARD and HIGGINBOTHAM, Circuit Judges. OPINION OF THE COURT BECKER, Circuit Judge. This is an appeal from an order of the district court “provisionally” granting Larry Gene Hull’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Hull is presently serving a sentence of life imprisonment for murder in the first degree, which was imposed by the Court of Common Pleas of Franklin County (Pennsylvania) following Hull’s plea of guilty in 1979. Hull filed the instant habeas petition in the United States District Court for the Middle District of Pennsylvania contending, inter alia, that he had received ineffective assistance of counsel at the July, 1979 competency hearing held prior to his plea of guilty. More specifically, he asserts that his trial attorney’s performance at the competency hearing was deficient because counsel failed to cross-examine the Commonwealth’s psychiatrist and to call witnesses on his behalf. Hull contends that as a result of- this inadequate representation, he was permitted to plead guilty to murder while in an incompetent state. On July 13, 1990, the district court filed an opinion in which it seemed to agree that Hull had received ineffective assistance of counsel during the July, 1979 competency hearing. On September 11, 1990, the court entered an order “provisionally” granting the writ and remanding the matter to the state court for the purpose of holding a hearing to re-determine Hull’s competency as of July, 1979. The District Attorney of Franklin County, representing the Commonwealth of Pennsylvania, now appeals this order. This appeal presents, as a preliminary matter, interesting questions of appellate jurisdiction, exhaustion of state remedies, and procedural default. We address the latter issue at some length because it appears that one of our important decisions in this area, Bond v. Fulcomer, 864 F.2d 306 (3d Cir.1989), has been effectively overruled by the Supreme Court’s decision in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Ultimately, we decide that these three threshold issues do not present a bar to our reaching the merits of the Commonwealth’s appeal. On the merits, the Commonwealth contends that the district court erred in holding that Hull received constitutionally ineffective assistance of counsel at the 1979 competency hearing. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance must show (1) that counsel’s performance was deficient and (2) that he or she was prejudiced by counsel’s error. The district court, however, neglected to bifurcate its Strickland discussion along these lines, somewhat obscuring its analysis. Although we are confident that the district court found that the first prong of Strickland has been met (and we endorse that conclusion), we are unsure whether the district court actually held that Hull was prejudiced by his trial counsel’s deficient performance. We think that the district court’s opinion, when read in conjunction with its accompanying orders, admits of two plausible (and legally problematic) constructions. On the one hand, the district court might have found that Hull has satisfied only the first prong of Strickland and that an evi-dentiary hearing is necessary to determine whether Hull was prejudiced by counsel’s errors — i.e., whether there is a reasonable probability that Hull would have been found incompetent at the July, 1979 competency hearing but for counsel’s deficient performance. If this interpretation is correct, however, the district court should have conducted the evidentiary hearing itself, see Keller v. Petsock, 853 F.2d 1122 (3d Cir.1988), rather than remand the matter to the state court. On the other hand, in view of the tenor of its opinion (notwithstanding the tenor of its September 11th order, which seems to cut the other way), the district court arguably found that Hull has satisfied both prongs of Strickland. If this interpretation is correct, however, the district court should have vacated Hull’s guilty plea, rather than order a hearing to determine Hull’s competency as of July 1979. Because we are unsure of the legal significance of the district court’s decision, we will vacate the order of the district court and remand this case for clarification and further proceedings. I. FACTS AND PROCEDURAL HISTORY Hull was charged in 1975 with the murder of Lloyd Shatzer. At a preliminary hearing held on March 7, 1975, the Franklin County Court of Common Pleas found Hull incompetent to stand trial and committed him to Farview State Hospital. Hull remained at Farview until another competency hearing was held on July 31, 1979. At that hearing, Dr. Harry Stamey, a psychiatrist and the Commonwealth’s only witness, testified that he believed Hull to be competent to stand trial based on his examination of Hull on April 20, 1979. Hull’s attorney neither cross-examined Dr. Stamey nor presented witnesses on Hull’s behalf, notwithstanding that two different attending psychiatrists at Farview, Dr. Kenneth De-trick and Dr. Lawrence Chang, recently had found Hull to be incompetent to stand trial. Counsel’s failure to call Dr. Detrick as a witness is particularly striking because Dr. Detrick had examined Hull on April 9, 1979, just eleven days before Dr. Stamey’s examination, and had concluded that Hull remained incompetent to stand trial. Not surprisingly, the Court of Common Pleas accepted Dr. Stamey’s unrebut-ted testimony and on July 31, 1979, determined that Hull was competent to stand trial. After Hull was found to be competent, a trial was scheduled for September 10, 1979, on the 1975 murder charge. On August 3, 1979, however, Hull entered a plea of guilty to murder generally. A degree of guilt hearing was then held on August 31, 1979, at which the Court of Common Pleas found Hull guilty of murder in the first degree and imposed a sentence of life imprisonment. After Hull’s motion to modify the sentence was denied on September 28, 1979, Hull appealed the sentencing decision of the Court of Common Pleas to the Pennsylvania Supreme Court. On September 24, 1981, the Pennsylvania Supreme Court affirmed the trial court’s judgment of sentence, 495 Pa. 644, 435 A.2d 1204. Meanwhile, Hull had begun his quest to secure collateral relief under Pennsylvania’s Post Conviction Hearing Act (“PCHA”), 42 Pa.Con.Stat.Ann. § 9541 et seq. On January 19, 1981, Hull filed a PCHA petition with the Court of Common Pleas, which the District Attorney claimed (and Hull now concedes) was premature. On July 18, 1986, after Hull’s appeal from the trial court’s judgment of sentence was rejected by the Pennsylvania Supreme Court, and his motion for modification of sentence (dated July 7, 1986) was denied as well, Hull filed an amended PCHA petition, which was ordered consolidated with his pending petition. Hull’s consolidated PCHA petition essentially raised the following four issues: (1) Whether trial counsel was ineffective for failing adequately to pursue the issue of defendant’s competency to stand trial at the proceedings held in 1979, wherein defendant was arraigned, entered a guilty plea, underwent a degree of guilt hearing and was sentenced; (2) Whether trial counsel was ineffective for failing to pursue the issues of defendant’s alleged diminished capacity through the production of expert and lay testimony; (3) Whether defendant’s rights were violated by a failure to apprise him adequately of the Miranda warnings; and (4) whether defendant’s guilty plea was coerced. After holding hearings on July 21, 1987, and on November 9, 1987, the Court of Common Pleas denied Hull’s PCHA petition, rejecting all post-conviction claims of error. Hull then appealed the trial court’s denial of his PCHA petition to the Pennsylvania Superior Court. His brief to the Superior Court, however, raised only one of the above four issues — namely, the purported ineffectiveness of trial counsel at the July, 1979 competency proceeding. On September 30, 1988, the Superior Court affirmed the trial court’s resolution of the ineffectiveness issue. Subsequently, Hull’s counsel failed to file a timely petition for allocatur with the Pennsylvania Supreme Court. Once Hull learned of his counsel’s failure to appeal, he petitioned pro se for allocatur nunc pro tunc. This petition was denied without comment by order of the Pennsylvania Supreme Court dated February 21, 1989. On May 8, 1989, Hull filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the district court for the Middle District of Pennsylvania. In his petition, Hull alleged that his trial counsel was ineffective for failing to pursue adequately the issue of his competency to stand trial in 1979. He also averred that his lawyer had neglected to press vigorously certain Miranda and coerced plea issues. Hull’s petition was referred to a United States Magistrate Judge for preliminary consideration. In a report dated December 26, 1989, the magistrate judge recommended that Hull’s habeas petition be dismissed with respect to the Miranda and coerced plea claims due to state procedural defaults — i.e., Hull’s failure to raise these claims in his PCHA appeal to the Pennsylvania Superior Court. On review, the district court adopted the magistrate judge’s recommendation regarding these two claims and remanded the case for further proceedings on the issue of whether Hull’s counsel was ineffective at the July, 1979 competency hearing (the “competency issue”). In his final report, the magistrate judge determined that Hull had exhausted his state-court remedies with respect to the competency issue. On the merits of Hull’s petition, however, the magistrate judge recommended that the writ be dismissed, concluding: Since it would appear that the testimony of Dr. Stamey, the colloquy during the August 3, 1979 hearing, and the subsequent report of Dr. Sadoff would support the superior court’s finding that petitioner was competent to stand trial, even though counsel might have launched a more searching inquiry, it does not appear that counsel was ineffective. Pursuant to Local Rule 904.2, Hull filed objections to the magistrate judge’s report with the district court. On July 13, 1990, the district judge, reviewing de novo the magistrate judge’s report, determined that Hull had received ineffective assistance of counsel at the July, 1979 competency hearing. The district court noted that Hull had been heavily medicated throughout August of 1979, the month in which Hull pleaded guilty and was sentenced to life imprisonment. In addition, the district court observed, several of Hull’s remarks during the August 3, 1979, arraignment bordered on nonsensical. Most importantly, the district court expressed utter dismay over trial counsel’s decision at the July, 1979 competency hearing to neither cross-examine the Commonwealth’s sole witness nor present any rebuttal evidence. The district court concluded that “[t]he failure of Hull’s attorney to cross examine the state’s expert or call witnesses on behalf of Hull at the competency hearing on July 31, 1979, indicates that Hull was denied a full and fair competency hearing.” The district court’s accompanying order “granted” Hull’s petition for writ of habeas corpus and required that a new evidentiary hearing be held on Hull’s competency to stand trial, but instructed the parties to attempt to agree on a proposed form of order. On September 11, 1990, the district court entered a second order (the “September 11th Order”), which “provisionally” granted Hull’s petition for writ of habeas corpus and remanded the matter to the Franklin County Court of Common Pleas for the purpose of holding a hearing to determine Hull’s competency as of July, 1979. See supra n. 1. The Commonwealth filed a timely notice of appeal from this order on September 28, 1990. II. DISCUSSION A. Appellate Jurisdiction Upon initial review of this appeal, we asked counsel to address the issue of appellate jurisdiction in light of our decisions in Marshall v. Lansing, 839 F.2d 933, 940-41 (3d Cir.1988) (order remanding to administrative agency for further litigation is not final because “in habeas proceedings, the district court has not finally disposed of a case until it either grants or denies the writ”), and United States ex rel. Fielding v. Degnan, 587 F.2d 619 (3d Cir.1978) (order granting petition for writ of habeas corpus is not final because order contemplated a subsequent hearing before the district court to determine custodial status). At that time, we were concerned that the district court’s September 11th Order might not be final. Upon further review, however, we are now confident that we do have jurisdiction to consider this 'appeal. The courts of appeals have jurisdiction over appeals from all “final decisions” of the district courts. 28 U.S.C. § 1291. Section 2253 of Title 28 of the United States Code provides, more specifically, that the “final order” in a habeas corpus proceeding is subject to review by the court of appeals for the circuit in which the proceeding took place. It is well-settled that a district court order conditionally granting a habeas corpus petition and directing the state to discharge the petitioner unless he or she is retried within a certain number of days is “final” for purposes of sections 1291 and 2253. See Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 265-66, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); United States ex rel. Thomas v. New Jersey, 472 F.2d 735, 742 (3d Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 121, 38 L.Ed.2d 123 (1973); cf. Heirens v. Mizell, 729 F.2d 449, 454 (7th Cir.) (“ ‘A final judgment in a habeas corpus case either denies the petition or orders the petitioner released at a specified time.’ ” (citation omitted)), cert. denied, 469 U.S. 842, 105 S.Ct. 147, 83 L.Ed.2d 85 (1984). The September 11th Order, which “provisionally” (or conditionally) grants Hull’s ha-beas petition, fits within the genre of orders held to be final and appealable in the above cases. It directs that, if the Court of Common Pleas ultimately finds that Hull was incompetent in July of 1979, Hull shall be released from custody unless he is retried within 120 days of the state court’s competency determination. See supra at n. 1. Although the district court’s September 11th Order remanded the case to the Court of Common Pleas for the purpose of conducting a competency hearing, it remains distinguishable from the order at issue in Fielding. The order in Fielding stated that, unless a constitutional bail was set for the petitioners by the state court prior to a certain date, petitioners should reappear in the district court on that date “at which time the terms of the enlargement shall be set.” 587 F.2d at 620. In contradistinction, the September 11th Order by its terms does not contemplate further proceedings before the district court. It is therefore quite literally the district court’s “final” order, “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). B. Exhaustion of State Remedies and Procedural Default We noted above in our recitation of the facts and procedural history that Hull, in prosecuting his PCHA petition, failed to file a timely petition for allocatur with the Pennsylvania Supreme Court. This omission, at least as an intuitive matter, prompts concerns that Hull’s federal habeas claim might be either unexhausted or procedurally waived. Neither party, however, raised these issues on appeal. In view of the interests of comity and federalism that undergird these two requirements, we nonetheless will address each of them here in order to alleviate any lingering doubt regarding the propriety of federal habeas review in this case. The exhaustion requirement is codified at 28 U.S.C. §§ 2254(b) and (e). Simply stated, these sections require a petitioner to exhaust all means of relief available under state law before filing a federal habeas petition. See Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir.), cert. denied, — U.S. -, 111 S.Ct. 46, 112 L.Ed.2d 23 (1990). The petitioner must fairly present each of his federal claims to the state courts. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). If the state courts have not had an opportunity to pass on and correct each claim of error asserted in the habeas petition, the petitioner has not complied with the exhaustion prerequisite to federal habe-as relief. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Chaussard v. Fulcomer, 816 F.2d 925 (3d Cir.), cert. denied, 484 U.S. 845, 108 S.Ct. 139, 98 L.Ed.2d 96 (1987). Without much elaboration, the magistrate judge’s report in this case, which was adopted by the district court, held that Hull had exhausted his state remedies regarding his claim of ineffective assistance of counsel at the July, 1979 competency hearing. In view of our decision in Bond v. Fulcomer, 864 F.2d 306 (3d Cir.1989), we think that the magistrate judge correctly applied the exhaustion requirement to Hull’s petition. The facts in Bond are identical to those sub judice: petitioner’s counsel had failed to file a timely petition for allocatur with the Pennsylvania Supreme Court; thus, petitioner filed a pro se petition for allowance of appeal nunc pro tunc, which was ultimately denied by the Pennsylvania Supreme Court without comment. The Bond panel held that the petitioner’s mere “presentment of an untimely petition to the state’s highest court represented] substantial compliance with the ... exhaustion requirement.” 864 F.2d at 309. Since the petitioner in Bond had clearly outlined his claim to the Pennsylvania Supreme Court (albeit in an untimely fashion) prior to filing his federal habeas petition, the panel concluded that the exhaustion requirement had been satisfied. Id. at 309-10. That Hull also complied with the exhaustion rule by filing his petition for allocatur nunc pro tunc, in our view, follows a fortiori from Bond. Although our decision in Bond obviates further exhaustion inquiry here, it suggests that there might be another problem with Hull’s petition, namely, procedural default. The doctrine of procedural default in effect makes compliance with all relevant state-law procedural rules a precondition to federal habeas relief. In generic terms, if a defendant fails to comply with a state procedural requirement, and that failure prevents the defendant from obtaining relief on a claim of trial error from state court, then federal habeas relief on that claim is also procedurally barred absent a showing of “cause” for the default and “prejudice” attributable thereto. Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). In light of the Supreme Court’s decision in Sykes, we must decide whether Hull’s failure to file a timely petition for allocatur with the Pennsylvania Supreme Court constituted an adequate and independent state procedural ground barring federal habeas review in this case. Before answering this question, however, we must determine whether the Pennsylvania Supreme Court, in dismissing Hull’s petition for allocatur nunc pro tunc, relied on procedural grounds (i.e., untimeliness) or forgave Hull’s procedural default and reached the merits of his appeal. This determination is made particularly difficult by two factors. First, the Pennsylvania Supreme Court was not precluded from reaching the merits of Hull’s PCHA petition by virtue of Hull’s failure to file a timely petition for alloca-tur. Under Pennsylvania law, a court may allow an appeal nunc pro tunc if the appellant establishes that the appeal was untimely as a result of “fraud or its equivalent, or a breakdown in the court’s operation.” See Commonwealth v. Englert, 311 Pa.Super. 78, 81, 457 A.2d 121, 123 (1983). That the Pennsylvania Supreme Court considered Hull’s appeal on the merits therefore would not necessarily be inconsistent with Hull’s contention that his appeal was untimely due to counsel’s unprofessional dilatoriness. Second, we cannot discern the Pennsylvania Supreme Court’s intention in denying Hull’s petition for allocatur nunc pro tunc because the Court did so without comment. Absent any external guideposts, we are thus left to speculate whether Hull’s petition was denied on the merits or on procedural grounds. The panel in Bond was confronted with this identical quandary. Because the Pennsylvania Supreme Court in that case also had denied the habeas petitioner’s untimely petition for allocatur without comment, the panel was unsure whether that denial reflected “a consideration and dismissal of the merits or constitute^] a dismissal on procedural grounds caused by untimeliness.” 864 F.2d at 310. Applying what it perceived as “the partiality for a finding of procedural default,” the panel ultimately concluded that the Pennsylvania Supreme Court had denied the petition for allocatur because it was untimely filed. Id. at 311. To alleviate future confusion, the panel announced a rule to be applied prospectively: To facilitate resolution of future claims presented in this procedural posture, we announce today a rule that when a nunc pro tunc allocatur petition is perfunctorily denied without discussion, when its untimeliness is apparent, and when sufficient facts to override the general disal-lowance of extended times for appeal are absent in the petition, the denial of allo-catur can be presumed to be based on a procedural default caused by its untimeliness. Id. After concluding that the Pennsylvania Supreme Court’s denial was premised on a state-law procedural default, the Bond panel declined to decide whether the “cause” and “prejudice” exception applied. Id. at 312. Because the petitioner contended that the “cause” for the procedural default was ineffective assistance of counsel, the panel opted to dismiss the habeas petition without prejudice so that the petitioner could file a state Post Conviction Relief Act (“PCRA”) petition asserting ineffective assistance of counsel for failure to file a timely petition for allocatur. Id. If this PCRA petition proved successful, the panel observed, then state precedent, see Commonwealth v. West, 334 Pa.Super. 287, 295, 482 A.2d 1339, 1343 (1984), would require the Pennsylvania Supreme Court to grant petitioner permission to appeal nunc pro tunc. 864 F.2d at 312. The panel further noted that, if the Pennsylvania Supreme Court were then to deny petitioner’s appeal on the merits, petitioner could return to district court for federal habeas review. Id. Because Bond and the case at bar are factually indistinguishable, at first blush it would appear that we are bound to follow the path of our predecessor and dismiss Hull’s petition without prejudice. See 3d Cir. IOP Chapter 9.1. However, a month after Bond was decided, the Supreme Court decided Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), which undermines the Bond panel’s treatment of the procedural default issue. We therefore think that Bond has ceased to be the law in this circuit. The Supreme Court in Harris, like the panel in Bond, was confronted with a state court order that was ambiguous insofar as it was unclear whether the court had dismissed a habeas petitioner’s appeal on procedural grounds or on the merits. The state court in Harris initially had noted that the issues on appeal were considered waived under state law. Id. at 258, 109 S.Ct. at 1040. Despite these protestations, the state court proceeded to examine the merits of the appeal. Id. In deciding whether this ambiguous invocation of a procedural default barred federal habeas review, the Supreme Court in Harris relied on the “plain statement rule” of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), expressly rejecting a putative presumption in favor of procedural bar that the Bond panel had applied. Under the “plain statement rule,” which previously had been applied in the context of direct review of state court decisions, a federal court may review a state court’s resolution of a federal question unless the state court’s opinion contains a “ ‘plain statement’ that [its] decision rests upon adequate and independent state grounds.” Long, 463 U.S. at 1042, 103 S.Ct. at 3477. Extending application of the “plain statement rule” to federal habeas cases, the Harris Court held that a petitioner’s state-law, procedural default precludes federal habeas review only if the last state court rendering a judgment in the case “clearly and expressly” states that its decision rests on a state procedural bar. 489 U.S. at 263, 109 S.Ct. at 1043. The Harris Court thus concluded that, because the state court had not explicitly relied on procedural waiver as a ground for denying petitioner’s appeal, federal habeas review was not precluded by procedural default. Id. at 266, 109 S.Ct. at 1045. The “plain statement” rule, according to Harris, applies regardless of whether the state court’s order is accompanied by an opinion or simply resolves the appeal without comment. Although the state court judgment at issue in Harris provided an explanation for the court’s decision (which ultimately was found to be ambiguous), that factor had no bearing on the Supreme Court’s application of the “plain statement” rule. Indeed, the Harris Court, in a footnote, expressly stated that its holding also applies to state court affirmances that offer no explanation: • a state court that wishes to rely on a procedural bar rule in a one-line pro for-ma order easily can write that “relief is denied for reasons of procedural default.” Of course, if the state court under state law chooses not to rely on procedural bar in such circumstances, then there is no basis for a federal habe-as court’s refusing to consider the merits of the federal claim. Id. at 265 n. 12, 109 S.Ct. at 1044-45 n, 12. Applying Harris to the instant appeal, it is irrelevant that the Pennsylvania Supreme Court denied Hull’s petition for allowance of appeal without comment. What is critical is that the Pennsylvania Supreme Court’s denial is susceptible of two interpretations: it could rest either on a state procedural bar or on the Court’s resolution of the merits of Hull’s appeal. Absent a clear and express statement that the Pennsylvania Supreme Court based its denial on a procedural default (to wit, untimeliness), we must assume that the Court denied Hull’s appeal on the merits. Accordingly, the district court was not precluded by the procedural default rule from reviewing Hull’s habeas claim that he received ineffective assistance of counsel at the July, 1979 competency hearing. C. Did Hull Receive Ineffective Assistance of Counsel at the July, 1979 Competency Hearing? We turn now to the merits. The Commonwealth in essence contends that the district court erred in determining that Hull received ineffective assistance of counsel at the July, 1979 competency hearing. Resolution of this appeal thus requires us to apply the two-part standard for ineffective assistance of counsel defined by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the question whether the representation a defendant received was constitutionally ineffective is a mixed question, of law and fact, we are “not bound by the clearly erroneous rule.” Morrison v. Kimmelman, 752 F.2d 918, 923 (3d Cir.1985), aff'd, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Instead, “we may freely review the district court’s conclusions.” Lewis v. Mazurkiewicz, 915 F.2d 106, 110 (3d Cir.1990). The first prong of the Strickland test, the performance inquiry, instructs this court to determine whether “counsel’s representation fell below an objective standard of reasonableness.” Id. 466 U.S. at 688, 104 S.Ct. at 2064. “In assessing an attorney’s performance, courts must be ‘highly deferential,’ and ‘must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance....’” United States v. Gray, 878 F.2d 702, 710 (3d Cir.1989) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). However, “[wjhere the deficiencies in counsel’s performance are severe and cannot be characterized as the product of strategic judgment,” the first prong of Strickland is clearly met. Gray, 878 F.2d at 711. If we determine that counsel’s performance was constitutionally deficient, then we must proceed to the second prong of Strickland, the prejudice inquiry. In measuring prejudice, the relevant question is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A “reasonable probability” is defined in this context as “a probability sufficient to undermine confidence in the outcome.” Id. In making this determination, a court must consider the “totality of the evidence” before the factfinder, for “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id. at 695-96, 104 S.Ct. at 2069. Although the district court in this case acknowledged that the two-part Strickland test applied, it failed to bifurcate its subsequent analysis. Rather, the court simply recounted the factors that it considered relevant to Hull’s claim of ineffective assistance and concluded that counsel’s errors had denied Hull a “full and fair competency hearing.” In reviewing the district court’s decision, we therefore are unable to ascertain whether the court held that Hull has satisfied both prongs of Strickland or just the first one. Before proceeding to the presently problematic second prong of Strickland, we note that there is no doubt that the district court actually determined that the performance prong of Strickland was met in this case. This determination, we think, is unassailable. The transcript of the July, 1979 competency hearing consists of a scant four pages. The Commonwealth presented only one witness with respect to Hull’s alleged competency, Dr. Harry Sta-mey. Dr. Stamey tesified that based on his April 20, 1979, examination of Hull, he believed Hull to be competent to stand trial. Hull’s counsel chose to leave this testimony unrebutted; he neither cross-examined Dr. Stamey nor called witnesses to testify on Hull’s behalf. Yet, at the time of the competency hearing, Hull’s counsel was well aware that two other attending psychiatrists at Farview, Dr. Lawrence Chang and Dr. Kenneth Detrick, recently had diagnosed Hull to be incompetent. Dr. Chang, based on a January 19, 1979, examination, opined that Hull’s “reasoning and judgment remain defective” and that he “remains ... incompetent to stand trial.” Dr. Detrick, who had examined Hull on April 9, 1979, just eleven days before Dr. Stamey’s examination, reported that Hull was not “appreciably different from any other examinations.” Regardless of the degree of deference accorded counsel’s performance, we cannot condone the failure of Hull’s lawyer to bring these competing diagnoses to the attention of the factfinder at the competency hearing. At the PCHA hearing before the Court of Common Pleas, Hull’s trial counsel advanced two explanations for his failure to present evidence of Hull’s incompetence. He stated that he had neither cross-examined Dr. Stamey nor presented any witnesses because: (1) he believed Hull to be competent to stand trial based on his own observations; and (2) Hull himself had expressed a desire to be found competent. Neither of these proffered explanations are legitimate strategic justifications. First of all, few lawyers possess even a rudimentary understanding of psychiatry. They therefore are wholly unqualified to judge the competency of their clients. Hull’s trial counsel had full knowledge that Drs. Chang and Detrick recently had found Hull to be incompetent to stand trial. He far exceeded the bounds of reasonable professional judgment by rejecting those psychiatric diagnoses in favor of his own untrained observations. Trial counsel’s second explanation, Hull’s professed desire to be declared competent, also can be dismissed as illegitimate. Prior to the July, 1979 competency hearing, Hull had spent the last four years at a state mental hospital after having been declared incompetent to stand trial. Hull thus remained presumptively incompetent until the Commonwealth proved otherwise. Before he could be tried for the pending murder charge, the Commonwealth bore the burden of proving by a preponderance of the evidence that he was competent to stand trial. See United States v. Digilio, 538 F.2d 972, 9 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_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. UNITED STATES of America, Appellee, v. Charles WILLIAMS, Appellant. No. 741, Docket 35582. United States Court of Appeals, Second Circuit. Argued April 29,1971. Decided April 30, 1971. Sidney G. Sparrow, Kew Gardens, N. Y. (Sparrow & Sparrow, Kew Gardens, N. Y., Gretchen White Oberman, New York City, on the brief), for appellant. Robert D. MacLachlan, Jr., Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty., for the Eastern District of New York, David G. Trager, Asst. U. S. Atty., on the brief), for appellee. Before HAYS and FEINBERG, Circuit Judges, and BLUMENFELD, District Judge. Of the District of Connecticut, sitting by designation. PER CURIAM: Charles Williams appeals from a judgment of conviction for larceny from a federally insured bank, 18 U.S.C. § 2113(b), entered in the United States District Court for the Eastern District of New York, after a trial before a jury and Chief Judge Jacob Mishler. Williams argues on appeal that (1) the district court erred in refusing to suppress his oral statement to an FBI agent; and (2) under 18 U.S.C. § 5032, the district court had no jurisdiction to try him as an adult. As to (1), Judge Dooling held a pre-trial hearing at which three witnesses, including defendant, testified. The judge concluded in substance that the statement was not coerced and that defendant had received Miranda warnings. We agree with the findings of the trial court in this respect and hold that no error was committed by allowing the statement in evidence. The second claim is raised for the first time on appeal, and the record before us is concededly incomplete as to whether appellant refused to consent to juvenile procedure or whether the Attorney General directed criminal prosecution. Under these circumstances, we remand this case to the district court to make findings, and receive further evidence, if necessary, on the issues raised by this argument, as to which we express no view on the merits. If, as the Government claims, appellant was properly proceeded against in a criminal prosecution, the judgment of conviction should not be disturbed, and appellant will have the right to appeal again on issue (2) above, if he so desires. If the prosecution was not properly instituted, the district court shall take whatever corrective steps it regards as appropriate. Affirmed in part; remanded in part in accordance with the above. 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_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. CONCRETE MATERIALS CORP. v. FEDERAL TRADE COMMISSION. No. 10090. United States Court of Appeals Seventh Circuit. May 25, 1951. George F. Callaghan, John J. Toohey, Chicago, Ill., for petitioner. W. T. Kelley, General Counsel, James W. Cassedy, Assoc. Gen. Counsel, and Donovan Divet, Sp. Atty., Federal Trade Commission, all of Washington, D. C., for respondent. Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges. DUFFY, Circuit Judge. Petitioner asks us to review and set aside an order of the Federal Trade Commission issued November 9, 1949, requiring that petitioner cease and desist making certain representations as to the effectiveness of its products as waterproofing agents. Petitioner manufactured and distributed in interstate commerce products known as Comeo 2, Iron Waterproofing; Comeo 4, Waterproofing Paste; and Comeo 6, Transparent Waterproofing. For the purpose of inducing the purchase of its products petitioner circulated advertising folders, pamphlets and circular letters through the mail. Typical of the statements contained therein are the .following: “You can now permanently stop all leaks and seepage in concrete, brick, stone and tile; also waterproof below water-level basements and pits under pressure. Comeo No. 2, our own waterproofing will do the job. This is a special chemical mixture of iron and other chemicals that, when mixed with water only, and brushed into the cracks of walls and floors needing repair will permanently waterproof and stop leaks under all conditions no matter how severe. “For after-construction waterproofing problems in foundations. Permanently waterproofs concrete, brick, stone and tile walls and floors from either inside or outside. For all classes of construction where a positive waterproof condition is necessary. Successful under all conditions no matter how severe.” And: “Comeo 6, Comeo Transparent Waterproofing. A transparent water repellant liquid that effectively seals and waterproofs concrete, brick, stone, stucco, plaster or masonry surfaces. Makes surface permanently nonabsorbent.” And: “Comeo 4, Comeo waterproofing paste for new construction work. Produces a close-meshed concrete that increases strength and permanently waterproofs. Makes concrete flow easily around reinforcing.” After due notice the first hearing was had in Chicago, Illinois. The two principal officers of petitioner appeared without counsel, and one of them testified. The Commission’s attorney there notified petitioner’s officers that a subsequent hearing would be held in Washington, D. C. for the purpose of receiving the testimony of three technicians of the National Bureau of Standards as to certain tests which had been made on samples of petitioner’s products. Prior to the hearing in Washington the Commission’s trial attorney on two occasions suggested to petitioner’s officers that an attorney be engaged to represent petitioner. Although timely notified of the time and place, no-one appeared for petitioner at the Washington hearing. During the course of that hearing a letter was received from petitioner requesting a postponement, but the hearing proceeded. However, a subsequent hearing was scheduled for Chicago. Petitioner appeared at the second Chicago hearing with counsel, who moved to strike certain testimony received at the Washington hearing, but did not request an opportunity to cross-examine the witnesses who testified at the Washington hearing. Petitioner then submitted the testimony of its secretary-treasurer, and also that of a chemist of a testing laboratory. The latter testified as to the qualitative and quantitative analyses of petitioner’s products, but did not testify as to the lasting qualities of the products when applied as directed. The trial examiner submitted a Recommended Decision. Thereafter the Commission filed findings of fact and conclusions of law, which were in accord with the recommendations of the trial examiner, and entered the cease and desist order. Petitioner claims that the Commission’s order is not supported by substantial evidence. Its principal contention here is that the tests conducted by the Bureau of Standards were made out of the presence of and without notice to the petitioner, and that the testimony of the Bureau of Standards technicians was largely hearsay testimony. Petitioner argues that such testimony should not have been received by the trial examiner or considered by the Commission. Petitioner also contends that because the order as entered is broad in its sweep, it offers no guide for compliance. The finding as to Comeo 2, Iron Waterproofing is Supported by substantial evidence. Cyrus Fishburn, a well qualified expert who has been with the Bureau of Standards since 1928, testified as to the results of experiments he conducted with Comeo 2. Although he applied three applications to a specimen brick wall, each in accordance with directions, nevertheless water seeped through at several points. The permeability tests given by him simulated an exposure of the wall to wind-driven rain. Fishburn testified, “The Com-eo 2 cannot be considered to be a satisfactory waterproofing for permeable brick masonry walls when applied as directed to the inside, unexposed face.” The finding as to Comeo 6, Transparent Waterproofing is not supported by evidence quite so unequivocal, as Comeo 6 was not tested. But, relying upon a previous report prepared by him, based upon tests in 1943 of another product “containing essentially the same ingredients as Comeo 6,” Fishburn testified, “The material will not waterproof highly permeable masonry surfaces,” but admitted that it would tend to seal the pores in those surfaces. He questioned the permanency of the effectiveness of the pore-sealing, stating, “It may last five or six years and be effective for that time as a pore sealer.” He laid considerable emphasis on the fact that it would not seal openings larger than the pore space. The Commission found that through the advertising statements heretofore stated as to Comeo 6, petitioner represented that its product “effectively seals and waterproofs concrete, brick, stone, stucco, plaster and masonry surfaces, and makes said surfaces upon which it is applied permanently non-absorbent to water,” and that such representations were false. Although Fishburn did not test Comeo 6, he possessed the education and practical experience which qualified him to judge the waterproofing qualities of Comeo 6 by tests which he had previously made of products of essentially the same ingredients compounded in the same proportion. Furthermore, the Commission itself has had wide experience in the masonry waterproofing industry. We conclude that substantial evidence supports the Commission’s findings as to Comeo 6. The testimony as to Comeo 4, Waterproofing Paste was given by Leonard Bean and Thomas Kelly, employees of the Bureau of Standards. Bean, a chemist, personally had not made a test of Comeo 4 but testified from the notes of a subordinate who was no longer with the Bureau and who made such a test under his direction. He limited his testimony to the «chemical analysis of the product, stating that it was a fatty acid type water repellent agent. He disclaimed qualifications to testify as to its waterproofing qualities. Kelly, a well qualified materials engineer, testified that he was familiar with the report of the Bureau of Standards prepared by his predecessor, Hornibrook, who was no longer with the Bureau. Kelly referred to Comeo 4 as a “type of waterproofing which we have tested at the Bureau of Standards.” He testified further that from his general scientific knowledge, Comeo 4 does not make concrete waterproof in the sense of a permanent condition, and that under pressure it does not have any appreciable waterproofing effect. The Horni-brook report (Exhibit 16) contained several comments which were favorable to petitioner, as follows: “These materials are generally capable of effecting small reductions in absorption by capillarity, and because of the increased workability imparted to the concrete, may indirectly contribute to the uniformity of the concrete in place (that is, result in a greater freedom from honeycomb and similar defects), and accordingly improve the, impermeability. Such improvements in impermeability and absorption as effected by the use of this material may be expected to be of reasonable permanence.” Petitioner advertised Comeo 4 for new construction work and claimed it “produces a close-meshed concrete that increases strength and permanently waterproofs. Makes concrete flow easily around reinforcing.” It is apparent that the only words subject to criticism are, “permanently waterproofs.” Petitioner objects because the Commission’s order prohibits it from advertising Comeo 4 as suitable for waterproofing without disclosing that its use will not render surfaces below grade impermeable to water under pressure. Petitioner states that it never advertised that Comeo 4 would render surfaces below grade impermeable to water under pressure. However, it did represent for new construction that Comeo 4 would permanently waterproof, and we think the Commission was justified in insisting petitioner make clear that it would not be satisfactory for that purpose for surfaces below grade subject to water under pressure. Petitioner’s contention that the Commission should not have considered any of the testimony of the technicians of the Bureau of Standards cannot be sustained. True, it is incumbent on the Commission to prove its charges by competent, relevant and substantial evidence. Carlay Co. v. Federal Trade Comm., 7 Cir., 153 F.2d 493. But administrative agencies, such as the Federal Trade Commission, have never been restricted by the rigid rules of evidence. Federal Trade Comm. v. Cement Institute et al., 333 U.S. 683, 705, 68 S.Ct. 793, 92 L.Ed. 1009. Moreover, the petitioner’s objections go largely to the weight of the evidence, and it is well established that the weight to be given is a matter for the determination of the Commission. Corn Products Refining Co. v. Federal Trade Comm., 324 U.S. 726, 65 S.Ct. 961, 89 L.Ed. 1320. Perhaps it would have been better for petitioner to have been represented by an attorney at the Washington hearing so that the witnesses from the Bureau of Standards might have been cross-examined, but it was no fault of the Commission that this was not the case. As to the scope of the cease and desist order, our consideration must be whether the Commission has made “an allowable judgment in its choice of the remedy.” Jacob Siegel Co. v. Federal Trade Comm., 327 U.S. 608, 612, 66 S.Ct. 758, 760, 90 L.Ed. 888. We think the Commission was clearly supported by substantial and adequate findings to conclude that the practices of petitioner were to the prejudice of the public and constituted unfair and deceptive acts in commerce, and that the form of the Commission’s order meets the test of an allowable judgment in the choice of the remedy. Enforcement of the cease and desist order of the Commission is ordered. . After many conferences and months of investigation, the Commission promulgated on August 31, 1946, trade practice rules for the masonry waterproofing industry. Fed.Reg., 16 Code of Federal Regulations (1949 Ed.), p. 481. Rule 2 covers “Deceptive Use of Representations ‘Waterproof,’ ‘Waterproofing,’ Etc.” Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Margaret E. ENGEBRETSON, Widow of Clifford E. Engebretson, Deceased and Gary Lynn Engebretson, Shirley Rae Engebretson and Lori Ranae Engebret-son, Minor Children of Clifford E. En-gebretson, Deceased, Plaintiffs-Appellants, v. R. C. ENOS, Deputy Commissioner of the United States Department of Labor and The Travelers Insurance Company and Midwest Dredging Company, Defendants-Appellees. No. 15358. United States Court of Appeals Seventh Circuit. March 25, 1966. Alan G. Sumberg, Rockford, 111., Donald J. Horowitz, Schroeter, Farris, Bangs & Horowitz, Seattle, Wash., for- plaintiffs-appellants. Richard E. Eagleton, U. S. Atty., Springfield, 111., Richard M. McMahon, Davenport, Iowa, Morton Hollander, Chief, Appellate Section, Dept, of Justice, Washington, D. C., for defendants-appellees The Travelers Ins. Co. and Midwest Dredging Co., Betty, Neuman, McMahon, Hellstrom & Bittner, Davenport, Iowa, of counsel. Before HASTINGS, Chief Judge, and ENOCH and EILEY, Circuit Judges. PER CURIAM. The widow and three minor children of Clifford E. Engebretson, deceased, (plaintiffs-appellants) applied for benefits under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S. C.A. § 901 et seq. The decedent died on July 26, 1963 while in the employ of Midwest Dredging Company. The liability of the employer for compensation under said Act was insured by The Travelers Insurance Company. After two hearings, R. C. Enos, Deputy Commissioner, Tenth Compensation District, Bureau of Employees’ Compensation, United States Department of Labor, filed a Compensation Order in Case No. 4281-2 (Fatal), dated December 18, 1964, rejecting the claims of plaintiffs herein. The Deputy Commissioner denied such claims on the ground “the death of the employee did not arise out of and in the course of employment.” Plaintiffs filed an action against the Deputy Commissioner, Travelers and Midwest in the United States District Court for the Southern District of Illinois, Honorable Frederick 0. Mercer, presiding chief judge. In this action, plaintiffs sought a review of the Deputy Commissioner’s decision. The case was before the district court on the record made before the administrative agency. Each of the parties moved for summary judgment in its favor. On this record, the district court found that the Deputy Commissioner’s determination was supported by substantial evidence and should be affirmed. The district court denied plaintiffs’ motion for summary judgment and allowed the motions of the Deputy Commissioner, Midwest and Travelers for summary judgment. Judgment was rendered for defendants dismissing plaintiffs’ complaint. From this adverse judgment, plaintiffs have appealed. The distinguished district chief judge filed an unreported memorandum opinion in support of the judgment rendered. Since we find ourselves in complete agreement with the views expressed therein, we adopt such memorandum as the opinion of this court. The opinion is as follows: “Clifford E, Engebretson, hereinafter referred to as the employee, died of a heart attack on July 26, 1963. Plaintiffs, who are his widow and children, filed their claim for compensation under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. 901, et seq. After a hearing upon the claim, the deputy commissioner for the 10th Compensation District of the Department of Labor denied the plaintiffs’ claim upon his finding that the death of the employee did not arise out of and in the course of his employment by the defendant, Midwest Dredging Company. Plaintiffs filed this complaint to review that decision. Each of the parties has moved for summary judgment in its favor. The cause is now before the court upon those motions. Judicial review of an award of this nature is governed by well established principles which are stated as follows. Review is upon the record made before the administrative agency, and the burden is upon the plaintiffs to show that the evidence of record does not support the decision of the deputy commissioner. Southern Stevedoring Company v. Henderson, 5 Cir., 175 F.2d 863. The findings of fact of the commissioner may not be disturbed by the court if they are supported by substantial evidence on the record considered as a whole. O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483; Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028; American Nat. Red Cross v. Hagen, 7 Cir., 327 F.2d 559. The logical inferences drawn from the evidence by the commissioner must be taken as established fact and are not reviewable judicially, O’Leary v. Brown-Pacific-Maxon, Inc. supra; Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229, even though the evidence permits conflicting inferences to be drawn. Del Vecchio v. Bowers, supra; Southern Stevedoring Co. v. Henderson, supra; Delta Stevedoring Co. v. Henderson, 5 Cir., 168 F.2d 872. On this record, if the commissioner’s finding that the employee’s death did not arise out of and in the course of his employment is supported by substantial evidence the commissioner’s decision must be sustained. The evidence presented before the commissioner is substantially free of conflict. The employee was 44 years of age at the time of his death. At that time he was an employee of the defendant, Midwest Dredging Company, working aboard a vessel upon the navigable waters of the Mississippi River. The defendant, Travelers Insurance Company, was the compensation insurance carrier for Midwest. The employee had worked for Midwest since the Fall of 1952, and he was at the time of his death superintendent of Midwest’s dredging operations involving the mentioned vessel. Although his duties were supervisory in character, the employee was a working superintendent. It was his custom and practice to work along with his crew upon any work to be done, including the performance of heavy manual labor. On July 26, 1963, the employee reported to work at approximately 6:30 a. m. The record contains no evidence relative to the duties performed by him on that day until approximately 12:00 noon. At about 12:00 noon, the employee left the work site and drove a pick up truck owned by Midwest approximately 45 miles to the City of Davenport, Iowa, where he picked up two sheets of steel which weighed approximately 500 pounds each. The sheets of steel were loaded onto the truck by a crane at Davenport at approximately 1:30 p. m. At approximately 3:00 p. m., the sheets of steel were transferred by the employee and another Midwest workman from the truck to an anchor barge for transportation from a landing to the dredge site approximately three miles downstream from the landing. A hoist aboard the barge was used to transfer the steel from the truck to the barge. At the dredge site, the steel was placed in position for the construction of a pontoon then being constructed by the crew. The positioning of the steel on the pontoon required substantial manual labor by the employee and two members of his crew in the lifting, pushing and sliding of the steel sheets into position by the use of pinch bars and hand tools. The steel plates were positioned on the pontoon prior to 3:30 p. m. When the second shift came aboard the dredge at the latter time certain members of that shift observed the employee engaged in welding steel cross bars and braces of approximately fifty pounds weight each onto the pontoon structure. By 4:00 p. m. the employee had ceased his welding operation. At that time he had coffee with certain members of the second shift and spent approximately the hour thereafter talking to the crew and instructing them as to the work to be done. At a time between 5:00 and 5:30 p. m. he boarded an outboard motor boat, powered by an eighteen horsepower Evinrude motor, for the purpose of transporting himself upstream to the landing and, ultimately, to his home. The motor was difficult to start, and the employee was required to pull the starter cord some eight to ten times before the motor started. He then left the dredge site and started his journey upstream. He was last seen alive approximately 1000 feet upstream from the dredge, seated in his boat, at which time and place he was observed to have turned and waved to the crew aboard the dredge. On July 28, 1963, the employee’s body was found floating in the river near the dredge. His boat was found approximately 2,500 feet upstream from the dredge, aground on the Illinois bank of the river, with the propeller pin sheared and the gasoline tank empty. The coroner’s physician who performed an autopsy on the body found that the employee’s death was caused by an obturator thrombosis of the left coronary artery. The physician further found that the employee was afflicted with pre-existing atherosclerosis, or hardening of the arteries, of several years duration. The employee was not under the care of a physician prior to his death and he was not known to be the victim of any cardiovascular disease or limitation. He had never made any symptomatic complaints to his family or any of his fellow employees, either on the day of his death or at any other time. Finding the evidentiary facts essentially as hereinabove summarized, the commissioner found that the employee’s death did not arise out of and in the course of his employment. I am convinced that the evidence of record substantially supports that finding. The expert testimony as to causation is essentially free from conflict as is the occurrence evidence. Dr. Hendricks, a specialist in internal medicine called as a witness by Midwest and its insurance carrier, stated that there was no causal connection between the employee’s employment activities on July 26 and his subsequent death. He testified that atherosclerosis is a gradual process which has the effect of narrowing and partially blocking the interior of the blood vessels, and that a blood vessel so affected can readily become blocked, or occluded, often times without prior symptomatic warning; that, with a blood vessel thus partially blocked, a blood clot may form very rapidly completely blocking the flow of blood therethrough; that when an occlusion occurs near the heart in a vessel which nourishes the heart death is practically instantaneous, with the mechanism of death being the involvement of the muscle controlling the heart beat causing either acute ventricular fibrillation or acute cessation of the heart; that the work which one does in his everyday activities does not hasten the atherosclerosis process; that physical activity, so long as it is not a massive effort in activities in which a person is not accustomed, would if it had any effect at all, tend to lessen the likelihood of thrombosis; that it was his opinion that the activities of the employee on the day of his death had no causal precipitating effect upon the massive heart seizure which later he suffered; that the fact that the employee had suffered the massive thrombosis immediately after completing a day’s work was wholly coincidental; and that the thrombosis could as readily have occurred at the time when it did had the employee been in bed for days and engaged in no activity whatsoever. The coroner’s physician, Dr. Martin, testified that he had conducted an exploratory examination of the chest cavity of the employee on July 28, 1963; that the employee’s lungs contained no water; that he opened all cavities of the heart and its coronary arteries and found a blood clot which totally occluded the left coronary artery near the mouth of the artery; that the left coronary artery is the most important of the two arteries feeding the heart; that death from the occlusion was inevitable and virtually instantaneous because the point of occlusion was merely centimeters removed from the mouth of the important artery involved; that it was his opinion that there was no causal connection between the fatal attack and the employee’s activities on that day, and that the attack could as readily have occurred had the employee been sleeping or otherwise inactive on that day; that such blood clots can occur in just a matter of seconds bringing certain death when lodged in the position where this clot occurred; and that the employee’s work had nothing to do with the fatal attack. Dr. Fisher, a witness for the plaintiff, testified in response to a hypothetical question that there was a possibility of a causal connection between the employee’s activities on July 26 and the subsequent heart attack, but that he could not state that there was a probability of such a causal connection between the two events. It is apparent that the commissioner had before him a body of evidence almost devoid of conflict. Even the conflict between the testimony of the several experts was more apparent than real. Though each had stated the opinion that there was no causal relationship between the work activities and the later fatal attack, both Dr. Hendricks and Dr. Martin testified on cross examination that it could not be said that there was no possibility of such a relationship between the two events. Dr. Fisher, on the other hand, stated that it was possible that a causal connection did exist, but that he could not say that there was a probability of any such causal connection. Thus, rather than there being a conflict in the expert testimony there was a difference only in the emphasis placed upon various hypotheses by the several experts. In any event, the commissioner has conclusively resolved any conflict in the evidence in his decision. One other evidentiary fact needs to be mentioned. The employee was on call 24 hours out of the day. Mrs. Engebretson testified that the hours which her husband worked varied substantially from time to time as superintendent, but that he had been working longer hours daily for a short period of time prior to his death. Plaintiffs stress that testimony as illustrative of the error of the commissioner’s decision. That emphasis is misplaced. The commissioner considered that testimony with the other evidence of record and his judgment as to the weight to be accorded thereto is conclusive. I think that both Vinson v. Einbinder, 113 U.S.App.D.C. 246, 307 F.2d 387, and Todd Shipyards Corp. v. Donovan, 5 Cir., 300 F.2d 741, are readily distinguishable from the case at bar. Both substantive and procedural distinctions are obvious so far as the latter case is concerned. Perhaps the procedural, namely, the fact that the commissioner resolved the conflicts in the evidence in favor of the employee, is the more important of the two. The employer was in the same position in which these plaintiffs now occupy, faced with the presumptive validity of the commissioner’s findings of ultimate fact. Substantively, it appears that the employee there involved suffered a heart attack while engaged in his employment, following his working for hours with a cutting torch in confined quarters, deficient in oxygen supply, on a project which involved unusually strenuous exertion on his part. In Vinson, the employee while engaged in his duties for his employer died instantly of coronary insufficiency, secondary to coronary sclerosis. At the time of his death, the employee was performing work, the performance of which frequently required the efforts of two men. Though there was some conflict in the medical testimony, that conflict really turned upon the various doctor’s opinions as to whether the work being done was unusuady strenuous, since all agreed that unusually strenuous activity could have, or probably would have, precipitated the attack. Upon the record there made, the commissioner’s finding that there was no causal relationship between the employment and the fatal attack was reversed. A distinction in the nature of the heart attacks involved must also be recognized. In fact, that distinction is pointed up by the testimony of Dr. Fisher in this record. On cross examination he described coronary insufficiency, secondary to atherosclerosis, as the condition which occurs when, from strenuous exertion or other cause, the rate of heart beat is increased, requiring an increased supply of blood to nourish the heart muscle, and the vascular artery is so restricted that the flow of blood is insufficient to supply the heart’s requirements of oxygen. A thrombosis on the other hand has no necessary relationship to physical exertion. In this case, the heart attack followed a day in which the employee had engaged for a part of his time in heavy manual labor, but that labor was not essentially different from the work which he performed daily. The heart attack followed a period of relative inactivity on his part, namely the time after approximately 4:00 p. m. The only physical exertion shown by the record during that period was the pulling of the starter cord of the motor and the exertion necessary to operate the boat while seated therein. Upon the record, I cannot conclude that there is no substantial evidence to support the commissioner’s finding. Plaintiffs’ motion for summary, judgment is denied. The motion of the deputy commissioner for summary judgment and the motion of Midwest and Travelers for summary judgment are allowed. Judgment. is ordered for the defendants dismissing plaintiffs’ complaint.” On the authority of such opinion, the judgment appealed from is in all respects affirmed. Affirmed. 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_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. In re CLERC CHEMICAL CORPORATION. Appeal of REILLY TAR & CHEMICAL CORPORATION. No. 8533. Circuit Court of Appeals, Third Circuit. Argued March 7, 1944. Decided May 1, 1944. Israel B. Greene, of Newark, N. J. (William K. Flanagan, of Newark, N. J., on the brief), for appellant. George Furst, of Newark, N. J. (William Harris, of Newark, N. J., on the brief), for Trustee. Before BIGGS, JONES, and Mc-LAUGHLIN, Circuit Judges. McLAUGHLIN, Circuit Judge. This is a bankruptcy matter involving the construction of a lease. The pertinent paragraphs of the lease are: “This Lease made this 24th day of November, 1941, between Reilly Tar & Chemical Corporation, an Indiana corporation, duly qualified to transact business in the State of New Jersey, (hereinafter called the Lessor), and Frederick D. Lo'db, trading as Purax Chemical Products Company (not incorporated) with offices located at 1265 Broadway, New York, N. Y., (hereinafter called the Lessee), Witnesseth: ” (Emphasis ours) * * * * * * “(8) Bankruptcy, etc.: If the Lessee shall be adjudicated a bankrupt, file a voluntary petition in bankruptcy, make a general assignment for the benefit of creditors, or if a receiver of its properties and assets shall be appointed, then and in that event the Lessor shall have the option to terminate this lease as of the tenth day after: (a) the appointment of a receiver, or (b) the adjudication of bankruptcy, if no receiver be appointed, or (c) the filing of a voluntary petition in bankruptcy, or (d) the general assignment for the benefit of creditors, as the case may be.” (Emphasis ours) ?{C ‡ ‡ ‡ ‡ “(10) Assignment, etc.: The Lessee shall have the right to assign this lease to any corporation, formed by him, provided, however, that in the event of such assignment the Lessee shall guarantee the rentals due hereunder. With this exception, the Lessee shall not assign, mortgage, or encumber this lease, nor sublet, nor underlet the premises nor any part thereof without the written consent of the Lessor. In case said premises shall be vacated during the term of this lease, the Lessor may take immediate possession thereof for the remainder of the term and in its discretion may relet the same and apply the proceeds in satisfaction of the rent due under this lease. The Lessee shall remain liable for any unpaid balance of such rent.” (Emphasis ours) s< ‡ ‡ sje $ “(19) Successors, etc.: The terms, covenants, conditions and agreements herein contained shall be binding upon the parties hereto and their respective successors and assigns.” On December 1, 1942 Loeb assigned the lease to Clerc Chemical Corporation. The assignment, in accordance with its terms, was “subject nevertheless to the rents, covenants, conditions and provisions therein [in the lease] also mentioned.” An involuntary petition in bankruptcy was filed against Clerc Corporation on July 22, 1943 and- thereafter that company was adjudicated a bankrupt. On August 10, 1943, Reilly Tar, the owner and lessor, served Clerc “as assignee of the lessee mentioned in the lease” with a notice of the exercising of its option to terminate the lease because of the bankruptcy. The receiver in bankruptcy of Clerc took the position that the bankruptcy of Clerc did not operate as a forfeiture of the lease; therefore, that the lease was part of the bankrupt estate and to be disposed of as such. The matter was heard by the referee who sustained the receiver. The District Court, on review, confirmed the order of the referee. This is an appeal by the owner lessor, Reilly Tar & Chemical Corporation, from the order of the District Court. Appellant contends that by virtue of Paragraph 19 of the lease, the bankruptcy forfeiture clause in Paragraph 8 is applicable to the bankrupt assignee. The difficulty with this is that Loeb is deliberately designated as the named lessee with Paragraph 8 providing for forfeiture only in the event the lessee shall be adjudicated a bankrupt. There is neither mention of nor allusion to assigns, successors or anyone else. The same centering on Loeb as the lessee persists in Paragraph 10 where he, as lessee, continues to guarantee the rentals even if he should assign the lease to a corporation, formed by him. The assignment itself expressly states not that Clerc assumes the lease but takes it “subject nevertheless to the rents, covenants, conditions and provisions” mentioned in the lease. Even the notice of the owner to repossess indicates that the latter understood the specific designation of Loeb as lessee when it refers to him as “ * * the lessee mentioned in the lease.” While perhaps the suggestion that the Bankruptcy Court as- an Equity Forum discourages forfeitures can be overstressed at times, nevertheless, where the signs point surely to the purpose of the parties and that intent is plainly directed to forfeiture only in the event of the bankruptcy of the named lessee, certainly a strained construction should not be attempted to actually encourage forfeiture in an instance where none was contemplated. In re Murray Realty Co., D.C.N.D.N.Y., 35 F.Supp. 417, 418, is very much like the case at bar. There a lessee, one Edwards, assigned his lease to a corporation. The lease provided in part: “It is further agreed that the insolvency or bankruptcy of the second party ‘[Edwards]’ or of any successor, shall at the option of the first party, ‘[the lessor]’ its successors and assigns, terminate this lease and change the second party and all persons holding under him into a tenant or tenants ‘holding over’ after the expiration of the term without consent.” The court held that the word “successor” in the above quoted lease provision did not include lessee’s assignee and, therefore, that the lease was not forfeited and was part of the bankruptcy estate. The court said page 418 of 35 F.Supp.: “The sole issue presented in this case is whether the word ‘successor’ contained in the option paragraph includes the assignee of the original tenant. In reaching a conclusion as to the construction of the word ‘successor’, it should be noted that in describing the lessor in whose favor the option exists, the phrase ‘first party, its successors and assigns’ is used. Although the testimony does not show the fact, it may be assumed that the lease was drawn by someone familiar with legal phrases and their connotation, and the failure of the draftsman to refer to ‘assigns’ with respect to the second party and the inclusion of the ‘assigns’ with respect to the first party would seem to indicate an intentional distinction between the two.” In re Larkey, D.C.N.J., 214 F. 867, which is out of the same district from which this matter comes, was also markedly similar to the present issue. There the lessees (who were alleged bankrupts) with the lessor’s consent, had sublet the premises by a separate instrument. The lease contained a provision of re-entry in the event of the lessees’ bankruptcy. The court held squarely that the leasehold was the property of the alleged bankrupt lessees. Under the particular existing circumstances the court further decided that there had been no forfeiture of the lease by the lessees. Its language on page 872 of 214 F., with respect to forfeiture is interesting: “The only conceivable benefit which a forfeiture would confer upon the landlords is that they might, if relieved of the present tenants, be able to lease their premises at a larger rental. But such a consideration should not commend itself to a court of equity.” The cases cited by the appellant are not in conflict with those above referred to. In re Lindy-Friedman Clothing Co., Inc., 5 Cir., 285 F. 22, 23, which affirmed D.C. Ala., 275 F. 453, had to do with a lease which had been assigned by the lessee to a corporation under which assignment the assignee in addition to agreeing to pay the rent due or to become due under the terms of the assigned lease “fmther assumes all other obligations of the original lease to the original lessor.” In Empress Theatre Co. v. Horton, 8 Cir., 266 F. 657, 659, the lease specifically provided in the last clause of its twelfth' paragraph that: “The bankruptcy or insolvency of the party of the second part [lessee], or other tenant who may go into possession of the premises, with the written consent of the party of the first part, shall at the option of the party of the first part, work an immediate forfeit of the lease,” etc. The court said regarding it, page 661 of 266 F.: “It clearly shows that when it was made the lessor and the lessee contemplated the possible, perhaps the probable, insolvency and bankruptcy of the lessee and of some of its successors in interest during the long 15 years then to come, discussed, carefully considered, and finally contracted and wrote into their lease their agreement what the effect of such insolvency and bankruptcy should be, to wit, the end of the term of the lease, its forfeiture, and the return to the lessor of the leased premises at its election.” In Moore v. Risley, 9 Cir., 287 F. 10, 11, three partners were the lessees. The lease contained a clause giving the lessor an option to cancel it if the lessees were adjudged bankrupts. One of the partners withdrew and assigned the lease to the other two by an assignment attached to the lease itself. Following it, and also attached to the lease, the two remaining partners signed under the language: “And in consideration of the foregoing assignment to us, we hereby agree to be bound by and comply with all of the terms and conditions of said lease.” Coming after both of the above, and also attached to the lease, appears the following signed by the lessor: “And in consideration of the foregoing promise and agreement, I consent to said assignment.” Appellant makes the further point that the bankruptcy clause in the lease runs with the land and suggests that New Jersey law is in accord with this. At the oral argument, counsel referred to Boys et al. v. Robinson et al., Sup.Ct.N.J.1897, 61 N.J.L. 179, 38 A. 813 and State (Roberts, Prosecutrix) v. McPherson, Sup.Ct.N.J. 1898, 62 N.J.L. 165, 40 A. 630 as substantiating this position. The New Jersey statute (R.S. 46:8-2, 3, N.J.S.A.) gives assignees of the reversion the same benefits and remedies as lessors or grantors in respect to covenants and conditions and conversely also gives lessees the same remedies against assignees of the reversion which they had against the lessor or grantor. This was taken over from the English statute of 32 Hen. 8, c. 34, s.1. Two English cases in which that particular statute was involved do lend support to the proposition that a bankruptcy clause in a lease runs with the land. However, the New Jersey decisions construing the New Jersey statute do not bear this out. - The holding in the Roberts case is as stated by the court at page 630 of 40 A.: “By force of this statute the conveyance of leased premises without reservation carries with it the right to terminate the tenancy if such right was, by the lease, reserved generally by the lessor.” (Emphasis ours). The facts there show that there was a written lease for one year which provided that the party of the first part might terminate the tenancy at the end of any month by giving a month’s notice in writing to the party of the second part. The owner conveyed the leased premises with the reversion and all of his rights under the said lease to another who died intestate. The sole heir of the deceased gave notice to the tenant in possession of .termination of the tenancy with the court holding as above quoted. In the Boys case, a forfeiture occurred by reason of an express condition of a mining lease that the same should become null and void upon failure of the lessees or their assigns to pay the rent reservation, etc. The court held that under the statute in question the grantees of the reversion had the same right as the grantors to take advantage of such forfeiture. No other New Jersey cases have been suggested or found which, with respect to the statute under discussion, do more than hold that the effect of the Act is simply “ * * * that privity of contract as well as estate was transferred by the statute, and that the grantee of the reversion now stands in the same situation, and has the same remedies against the lessee, as the heirs at law of individuals, or successors in the case of corporations, had before the statute.” State (Watson, Prosecutrix) v. Idler, N.J. Sup.Ct.1892, 54 N.J.L. 467, 24 A. 554, at page 555. The New Jersey statute, under its clear construction by the courts of that State, has no application to the facts here, for in the instant case it is the lessor itself, under the express language of the lease, who has no right of re-entry in accordance with the bankruptcy clause unless the bankruptcy be that of the named lessee, Loeb. Our attention has not been called to any decision in this country holding that the bankruptcy clause in a lease does run with the land and the above referred to Murray and Larkey decisions are strongly to the contrary. The order of the District Court is affirmed. Smith v. Grownow, [1891] 2 Q.B. 394; Horsey’s Estate Ltd. v. Stieger, [1899] 2 Q.B. 79. 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_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-Appellant, v. Floyd Dewayne BEAL, Defendant-Appellee. No. 91-4106. United States Court of Appeals, Tenth Circuit. April 21, 1992. David J. Schwendiman, Asst. U.S. Atty., Salt Lake City, Utah (Paul Warner, U.S. Atty., with him on the brief), for plaintiff-appellant. Craig S. Cook, Salt Lake City, Utah, for defendant-appellee. Before MOORE, ALDISERT, and McWILLIAMS, Circuit Judges. The Honorable Ruggero J. Aldisert, United . States Circuit Judge for the United States Court of Appeals for the Third Circuit, sitting by designation. JOHN P. MOORE, Circuit Judge. The government appeals from an order granting defendant Floyd Dewayne Beal’s motion for judgment of acquittal. In a two count indictment, the defendant was charged with participating in two discrete' transactions which resulted in the sale of a controlled substance to an undercover police officer. Mr. Beal admitted the nature and substance of the transactions but claimed that his participation was the result of entrapment by a government informant. The entrapment defense was the only issue submitted to the jury, which returned verdicts of not guilty on the first count but guilty on the second. Ruling upon a subsequent motion for judgment of acquittal, the trial court concluded as a matter of law the two transactions were inseparable, and the defendant was induced to commit the second transaction by the same influence which caused him to commit the first. Resolution of the appeal lies simply in whether, upon the facts of this case, the trial court correctly ruled that the two transactions were part of one course of conduct. We conclude that it did, and we affirm the judgment of acquittal. Despite differences over the details, the essential facts are not in dispute. Roger Silva, whom the defendant met while the two were imprisoned in 1981, was arrested by Utah police on a charge of distributing cocaine. Realizing he was “facing a 1-to-15-year sentence” and would remain in jail, (R I, 83), Mr. Silva contacted police officials to see whether they would be inclined to make a deal with him. Eventually, Mr. Silva met with Sergeant Carroll Mayes, an undercover Salt Lake City narcotics officer. Sgt. Mayes explained he was interested in arresting large narcotics and stolen property dealers, and he would work with Mr. Silva to effect those arrests. In exchange for participating in a large scale “sting” operation which eventually snared fourteen persons, Mr. Silva' was promised “that I would get all my charges dropped and dismissed completely against me if I wanted to work for them.” (R I, 9). While Mr. Silva did not believe he was given a “guarantee” that his charges would be dismissed, it was his “assumption” that the more transactions he arranged, the better the deal he would get from the police. (R I, 82). Sgt. Mayes denied having made any promises to Mr. Silva, (R II, 8), but over the three month course of their relationship, he did give Mr. Silva $1,590 “just to keep him going.” (R II, 9). Sgt. Mayes instructed Mr.. Silva to contact people known to Mr. Silva to see whether they were currently engaged in criminal activity. If so, Mr. Silva was to call Sgt. Mayes for further instructions. Sgt. Mayes cautioned, however, Mr. Silva was: to be very careful in that I didn’t want him trying to coerce anyone into selling drugs. I didn’t want him excessively pestering people to try to get them to sell drugs, didn’t want him to use anything, no threats, no nothing. Either they want to do business, they will do business; and if they don’t want to, they won’t. And I made it very clear to him that he needed to understand that, and he said that he did. (R II, 8). With those instructions in mind, Mr. Silva contacted a number of people including defendant Beal. His first attempts to reach Mr. Beal were unsuccessful. On several occasions, Mr. Silva managed to talk to defendant’s mother with whom he left messages, and on others, he left messages on the family’s telephone recording machine. ( R II, 151). Mr. Beal, however, tried to avoid Mr. Silva, but after at least seven attempts, id., Mr. Silva was eventually successful in achieving his quest. Although there is disagreement over who placed the call, contact was made on November 23, 1989. During that conversation, Mr. Silva explained he was interested in obtaining methamphetamine. According to Silva, defendant responded, “he was going to school, going to school and working at that time; but he told me he could get me some, but he didn’t have none right there at that time.” (R 1,12). Defendant’s version of the conversation differs, but both agree that Mr. Beal’s reply indicated he had no drugs to sell Mr. Silva. Mr. Silva then responded he would call back to see if Mr. Beal obtained a source of supply'. After several attempts on the next day, at about 3:00 to 4:00 p.m., Mr. Silva reached Mr. Beal. (R I, 14). Mr. Silva stated his “cousin,” who was in reality Sgt. Mayes, was coming to town and wanted to buy an “eight ball” of “crank” (.8 oz.‘methamphetamine). According to Mr. Silva, he called Mr. Beal later that day and arranged to meet at 6:00 p.m. Sgt. Mayes and Mr. Silva drove to the meeting place at the proper time and picked up Mr. Beal who told Sgt. Mayes to follow another car to a place where the transaction would occur. When they arrived, Sgt. ■ Mayes gave Mr. Beal $250, which the defendant took to the occupants of the other car, returning after a short wait with a packet of substance which later proved to be methamphetamine. Sgt. Mayes testified that as a “commission” for making the transaction, Mr. Beal took a “pinch” of the substance and placed it in a cellophane wrapper. (R II, 19). Defendant testified he did not keep the pinch, but returned it to the man who had supplied the substance. (R II, 119). Within “four to five hours later,” (R I, 25), Mr. Silva and Mr. Beal had another conversation. Mr. Silva testified he could not remember who made the call, (R I, 25), but Mr. Beal testified Mr. Silva called him. (R II, 87). Acting on instructions from Sgt. Mayes that the police wanted to make another buy from Mr. Beal, Mr. Silva told him “Drew” (Sgt. Mayes’ undercover name) “wanted to get some more.” (R I, 26). When Mr. Beal apparently indicated a willingness to serve, Mr. Silva recalled Sgt. Mayes who told him to set up the transaction. It was arranged that Mr. Silva and Sgt. Mayes would meet Mr. Beal at a convenience store near the latter’s home at 11:00 p.m. When Sgt. Mayes and Mr. Silva arrived, Mr. Beal was waiting. He got in their truck and directed them to a house nearby. Parked at the house was the same vehicle they had met during the course of the first transaction. In the house, Sgt. Mayes was introduced to the occupants, “Bob” and “Karen.” After approximately an hour and forty-five minutes, Bob announced he was unable to locate his source; therefore, Mayes, Silva, and defendant agreed to leave with a promise to get in touch on the next day. As agreed, Mr. Silva called the next day and arranged another meeting at the convenience store at approximately 3:30 p.m. (R ll, 23). From there, Sgt. Mayes, Mr. Silva, and Mr. Beal again went to the residence of Bob and Karen. At the house, another transaction was concluded during the course of which Mr. Beal took money from Sgt. Mayes, went outside, and returned with a bag of a substance later identified as methamphetamine. Mr. Silva, Sgt. Mayes, and Mr. Beal all testified to a different version of what took place in the house. Those differences notwithstanding, both Mayes and Silva agreed that before Sgt. Mayes received the substance, defendant “tested” it by injecting into his arm a solution made from the contents of the bag. (R II, 25). Mr. Beal denied doing so and stated it was Bob who made the injection. (R II, 89). Sgt. Mayes and Mr. Silva then left, concluding the second transaction. Throughout his testimony, Sgt. Mayes reiterated that at no time did Mr. Beal appear reluctant to deal with him or otherwise indicate Mr. Beal’s actions were not the product of his free will. Mr. Silva, however, repeated statements made to him by Mr. Beal that he was not dealing in “dope,” and that he was working and going to school. Indeed, Mr. Silva testified that after the second transaction, Mr. Beal stated, “You know, Roger, I’m not selling dope. I done this as a favor to you.” (R I, 44). ■ For his part, Mr. Beal told the jury he arranged both transactions just to get rid of Mr. Silva and his insistent calls. (R II, 81). Indeed, he even aborted a final attempt by Mr. Silva and Sgt. Mayes to make another transaction by taking the money proffered by Sgt. Mayes and running away with it. He apparently thought by doing so he would not be asked again to broker a transaction. (R II, 132). Neither his theft of the money nor his purpose was disputed. Mr. Beal maintained that his only interest in brokering the two consummated transactions was to make a connection between Mr. Silva and Bob so that Mr. Silva could satisfy his needs from that source and leave Mr. Beal alone. (R II, 81). Sgt. Mayes, however, said at no time when they were in Bob’s presence did Mr. Beal make any effort to effect that connection.. In contrast, Mr. Silva recognized from their first meeting Mr. Beal attempted to introduce him and “Drew” to Bob because Bob was the source of supply. (R I, 104). Defendant filed a post-verdict motion for judgment of acquittal contending “the events alleged in Counts I and II were so closely connected that it is totally unreasonable to conclude that the defense of entrapment some how [sic] dissipated.” The government responded, as it contends here, that each count of the indictment is a separate charge to be regarded as such by the jury; therefore, it is not unreasonable for the jury to have determined the defendant was not predisposed to commit one transaction but was predisposed to commit the other. The district court entertained extensive argument on the motion. After considering the arguments of both sides, the court stated: Well, I was troubled by this case when the jury verdict came back. It does seem to me that this is a case in which there was a strong original inducement and that in fact this defendant was preyed upon by the government informant to do something that he was not predisposed to do. I think he had his weakness played upon, he was beguiled, and it is a matter of logic that the jury recognized that and held him to be entrapped on the first charge. I think that the second charge came in the same ballpark, the same course of conduct as the first and was the product of the original inducement. Upon the basis of this conclusion, the court set aside the guilty verdict on the second count and granted judgment of acquittal. It is from that order the government appeals. The defense of entrapment was first recognized for federal courts in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). There the Court held that the function of law enforcement is to prevent crime and apprehend criminals and not to manufacture crime. While surreptition is a valid tool in the detection of criminal transactions, [ a] different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute. Id. at 442, 53 S.Ct. at 212-13. Entrapment does not occur when government officials merely offer a person the opportunity and means to commit an offense. Instead, when the criminal act is “the product of the creative activity” of the government, entrapment results. Thus, the inquiry is whether the accused was predisposed to commit the offense or government actors put the notion in his mind. United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir.1986). Ordinarily, entrapment is a question of fact, but a court may conclude as a matter of law that a defendant was subjected to entrapment when the essential facts are not disputed. Id. at 1164. That is precisely what occurred in this case. Because the decision made by the district court is legal in nature, we review it de novo. Id. The government first contends that it established each element of the offense charged in Count II. That, however, is irrelevant to the appeal. Since the defendant admitted his factual guilt of the charges, whether the prosecution proved its case is not an issue. The government uses the argument, however, in an oblique attack on the district court's power to grant a judgment of acquittal, maintaining the court had to reweigh the evidence and substitute its judgment of the credibility of the witnesses. The argument begs the issue. In ruling on the motion for judgment of acquittal, the trial court held, as a matter of law, the defendant was entrapped on both counts. Despite the government's argument to the contrary, that ruling did not depend upon a weighing of the evidence or a judgment upon the credibility of witnesses. To the contrary, the trial court’s order was founded upon undisputed evidence relating to the events of the twenty-four hour period during which the drug transactions occurred. The key to the trial court’s holding is the statement that “the second charge came in the same ballpark.” That colloquialism expresses the conclusion that there was an unbroken continuum of events from Mr. Silva’s initial contact with Mr. Beal to the conclusion of the second transaction. The significant testimony describing the events which took place during that time is undisputed. There is no argument over the time period during which the two transactions were conducted. By all testimony, they began with a telephone conversation between Mr. Silva and Mr. Beal at about 3:00 to 4:00 p.m. on November 24, 1989, and concluded in the late afternoon of the following day. During the course of that time, there is no disagreement over the contacts made by Mr. Silva to solicit Mr. Beal’s participation in three transactions, one of which aborted when Bob was unable to obtain drugs. Thus, there was ample undisputed evidence upon which we. may conclude the second transaction was temporally in the “same ballpark” as the first. Additionally, the court considered the testimony of the witness and concluded the evidence showed “the same course of conduct” between the parties. Except for irrelevant details in the chain of events, the testimony of all three participants describing their conduct during the two transactions is the same. Furthermore, that testimony discloses no variation in circumstances that would show Mr. Beal had a change of mind between the two transactions. The prosecution’s testimony tending to show defendant’s predisposition notwithstanding, the facts shown are of essentially the same nature regarding both transactions. Moreover, the testimony of inducement applied by Mr. Silva during both transactions is fundamentally the same. There is no real dispute that Mr. Silva was the initiator of both transactions. Although he stated Mr. Beal may have called him to arrange the transactions, he also stated he may have made the calls himself. Therefore, his version was equivocal. The descriptions of Mr. Beal’s demeanor during the course of those events given by Sgt. Mayes and Mr. Silva were the same. Both implied Mr. Beal was a willing participant, and neither indicated his demeanor during the two events differed. As proof of different evidence of predisposition, the government seizes on the disputed testimony that Mr. Beal injected himself during the second transaction. That, however, is distinguishable from the testimony he took a “pinch” of substance during the first transaction only by degree. These circumstances show no change in the attitude of the defendant before the first and the second transactions. There is nothing contained in the government’s proof which provides a factual distinction between defendant’s manifested state of mind during those transactions. Thus, we believe there is ample support in the uncon-troverted testimony to conclude the “course of conduct” of the two transactions was the same. Moreover, evidenced by the number of calls he placed to the defendant’s home, it is not disputed that Mr. Silva’s attitude towards the defendant was, at least, persistent. Motivated as he was to make as many contacts as possible to save himself from prison and to obtain money “to keep him going,” Mr. Silva was sufficiently endowed with motive to produce the “strong” inducement noted by the trial court. Because the two counts were founded upon one continuous course of conduct, it follows that the original inducement which “beguiled” Mr. Beal carried over to the second charge. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). In Sherman, the government’s informant met the defendant at a doctor’s office where the two were going for treatment of drug addiction. After persuasion by the informant, the defendant agreed to obtain drugs for him, not only sharing the cost but also the drugs. After several transactions of this nature, the defendant was arrested and charged with separate counts of selling narcotics. The only defense was entrapment, and the defendant contended that even though the charges were founded upon discrete drug transactions, the coercion of the informant applied to each charge. The Court agreed, holding: It makes no difference that the sales for which petitioner was convicted occurred after a series of sales. They were not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement. Id. at 374, 78 S.Ct. at 822. In the present case, the second transaction was no more a discrete crime than were the separate sales in Sherman. Moreover, the course of conduct in this case was completed over a period of approximately twenty-four hours. In Sherman, the transactions between defendant and informant took place over an extended period. The concentration of Mr. Silva’s efforts in the shortened time span in this case merely underscores the validity of the district court’s conclusion that Mr. Beal was “in the same ballpark” and was acting under the influence of the original inducement. Having concluded the trial court correctly reasoned, under the facts of this case, the discrete acts of the defendant were part of the same continuum of events motivated by the same influence, we do not reach the other issues presented by the parties. Mr. Beal would like us to hold as a general rule that once entrapment occurs, a defendant’s subsequent willing acts are immunized from culpability. We are not persuaded to do so. We shall follow this case only as far as it takes us. Suffice, then, that the line ends with the legal conclusion that under the facts of this case the original inducement and not the defendant’s predisposition provided motive for his otherwise criminal acts. As the Court most recently stated in Jacobson v. United States, - U.S. -, 112 S.Ct. 1535, 118 L.Ed.2d 147 (1992): Law enforcement officials go too far when they “implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sorrells [v. United States ], 287 U.S. [435] at 442 [53 S.Ct. 210, 212-13, 77 L.Ed. 413] [(1932)].... [ W]e conclude that this is such a case and that the prosecution failed, as a matter of law, to adduce evidence to support the jury verdict that petitioner was predisposed, independent of the Government’s acts and beyond a reasonable doubt, to violate the law.... 112 S.Ct. at 1536, 1543. AFFIRMED. . Made clear in' the evidence are several other facts. First, at no time did Mr. Beal have methamphetamine in his possession to sell. Second, the purchase money received from Sgt. Mayes was given by Mr. Beal to a third person. Third, no evidence was produced showing defendant took money for himself. Fourth, Mr. Beal’s only source of drugs was through Bob, who was not always able to deliver the requested substance. While these facts are not dispositive, they do bear on the question of Mr. Beal’s predisposition to deal in controlled substances. 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_respond2_5_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 second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "executive/administrative". Your task is to determine which specific state government agency best describes this litigant. The MIHALEK CORPORATION and Lawrence Patrick Mihalek, Plaintiffs-Appellants, v. The STATE OF MICHIGAN, Governor James J. Blanchard, the Dept. of Commerce of the State of Michigan, Ralph J. Gerson, Director, Ross Roy, Inc., Defendants-Appellees. Nos. 84-1851, 84-1854, 85-1593 and 84-1986. United States Court of Appeals, Sixth Circuit. June 8, 1987. Before MERRITT, WELLFORD, and NORRIS, Circuit Judges. ORDER We filed an opinion in this cause on March 18,1987, 814 F.2d 290, affirming the decision of the district court and denying plaintiffs the relief sought for alleged misappropriation of their copyrighted and trademark materials and ideas in the advertising plan in controversy. The petition for rehearing asserts that we failed to reach two issues in our prior opinion. First, the misappropriation claim included the contention that defendants, through governmental and state action, had taken their property without compensation within the meaning of the fifth amendment. Our opinion does not specifically mention the fifth amendment claim. It is clear, however, that our holding was to the effect that as a matter of law there was no “taking” of plaintiffs’ materials and concepts and those utilized by defendants. We found no error in the district court’s conclusion that defendants had not used, appropriated, or benefitted from plaintiffs’ property in the form of ideas, materials, or advertising concepts. There was, then, no violation of plaintiffs’ claimed fifth amendment rights. Plaintiffs also assert that we failed to address their claims of “direct photocopying by defendants” of “copyrighted advertising program plan at the direction of two of the highest officials in the Michigan Department of Commerce.” This contention involves the statement made in (plaintiffs’ brief that two state officials had kept two photocopies of some of the copyrighted material. This photocopying was assertedly discovered during plaintiffs’ Michigan Freedom of Information Act investigation following selection by defendants of another advertising program. It is not clear whether defendants asserted “fair use” as an affirmative defense in this case, nor whether there may have been a technical, although possibly de minimis non curat lex violation of 17 U.S.C. § 106 in the alleged retention of photocopies by two state officials. This question was not specifically addressed by the district court in his decision nor does it appear that this failure to address this issue was called to his attention by the parties. We believe it is best for the district court in the first instance to address this contention. We therefore REMAND the question of alleged photocopying by state officials and whether, if it occurred, this constituted a violation of plaintiffs’ claimed rights in any respect in light of the record made by the parties. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "executive/administrative". Which specific state government agency best describes this litigant? A. Governor B. Attorney General C. Secretary of State D. Other Administrative Officer NOT detailed below E. not ascertained Answer:
songer_casetyp1_1-3-1	R	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". Charles BAER, Appellant, v. Joseph W. SANFORD, Warden, U. S. Penitentiary, Atlanta, Ga., Appellee. No. 11568. Circuit Court of Appeals, Fifth Circuit. May 16, 1946. No appearance for appellant. M. Neil Andrews, U. S. Atty., and Harvey H. Tisinger and John J. Flynt, Jr., Asst. U. S. Attys., all of Atlanta, Ga., for appellee. Before HUTCHESON, HOLMES, and LEE, Circuit Judges. PER CURIAM. Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808, rules this case. On its authority the judgment appealed from is affirmed. 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_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. ÆTNA LIFE INS. CO. v. ROEWE. No. 4244. Circuit Court of Appeals, Seventh Circuit. March 3, 1930. Rehearing Denied March 26, 1930. Frank H. Sullivan, of St. Louis, Mo., for appellant. Rudolph J. Kramer, of East St. Louis, Ill., for appellee. Before EVANS, PAGE and SPARKS, Circuit Judges. PAGE, Circuit Judge. This appeal is from a judgment in favor of appellee, Roewe, beneficiary under a policy on the life of Moore, who died about five weeks after the policy was delivered to him, without payment of the first premium thereon. Appellee’s contentions are: (a) That under the Illinois statute, Orr, the soliciting agent, had the power to, and did, waive the payment of the first premium; (b) that, under the contract of insurance, drafts were to be drawn by appellant’s general agent for premiums, and, as no drafts were drawn, appellant, and not Moore, was in default. The facts are substantially uneontradieted. , Moore and Roewe, as partners, were professional accountants, at East St. Louis, Ill., and made separate applications for insurance, in which each named the other as beneficiary. The Moore policy, together with the receipt for the first premium, was, according to the custom of appellant, sent to Orr. Because further examination was re<quired of Roewe, bis policy was delayed. Orr says that, because of the request in the application that draft he drawn for the premiums, he assumed that he was not to collect any premiums, and therefore delivered the policy to Moore without requiring payment of the first premium. However, he told Moore then, and again a few days before Moore’s death, that the premium should be paid to put the policy in force. The only contradiction in the evidence is in this:. Orr testified that shortly after Moore’s death appellee told him that the rea-son why the Moore premium had not been paid was that he (Roewe) intended waiting until the Roewe .policy was also delivered; Roewe admits a conversation with Orr at that time, but denies using the language as related by Orr. However, Roewe, after testifying that lie bad made no arrangement with the bank about paying drafts to be drawn for premiums, further testified: “I hadn’t made the definite arrangements with the bank on account of waiting until my policy would also come through, so I would know the amount we should charge every three months against the joint account.” That is very close to what Orr said Roewe had told him, and seems to show the reason why the Moore premium was not paid. The Illinois statute relied upon provides (paragraph 346, e. 73, Cahill’s Illinois Rev. Stats.): “Who Agent of Foreign Company. § 23. Whoever solicits insurance on behalf of any life company not chartered by and not established within this State, or transmits, for any person other than himself, an application for life insurance, or a policy of life insurance, to or from such company, or advertises that he will 'receive or transmit the same, shall be held to be an agent of such company to all intents and purposes, and subject to all the duties, requisitions, liabilities and penalties set forth in the laws of this State relating to life insurance companies not incorporated by the Legislature thereof.” That statute simply means that a foreign corporation, which accepts applications from any solicitor, must also accept him as its agent. Nothing is said in the statute as to whether such agency is a special or a general one, or what powers such an- agent has. Those are matters to be determined from the facts in each case under the general law relating to agency. It is not denied that Orr was the agent of the company, but it is denied that it was within his power to waive any conditions of the policy. The case of Hancock Life Ins. Co. v. Schlink, 175 Ill. 284, 51 N. E. 795, 796, relied upon by appellee, is very different, upon the facts from this case, and the holding of the court there was: “If Ballanee was the agent of appellant, as we think he was, with power to solicit insurance of Sehlink, receive the application, forward it to appellant, receive the policy when issued, collect the premium, and deliver the policy, then he had power to waive a condition of the policy.” That is an opinion of the court upon the general law of agency, and is not the construction of any statute. It is not binding upon this court, and is not in harmony with the law in the federal courts. Ætna Ins. Co. v. Moore, 231 U. S. 543, 34 S. Ct. 186, 58 L. Ed. 356; MacKelvie v. Mutual Benefit Co., 287 F. (2nd C. C. A.) 660, 663. Upon its face, the Moore policy provided: “This policy is issued and accepted subject to all of the conditions, benefits and privileges described on the following pages, which are hereby made a part of this contract.” A rider attached to the policy reads: “This policy and the application here-for, a' copy of which application is attached hereto and made a part hereof, constitute the entire contract between the parties hereto.” On the back of the policy is the following: “This policy shall not become effective until the first premium upon it is paid during the good health of the insured.” Another provision is: “All agreements made by the Company are signed by its President, Vice President, Secretary, Assistant Secretary, Treasurer, or Assistant Treasurer. No other person can alter or waive any of the conditions of this policy, extend the time for paying a premium or make any agreement which shall be binding upon the Company.” The application contains the following question and answer: “Where are premium notices to be sent?” “Southern Ill. National Bank, E. St. Louis, Ill.” Question 7 of the application, as it appeared as a part of the policy of insurance when delivered to Moore, is as follows (The part in italics was in writing, and all other parts were printed; “See H. O. End” refers to what appears under “Home Office Endorsements Only”): “7. Has any payment of premium been made and binding receipt given on form 257-D detached herefrom. See H. O. End. “What settlement has been made? Draft to he drawn hy General Agent. If given the terms of the binding receipt are hereby agreed to. If not given, it is agreed, that no insurance hereon shall be effective until a policy is issued, and the entire first premium has been paid during the good health of the proposed insured and within sixty days from date of medical examination. “Home Office Endorsements Only. “Ques. 7 should be answered ‘No.’ “Enter Here any Special Features Pertaining to Application. ‘‘The applicant requests that the Peoria General Agency draw a draft on the account of the Moore Boewe Audit Co. for a Quarterly premium as they come due. They bank at the Southern Illinois National Bank of E. St. Louis, III. “The above statement and answers and those in part 2 of this application are and shall be complete and true and it is hereby agreed that acceptance of any policy issued on this application shall constitute a ratification of the manner in which the policy is written in respect to the beneficiary and of any corrections, additions or changes, made by the Company and entered in the space provided for 'Home Office Endorsements Only.’ “Dated at E. St. Louis, III. this 15th day of Feb. 1928. “(If premiums are to be paid from the funds of a corporation or person other than the proposed insured, such a corporation or person should sign below). The premiums are to be paid from the funds of the undersigned. “Moore-Roewe Audit Co. “H. D. Moore No. 318159. “Harold Douglas Moore Proposed Insured. “Must sign full name “R. E. Orr Witness.” The foregoing told Moore plainly that he took the policy subject to all of its terms and conditions. One of its terms was that his application was to- be a part of the policy. Another was that only specified officers, and Orr was not one of them, could extend the time for paying a premium. Moore was twice- told, once by the language upon the back of the policy, and again under question 7, immediately following the statement “Draft to be drawn by General Agent,” that no insurance should become effective until the entire first premium had been paid. In the MaeKelvie Case, above cited, the court said that, where such provisions are contained in a contract of insurance, they are to be taken as meaning exactly what they say; that is, that an agent, such as Orr, had no authority to wlaive them. Several Supreme Court eases and many cases in the Circuit Courts of Appeals are there cited in support of that holding. We do not find from the facts that Orr had either the power or the intent to waive payment of the first premium. What Orr told Moore, as above related, shows a contrary intention. There remains to- be considered the effect of the provision in the policy of appellant’s assent to the request in the application that a draft be drawn by the general agent. There is no inconsistency between that provision and the provision that the policy should not become effective until the first premium was paid. If Moore had intended that the payment of the first premium was to be waived or delayed until a draft was drawn therefor, it is not conceivable that a man of his experience and intelligence would have left in the application the words immediately following his request that a draft be drawn for the premiums by the general agent, viz.: “If given the terms of the binding receipt are hereby agreed to. If not given, it is agreed that no insurance hereon shall be effective until a policy is issued, and the entire first premium has been paid,” etc. Had Moore or Roewe (Roewe being charged by Moore with making the financial arrangements at the bank) desired to do so-, either could have paid the premium, without waiting for a draft to be drawn. It does not appear that any one representing appellant, other than Orr, knew of the delivery of the policy without the payment of the first premium. Moo-re knew that he must pay the first premium to put the policy into effect, and he was not misled or prejudiced because of the delivery to him of the policy without payment of the premium. The District Court should have instructed the jury to find the issues for the defendant. The judgment is reversed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? 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. HONEYCUTT v. TUCKER BROS. MFG. CO. TUCKER BROS. MFG. CO. v. HONEYCUTT. Nos. 8813, 8826. Circuit Court of Appeals, Eighth Circuit. Dec. 6, 1930. Percy S.. Webster, of Stockton, Cal. (George Y. Thorpe, of Kansas City, Mo., on the brief), for Tucker Bros. Mfg. Co. M. M. Moore, of Minneapolis^ Minn. (Arthur C. Brown, of Kansas City, Mo., on the brief), for A. C. Honeycutt. Before STONE and VAN VALKENBURGH, Circuit Judges, and SCOTT, District Judge. SCOTT, District Judge. Bill of complaint by Tueker Brothers Manufacturing Company, a copartnership, against A. C. Honeycutt doing business as Honeycutt Manufacturing Company, for infringement of United States letters patent No. 1,411,391 and No. 1,424,530. The answer admits the issuance of the letters patent and contains the usual denials of original invention, of publication and of previous patent, as well as infringement, and further pleads anticipation and description in many other patents, and particularly in United States letters patent No. 187,838, Frakes; No. 494,-334, Hills; and No. 760,914, Newberry. The Frakes patent, urged as anticipatory, is denominated as “Improvement in Tire-Tighteners.” Claim 1 reads: “The tire-tightener consisting of the swiveled footed hollow upright A, having the hollow lifting upright or standard B, provided with the cross-bars b b, in combination with the wedge C, having notches or grooves c e and wedge C', substantially as and for the purpose set forth.” Wedge C, above referred to is figure 2 in the drawings and substantially in the following form: Its purpose is to tighten the spoke and felly where there is play between the two parts. The Hills patent, urged as anticipatory, is denominated “Improvements in Washers for Wheel-Fellies,” and comprises three claims as follows: “1. A washer for the purpose named, consisting of an annulus in a single piece severed entirely through at one point, and partially at another, substantially as and for the purpose described. “2. A washer, comprising an annulus of a single piece severed entirely through at one point and partially at another, and adapted to receive a fastening at the point of complete severance, substantially as described. “3. A washer in the form of an annulus formed of a single piece of flexible material having a slot at one point and cut entirely through at its diametrical opposite side with enlargements opposite the cut and slit, substantially as shown and described.” The washers are illustrated in drawings, figures 4, 5, and 6, substantially as follows: The Newberry patent, urged as anticipatory, is denominated for “Improvements in Washers,” and the claim is as follows: “A washer comprising a resilient metallic body portion consisting of an open-ring disk forming an incomplete annulus, the spaced walls of such annulus being obliquely inclined in opposite directions, forming a flaring receiving-space and having inwardly-projecting ratchet-teeth, and a segment of wedge form adapted to fit within said space and expand said walls to place the body portion under tension, said segment being provided with similarly-inclined ends formed with outwardly-projecting ratchet-teeth adapted to be held in locking engagement with the toothed walls of the body portion by the tension of the body portion, said segment constituting a complementary member completing, when so applied and locked, the annular continuity of the said body portion, substantially as described.” The washer structure is illustrated in six figures, one of which, figure 3, shows the completed washer: In patent No 1,411,391, the controversy is confined to elaims 1 and 2. And in patent No. 1,424,530, to claims 1 and 2 (being the only elaims therein contained). The cause was tried and decree rendered, holding letters patent No. 1,411,391 valid and infringed, and holding letters patent No. 1,-424,530 invalid. From sueh decree the defendant appeals as it pertains to letters patent No. 1,411,391, and plaintiff files cross-appeal from the decree as it pertains to letters patent No. 1,424,530. These appeals are docketed respectively as eases No. 8813, and No. 8826. The claims in controversy of letters patent No. 1,411,391 read as follows: , “1. A spoke tightener comprising a shim provided with an orifice and with "an opening leading to said orifice from the outer edge of the shim, said opening being narrower than the orifice at the junction therewith. “2. A spoke tightener comprising a shim provided with an orifice adapted to receive the tenon of a spoke and to be positioned between the spoke and felly of a wheel, and an opening leading to the orifice from the outer edge of the shim, said opening being slightly smaller than the tenon at the junction of the opening with the orifice.” The drawings on elaims 1 and 2 of letters patent No. 1,411,391, are in three figures, as follows: The elaims in letters patent No. 1,424,530, read as follows: “1. A spoke tightener comprising a shim member provided with an orifice to receive the tenon of a spoke, said shim being cut through from the outer edge to the orifice, and from the opposite side of the orifice to a point short of the adjacent outer edge; the shim before placement being sprea,d apart at the cut-through edges to allow the tenon to pass therethrough; the opposite incision then spreading to form a V whose sides are in alinement with the first named edges, whereby on pinching the spread portions together the Y-shaped incision will close proportionately with the closing of the cut-through edges. “2. A spoke tightener comprising a shim member provided with an orifice to receive the tenon of a spoke, said shim being cut through from the outer edge to the orifice, and from the opposite side of the orifice to a point short of the adjacent outer edge; the shim before placement being spread apart at the cut-through edges to allow the tenon to pass therethrough; whereby on pinching the outer edges of the spread portions together they will close simultaneously and symmetrically.” The drawings on the claims in letters patent No. 1,424,530, are in three figures as follows: Without proceeding to a lengthy discussion of the principles of patent law, or a mechanical analysis of the separate features of the various devices, the drawings of which we have here set forth and which speak for themselves, we are of opinion that the trial court erred in holding patent No. 1,-411,391 valid. We think anticipation is found in Brakes, No. 187,838; in Hills, No. 494,334; as well as in Newberry, No. 760,-914. We think the court was correct in holding patent No. 1,424,530 invalid, for the same reasons. The prior art seems to have involved every principle of each of these inventions. It therefore follows that case No. 8813 should be and is reversed; and case No. 8826 should be and is affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. Kenneth WATSON, Appellant, v. UNITED STATES of America, Appellee. No. 15733. United States Court of Appeals Fifth Circuit. Dec. 16, 1955. Kenneth Watson, Seagoville, Tex., for appellant. Cavett S. Binion, Asst. U, S. Atty., Ft. Worth, Tex., for appellee. Before HUTCHESON, Chief Judge, and BORAH and BROWN, Circuit Judges. PER CURIAM. Appellant, defendant below, was convicted, on his plea of guilty, of knowingly uttering and publishing a certain falsely altered United States postal money order issued in the amount of $6 and falsely raised to $60. Sentenced to five years imprisonment, the maximum sentence which could be imposed for the offense charged, he -is here insisting as grounds for reversal: that the sentence was excessive; and that his plea of guilty was not voluntarily and understandingly entered in that it was made upon the basis of pretrial discussions with government investigators and a letter from the United States Attorney by which he was led to believe and did believe, that if he pleaded not guilty and was convicted he would receive .the maximum sentence, while -if he pleaded guilty he would receive leniency, perhaps probation. These matters, relevant and important as they undoubtedly would be if this were an appeal from a motion under Section 2255, 28 U.S.C., to set aside a judgment because entered on waiver of counsel and a plea of guilty on the ground that the waiver and plea had not been intelligently and voluntarily made, are not before us- for consideration on this record and this appeal. For the judgment appealed from is the judgment of sentence and nothing in the record relevant to that appeal at all impeaches it. The judgment is affirmed, without prejudice, however, to the right of the appellant to proceed as he may be, advised by motion to correct or vacate judgment under Section 2255. 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_circuit	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. DOHERTY v. McAULIFFE et al. No. 2949. Circuit Court of Appeals, First Circuit. Jan. 4, 1935. Robert G. Dodge, of Boston, Mass. (Harold S. Davis, of Boston, Mass., Robert S. Sloan and Joseph A. Burdeau, both of New York City, and Charles F. Dutch and Arthur F. Ray, both of Boston, Mass., on the brief), for appellant. Alfred Gardner, of Boston, Mass. (Paul B. Sargent, of Boston, Mass., on the brief), for appellee McAuliffe. William H. Lewis, of Boston, Mass., for various appellees. George L. Dillaway, of Boston, Mass. (Allan Robinson, of Boston, Mass., on the brief), for intervener Absolom. Before BINGHAM, WILSON, and MORTON, Circuit Judges. MORTON, Circuit Judge. This is a bill in equity to restrain a multiplicity of suits with which the plaintiff, a stockbroker, alleges he is being threatened under the Blue Sky Law of Massachusetts (G. L. [Ter. Ed.] c. 110A) by many different persons who bought stock from him; the proceeding is sometimes called) a “Bill of Peace.” The bill shows complete diversity of citizenship as to the named defendants and more than $3,000 in controversy; and it alleges that the statute in question violates the Fourteenth Amendment to the Constitution of the United States. The defendants make no question as to jurisdiction, nor as to the equity of the bill. In the court below, after full hearing, there was a decree, called an “interlocutory decree,” denying the permanent injunction prayed for and holding that the statute is constitutional, and that the contracts in question are void under it, but continuing during the pendency of this appeal the preliminary injunction previously granted. The plaintiff has appealed. Doherty was a registered broker under the Massachusetts Blue Sky law. The stock in question, that of the Cities Service Company, could be legally sold in Massachusetts under the law. Doherty sold substantial amounts of it on installment contracts. This method of sale is the subject of a special provision in the statute (G. L. Mass. [Ter. Ed.] c. 110A, § 8) which is as follows: Sec. 8. “No person registered as a broker or salesman shall sell any security or securities, whether exempted under section three or not, which are to be paid for in accordance with the terms of an instalment or partial payment plan contract except as such plan is approved by the commission.” Doherty being as he claims unaware of this provision made installment sales on a plan or form of contract which had not been approved by the commission which administered the law. All these contracts were completed; the stock was paid for and was taken by the buyers. Subsequently, when the buyers discovered that the form of contracts under which they purchased had not been approved by the commission, several of them brought actions against Doherty claiming the right to rescind the contracts and gel back their money. Many other similar actions were threatened; and the present bill was filed. The plaintiff further contends, and alleges in the bill, that even if the statute be constitutional and valid, his violation of it did not give the defendants the right to rescind completed transactions. The defendants, on the other hand, contend that the statute is constitutional and that they have the right to rescind. The statute in question has been carefully considered by the Supreme Judicial Court of Massachusetts, in Kneeland v. Emerton, 280 Mass. 371, 183 N. E. 155, 87 A. L. R. 1. It was there held that the parts of the act then before the court are valid; that sales of unqualified securities are void; and that the buyer may rescind such sales even after full completion and recover what he paid. We accept as in duty bound the state court’s construction of the state statute. We agree with its conclusion that the statute in its general provisions is not unconstitutional. The question is elaborately considered in the opinion in the Kneeland Case, and it is unnecessary to repeat the discussion. The provision involved in this case, section 8, was not before the Massachusetts court and was not passed upon by it; but if the statute in its other aspects is constitutional, it seems quite clear that the provision here involved is also constitutional. We do not doubt that the Legislature had the power to regulate sales on installments, nor that the provision forbidding brokers to sell in that way except upon a plan approved by the commission was a valid exercise of this power. As the bill shows jurisdiction in federal courts and a federal question, the District Court had jurisdiction of the entire controversy. “The Federal questions as to the invalidity of the state statute because, as alleged, it was in violation of the Federal Constitution, gave the circuit court jurisdiction, and, having properly obtained it, that court had the right to decide all the questions in the case, even though it decided the Federal questions adversely to' the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only.” Peckham, J., Siler v. L. & N. R. R., 213 U. S. 175, at page 191, 29 S. Ct. 451, 454, 53 L. Ed. 753. See, too, Green v. L. & I. R. R., 244 U. S. 499, 508, 37 S. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88; Hopkins v. So. Cal. Tel. Co., 275 U. S. 393, 48 S. Ct. 180, 72 L. Ed. 329. The final question is whether the defendants have the right to rescind and recover what they paid. It depends on whether installment sales, not made on a plan approved by the commission, were by the statute made absolutely void or only voidable. The defendants contend that, though this question was not directly involved in Knee-land v. Emerton, the construction placed upon the statute by that decision requires us to hold that such sales were void, and that in any event the statute ought to be so interpreted. The provision there considered (G. L. Mass. [Ter. Ed.] c. 110A, § 5) was in substance that “no security * * * shall be sold” unless qualified under the act or exempted from its provisions. The provision now under consideration is found in a later section of the statute regulating brokers and persons whose business is selling securities. It is, basically, that no person shall sell securities as a broker unless registered, and that no registered broker shall sell securities on installments except under a plan which has been approved by the commission. In Kneeland v. Emerton, supra, the court was dealing with the sale of an unqualified security which was absolutely forbidden. Here the security might legally be sold and the plaintiff was qualified to sell it in the usual way. The only illegal aspect of the transaction was that the stock was to be paid for by installments instead of by a single payment. Section 5 is differently phrased from section 8; the former deals with subject-matter; the latter with mode of sale. There were strong reasons, almost a necessity if the statute was to be effective, for holding that sales of unqualified securities were void, which do not apply with anything like equal force to the transaction before us. In view of the differences in the language of the two sections of the statute and in the conditions which they were designed to meet, we do not think that Kneeland v. Emerton, supra, is controlling on the question before us. Whether a statute makes void contracts which have been entered into in disregard of its provisions is a question which has often arisen; there is a large body of law on the subject.. The accepted rule is well stated in Bowditch v. New England Mutual Life Insurance Co., 141 Mass. 292, 4 N. E. 798, 800, 55 Am. Rep. 474: “But it is often a question of difficulty to determine whether a statute forbidding an act to be done, or enjoining the mode of doing it, is prohibitory so as to make any contract in violation of it absolutely void, or whether it is directory in its purpose, and docs not necessarily invalidate the contract. * * * “Each statute must be judged by itself as a whole, regard being had, not only to its language, but to the objects and purposes for which it was enacted. If the statute does not declare a contract made in violation of it to be void, and if it is not necessary to hold the contract void in order to accomplish the purpose of the statute, the inference is that it was intended to be directory, and not prohibitory of the contract.” Morton, C. J., page 293, 295 of 141 Mass., 4 N. E. 798. See, also, Harris v. Runnels, 12 How. 79, 84, 13 L. Ed. 901; Huey v. Passarelli, 267 Mass. 578, 166 N. E. 727; Sinnott v. German-American Bank, 164 N. Y. 386, 58 N. E. 286; Fritts v. Palmer, 132 U. S. 282, 10 S. Ct. 93, 33 L. Ed. 317; Dunlop v. Mercer (C. C. A.) 156 F. 545; Bemis v. Becker, 1 Kan. 226. The object of the provision here in question was to prevent brokers from overreaching by means of installment contracts which imposed unfair conditions on the buyer. When such a sale has been completed and the securities delivered, this consideration becomes of little force. It is going beyond what the statute requires, to hold that sales of a permitted security by a registered broker are completely void because* the form in which they were made was not approved. The mere fact that by making a contract a person violates the law and renders himself liable to punishment does not necessarily render the contract void. In the cases above cited more extreme instances of violation of regulatory statutes were held not to have the effect of voiding contracts. For instance, statutes which forbid persons from selling lots according to any plan until the plan lias been recorded and imposes penalties for violation of them do not make void the contracts, Watrous & Snouffer v. Blair, 32 Iowa, 58; Bemis v. Becker, 1 Kan. 226; statutes forbidding persons from carrying on business under fictitious names and imposing penalties for so doing do not make void contracts made by a person who is violating the statute, Hayes v. Providence Citizens’ Bank & Trust Co., 218 Ky. 128, 290 S. W. 1028, 59 A. L. R. 450; Sagal v. Fylar, 89 Conn. 293, 93 A. 1027, L. R. A. 1915E, 747; Rutkowsky v. Bozza, 77 N. J. Law, 724, 73 A. 502; Lamb v. Condon, 276 Pa. 544, 120 A. 546; a statute forbidding corporations under penalty from holding real estate does not make void title acquired by a corporation in violation of the statute, Fritts v. Palmer, 132 U. S. 282, 10 S. Ct. 93, 33 L. Ed. 317. A statute may have the effect of making a contract voidable while still executory but not void after completion. Sinnott v. German-American Bank, 164 N. Y. 386, 58 N. E. 286; Bawden v. Taylor, 254 Ill. 464, 98 N. E. 941. II the Legislature had intended to outlaw installment sales not made on an approved plan, it would have been very easy to say so. The basic difference in language between section 5 and section 8, and the fact that no such provision was inserted are significant. It seems probable that the decision in Kneeland v. Emerton went beyond the actual intention of the Legislature with respect to making contracts void (280 Mass. 379, 380, 183 N. E. 155, 87 A. L. R. 1). Installment contracts made in violation of section 8 may be voidable by the buyer while executory, but we do not think it was intended that they should be void, nor that, alter they have been fully performed, there is any right to rescind. It follows that the decree appealed from must be vacated except that the preliminary injunction referred to in clause 4 of said decree may stand sxibject to further order of the District Court, and that the case should be remanded to the District Court for further proceedings in accordance with this opinion. The decree of the District Court is vacated and the case is remanded to that court for further proceedings not inconsistent with this opinion. 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_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. UNITED SHOE MACHINERY CORP., Defendant, Appellant, v. INTERNATIONAL SHOE MACHINE CORP., Plaintiff, Appellee. No. 5574. United States Court of Appeals First Circuit. Feb. 23, 1960. See also D.C., 167 F.Supp. 93. Robert Proctor, Boston, Mass., with whom John L. Hall, Jeptha H. Wade, Conrad W. Oberdorfer, and Choate, Hall & Stewart, Boston, Mass., were on brief, for appellant. James M. Malloy, Boston, Mass., with whom Ralph Warren Sullivan, Morton Myerson, Boston, Mass., and Ernst 0. Seyfarth, W. Newton, Mass, were on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. PER CURIAM. The plaintiff below and appellee here filed a complaint in the court below on December 14,1956, to recover treble damages under §§ 15 and 16 of Title 15 U.S.C.A., commonly known as the Clayton Act. It claimed damages from the time it was organized in 1938 resulting from the defendant’s below and appellant’s here alleged monopolization of the shoe machinery business. The defendant answered and relying upon the 1955 amendments of the Clayton Act, 69 Stat. 283, moved under Rule 56(b), 28 U.S. C.A., for partial summary judgment insofar as the plaintiff’s complaint purported to assert any cause of action arising more than four years prior to the filing of the complaint, that is prior to December 14, 1952. The court below denied the motion and in its order of denial certified the question presented as appropriate for immediate appeal under § 1292(b). The defendant made timely application to this court for an appeal and we granted the application. As in Herman Schwabe, Inc., v. United Shoe Machinery Corporation, 274 F.2d 608, decided by the United States Court of Appeals for the Second Circuit on January 20, 1960, a suit by the United States upon .the same “cause of action” as that in the case at bar was pending against the defendant between December 15, 1947, and June 23, 1954. Nor is there any other significant difference between the facts in this case and the facts in the Herman Schwabe, Inc., case in which the court considered and refuted the same arguments advanced by the plaintiff in the court below and again as the appellee on this appeal. We find nothing to add to the discussion of the Court of Appeals in that case. On the reasoning and statutory analysis of that opinion and on the cases cited therein: Judgment will be entered setting aside the order of the District Court and remanding the case to that Court for further consistent proceedings. 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:
songer_genapel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. HOEPPNER CONSTRUCTION CO., Inc., a Texas corporation, and Houston Fire and Casualty Insurance Company, a Texas corporation, Appellants, v. UNITED STATES of America for the use of TRAUTMAN & SHREVE, INC., a Colorado corporation, Appellees. No. 6124. United States Court of Appeals Tenth Circuit. Jan. 4, 1960. Rehearing Denied Feb. 1,1960. Lowell White, Denver, Colo. (Walter A. Steele, Denver, Colo., was with him on the brief), for appellants. Thomas J. Carney, Golden, Colo. (Bradley, Carney & Johnson, Golden, Colo., were with him on the brief), for appellees. Before MUBRAH, Chief Judge, and PHILLIPS and HUXMAN, Circuit Judges. PHILLIPS, Circuit Judge. This is an action brought under the Miller Act (40 U.S.C.A. § 270 et seq., as amended) by the United States of America for the use of Trautman & Shreve, Inc. against Hoeppner Construction Co., Inc. and Houston Fire and Casualty Insurance Company. In 1954, the United States Government entered into a contract with the prime contractor for the rehabilitation of 35 barracks located at Lowry Air Force Base, Denver, Colorado. The prime contractor and surety, as principal and surety, respectively, executed a payment bond in accordance with the requirements of 40 U.S.C.A. § 270a. The prime contractor and subcontractor, on August 6, 1954, entered into an agreement under which the subcontractor was to: “Furnish and install all material and labor as outlined in Section IX of the Specifications, and as shown on the Plans, including but not limited to: “Plumbing — General Purpose.” Among the fixtures set forth in Section IX of the specifications were soap dishes. During the progress of the work a dispute arose between the prime contractor and the subcontractor as to whether the subcontractor was required to install the soap dishes called for in the specifications. They were finally installed by the prime contractor. On August 9, 1955, the subcontractor received from the prime contractor a check for $5,435.32, drawn on the first State Bank of Abilene, Texas. On the back of the check the following appeared: “Total contract for Mechanical Work on 35 Barracks, Lowry AFB, Colorado $36,000.00 Authorized Extras: 14,863.27 Total revised contract: 50,863.27 Less previous payments: 43,293.15 ' 7,570.12 Less back charges : 2,134.80 Payment in Full 5,435.32 “Endorsement acknowledges payment in full of this contract.” After considering the course it should take with respect to the check, the subcontractor, on August 19, 1955, wrote to the contractor acknowledging receipt of the check and continuing: " * * * This check is not acceptable to us and will not be received in full payment of this obligation, but will be applied on account. “The amount claimed as due us under the contract is $7,570.12. “If our procedure in applying the amount received in this check on account is not rejected within ten days from receipt hereof, we will assume that this offer has been accepted by you.” The subcontractor received no reply to its letter and on the expiration of the ten day period it turned the check over to its attorneys after being advised by them that if it cashed the check it would consummate an accord and satisfaction. Upon receiving that advice the subcontractor undertook to contact the prime contractor by telephone with respect to the subcontractor’s claim and the check, but was unable to reach anyone with authority to speak for the prime contractor. At frequent intervals thereafter, the subcontractor attempted to reach the prime contractor and discuss with it the claim and check, but was unable to contact Mr. Hoeppner, the prime contractor’s superintendent, Mr. Watson, or anyone else with authority to act for it. On October 12, 1955, the subcontractor’s attorneys wrote a letter to the surety explaining the situation with respect to the check and the subcontractor and attorneys acting for the surety undertook to effect a settlement, but no settlement was reached. Shortly before the filing of this action, the subcontractor mailed the check to the prime contractor at its last known address, viz., Wichita Falls, Texas. It was returned and the envelope had not been opened. The check would have been honored had it been presented for payment by the subcontractor at any time between August 19, 1955, and September 30, 1955. The case was tried to the court. It found the facts substantially as stated above and further found that under the subcontract the subcontractor was obligated to install the soap dishes. It concluded there was a genuine dispute as to the amount due the subcontractor, but that the “mere retention of the check * * * did not under all the facts shown by the evidence constitute an accord and satisfaction.” It concluded that the amount due the subcontractor was $5,-435.32 and entered judgment against both the prime contractor and surety for that amount, with interest and costs. The prime contractor and surety have appealed. An accord and satisfaction rests in contract and the essentials of a valid contract must be present. There must be an offer and an assent to that offer. The assent does not necessarily involve mental assent.Here, the sending of the check with the accompanying letter clearly was an offer of an accord. The principal point relied on by the prime contractor and surety presents the narrow question whether the retention of the check by the subcontractor, under the facts and circumstances, constituted an assent. Mr. Williston, in his treatise on Contracts, Vol. VI, §§ 1854-1856, pp. 5213-5222, expresses the view that an accord and satisfaction results where the debtor tenders a check in settlement of an un-liquidated or in good faith disputed claim with “a letter stating that the check is sent in full satisfaction, and that the creditor if unwilling to accept it as such must return it” and the creditor immediately advises the debtor that he refuses to accept the check as full satisfaction but will apply it in reduction of the indebtedness and the creditor retains the check an unreasonable time. Mr. Willis-ton says the creditor’s act amounts to a conversion and although there is no mutual assent the creditor may not assert his tortious conversion; and that the debtor may treat the exercise of dominion over the check by the creditor as an acceptance, despite the creditor’s manifest intention not to accept it. Mr. Williston’s view was adopted in Curran v. Bray Wood Heel Company, 116 Vt. 21, 68 A.2d 712, 13 A.L.R.2d 728. There are adjudicated cases holding that a creditor’s retention for an unreasonable time of a check tendered in full payment of an unliquidated or disputed claim, without cashing or otherwise using it and without indication of a refusal to accept the check in satisfaction of his claim, consummates an accord and satisfaction. Other courts have held that the mere retention of a check tendered in full payment of an unliquidated or disputed claim without any affirmative act or use does not result in an accord and satisfaction. And there is respectable authority for the proposition that retention of a check tendered in settlement of a disputed or unliquidated claim does not result in an accord and satisfaction, where the creditor seasonably notifies the debtor that the check will not be accepted as full settlement, and like authority, also, for the proposition that nonacceptance of a check tendered in full payment of a disputed or unliquidated claim may be negatived by affirmative acts of the creditor, notwithstanding his retention of the check. We are of the opinion that the facts in the instant case preclude a holding that the subcontractor assented to the offer. Here, the subcontractor, promptly on receipt of the check and the accompanying letter, advised the prime contractor by letter the check would not be accepted in full settlement of the claim, but would be applied on the account, unless the prime contractor objected to such application. The prime contractor did not respond to that letter, which affirmatively manifested the subcontractor’s nonacceptance of the check on the basis it was tendered and expressed nonassent to an accord and satisfaction. Moreover, the subcontractor made no use of the check and exercised no dominion over it beyond mere retention. Furthermore, it made repeated efforts to contact the prime contractor to discuss the claim and check and it was unable so to do. Finally, it returned the check to the prime contractor’s last known address and the envelope in which it was transmitted was returned, not having been opened. The subcontractor also endeavored to effect a settlement with the surety. Not only was there notice of nonacceptance and nonassent, but affirmative acts thereafter culminating in an effort to return the check, manifesting nonas-sent to an accord and satisfaction. We conclude that there was no assent on the part of the subcontractor and, therefore, no accord and satisfaction. The failure of the subcontractor to present the check for payment within a reasonable time after issue did not discharge the liability of the prime contractor. Colorado Revised Statutes 1953, § 95-3-3 reads: “When check must be presented. A check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.” There was no proof that failure to cash the check resulted in a loss to the prime contractor. The claim of the subcontractor against the surety is not barred by waiver or estoppel. Not all of the well recognized elements of waiver or estoppel are present. Affirmed. . Hereinafter called the subcontractor. . Hereinafter called the prime contractor. . Hereinafter called the surety. . The back charges were on account of the soap dishes installed by the prime contractor. . Western Air Lines v. Hollenbeck, 124 Colo. 130, 235 P.2d 792, 797; Metropolitan State Bank v. Cox, 134 Colo. 260, 302 P.2d 188, 192; Williston on Contracts, Rev.Ed., Vol. VI, § 1854, p. 5213; 1 C.J.S. Accord and Satisfaction § 3, pp. 468, 469. . Williston on Contracts, Rev.Ed., Vol. VI, § 1854, p. 5213. . 13 AX.R.2d., Note pp. 742, 743, 744. . 13 A.L.R.24, Note pp. 738, 739; 34 A.L.R., Note pp. 1058, 1059. . 13 A.L.R.2d, Note pp. 739, 740. . 13 A.L.R.2d, Note pp. 745, 746; See also Drug Service Co. v. Morrison, 78 Colo. 377, 242 P. 74. 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_app_stid	43	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 task is to identify the state of the first listed state or local government agency that is an appellant. MEMPHIS LIGHT, GAS AND WATER DIVISION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Texas Gas Transmission Corporation, Tennessee Valley Municipal Gas Assoc., etc., Intervenors. MEMPHIS LIGHT, GAS AND WATER DIVISION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Texas Gas Transmission Corporation, American Public Gas Association, Intervenors. TENNESSEE VALLEY MUNICIPAL GAS ASSOCIATION et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Texas Gas Transmission Corporation, Intervenor. PUBLIC SERVICE COMMISSION OF the STATE OF NEW YORK, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Texas Gas Transmission Corporation, Intervenor. Nos. 24517, 24518, 24602 and 24632. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 28, 1971. Decided Feb. 18, 1972. Rehearings Denied in Nos. 24517 and 24632 May 11, 1972. Mr. George E. Morrow, Memphis, Tenn., with whom Mr. Reuben Goldberg, Washington, D. C., was on the briefs, for petitioner in Nos. 24517 and 24518. Mr. Morton L. Simons, Washington, D. C., for petitioner in No. 24632. Mr. J. Richard Tiano, Asst. Sol. F. P. C., with whom Messrs. Gordon Gooch, Gen Counsel, and Abraham R. Spalter, Asst. Gen. Counsel, F. P. C., were on the brief, for respondent. Mr. Israel Convisser, Atty., F. P. C., also entered an appearance for respondent. Mr. Christopher T. Boland, Washington, D. C., with whom Mr. Richard J. Connor, Washington, D. C., was on the brief, for intervenor Texas Gas Transmission Corp. Mr. George J. Meiburger, Washington, D. C., also entered an appearance for intervenor Texas Gas Transmission Corp. in Nos. 24517 and 24518. Mr. Reuben Goldberg, Washington, D. C., entered an appearance for petitioner in No. 24602. Mr. Charles F. Wheatley, Jr., Washington, D. C., was on the brief for in-tervenor American Public Gas Assn, in No. 24518. Before FAHY, Senior Circuit Judge, and ROBINSON and WILKEY, Circuit Judges. WILKEY, Circuit Judge: These two sets of cases, consolidated for review, involve a determination as to the impact of Section 441(a) of the Tax Reform Act of 1969, relating to the methods of depreciation for regulated utilities, on two types of utility property: (1) post-1969 expansion property and (2) pre-1970 and post-1969 non-expansion property. The impact of Section 441(a) on post-1969 expansion property — the subject of FPC Orders No. 404 and 404-A, issued, respectively, 15 May 1970 and 9 July 1970, and cases no. 24,-518 and 24,602 here — will be considered first, followed by a determination of its effect on pre-1970 and post-1969 non-expansion property — the subject of FPC Opinions No. 578 and 578-A and accompanying orders, issued 3 June 1970 and 21 July 1970, respectively, and cases no. 24,517 and 24,632 here. I. A. Congress specifically provided for the proper depreciation treatment of post-1969 utility expansion property in Section 441(a) of the Tax Reform Act of 1969 as follows: (A) Election as to new property representing growth in capacity. — If the taxpayer makes an election under this subparagraph within 180 days after the date of the enactment of this sub-paragraph in the manner prescribed by the Secretary or his delegate, in the case of taxable years beginning after December 31, 1970, paragraph (2)(C) [concerning liberalized depreciation with flow-through] shall not apply with respect to any post-1969 public utility property, to the extent that such property constitutes proper * ty which increases the productive or operational capacity of the taxpayer with respect to the goods or services described in paragraph (3) (A) and does not represent the replacement of existing capacity. This provision indicates that Congress intended to, and did, prescribe specifically the appropriate tax depreciation treatment for post-1969 expansion property of utilities such as is involved in the cases here. It permits a regulated utility such as Texas Gas Transmission Corporation, an intervenor in these cases, to make an election, within 180 days after enactment of this provision, not to have liberalized depreciation with flow-through apply with respect to its post-1969 expansion property. That is, such a method would no longer be considered a “reasonable allowance” for tax depreciation purposes within the meaning of the Internal Revenue Code of 1954. The legislative history accompanying Section 441(a) of the 1969 Tax Reform Act supports this interpretation. The report of the Senate Finance Committee states in relevant part: The [Senate] committee amendments, while in most respects the same as the House provisions, differ in one principal area. The amendments permit an election to be made within 180 days after the date of enactment of the bill for a utility covered by this provision to shift from the flow-through to the straight-line method, with or without the permission of the appropriate regulatory agency, or permit it with the permission of the regulatory agency to shift to the normalization method (that is, come under general rules of the bill). This election applies both as to new and existing property. . . . Since the company would no longer be permitted to use accelerated depreciation (unless the agency later permits it to normalize), the agency would not be able to impute the use of accelerated depreciation with flow-through. In conference, the election right was restricted to apply only to post-1969 expansion property. As the Conference Report indicates: The conference substitute (sec. 441 of the substitute and sec. 167(Í) of the code) follows the Senate amendment except that the special provision referred to in (e) above is stricken and the 180-day election (item (d), above) is modified to apply to new property and not to replacement property. Even in the case of new property, however, the right to change over from the flowthrough method is to be available only to the extent the new property increases the productive or operational capacity of the company. It is clear, then, that Congress intended to, and did in fact, provide regulated utilities such as Texas Gas with an option to abandon flow-through for rate-making purposes in regard to post-1969 expansion property and substitute in its place either (1) straight-line depreciation, with or without the permission of the relevant regulatory agency or (2) accelerated depreciation with normalization, with the permission of the appropriate regulatory agency. It is also clear that Congress intended thereby to preclude regulatory agencies from imputing flow-through to any regulated utility exercising this election with respect to its post-1969 expansion property. B. The basic issue in this set of cases, therefore, is whether the FPC was correct in its Orders No. 404 and 404-A in interpreting the Tax Reform Act of 1969 as depriving it of the power to impute the use of liberalized depreciation with flow-through for rate-making purposes to a utility making the election under Section 441(a) to abandon flow-through with respect to its post-1969 expansion property. Clearly, it is the duty of the FPC, under its Congressional mandate, the Natural Gas Act, to ensure the continued availability of natural gas in interstate commerce for eventual sale to consumers at the lowest practicable rater, As the Fifth Circuit had occasion to observe: The central principle in the regulation of the natural gas industry around which all ratemaking revolves is “the intention of Congress that natural gas shall be sold in interstate commerce for resale for ultimate public consumption ... at the lowest possible reasonable rate-consistent with the maintenance of adequate service on the public interest”. This is the language of Section 7(c) of the Natural Gas Act as originally enacted in 1938. The provision was deleted when the subsection was amended in 1942 but, as the Supreme Court has held, the amendment was not ■ intended to change the congressional purpose of the Act; the “primary aim of this legislation was to protect consumers against exploitation at the hands of natural gas companies.” Federal Power Commission v. Hope Natural Gas Company, 1944, 320 U.S. 591, 611, 64 S.Ct. 281, 291, 88 L.Ed. 333. . Again, as Justice Clark reiterated twenty-five years later: “The Act was so framed as to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges”. Atlantic Refining Company v. Public Service Commission, 1959, 360 U.S. 378, 388, 79 S.Ct. 1246, 1253, 3 L.Ed.2d 1312. . However, the FPC may not remain oblivious to the wishes of Congress as expressed in forms other than amendments to or deletions from the Natural Gas Act. By means of Section 441(a) of the 1969 Tax Reform Act, Congress has provided regulated utilities such as Texas Gas with an absolute right of election to abandon flow-through with respect to their post-1969 expansion property. Furthermore, we do not have the situation presented in Alabama-Tennessee Natural Gas Co. v. FPC, supra, where the court was able to find “no evidence that at the time Section 167 [of the Internal Revenue Code] was enacted Congress even focused on the problem in terms of reducing the dimensions of the Federal Power Commission’s regulatory responsibility to protect consumers from excessive rates. . . . ” Rather, investigation of the legislative history regarding Section 441(a) of the Tax Reform Act of 1969 reveals that Congress was well aware of the implications of permitting regulated utilities an election to abandon liberalized depreciation with flow-through with respect to their post-1969 expansion property. As such, the FPC was not remiss in the performance of its statutory duty in permitting Texas Gas to abandon flow-through in regard to its post-1969 expansion property, as expressly provided by the language of Section 441(a) of the 1969 Tax Reform Act. C. The FPC’s Orders No. 404 and 404-A, indicating that it would continue the policy adopted in Alabama-Tennessee Natural Gas Co., of deducting the amounts in the accrued deferred tax account from the rate base and not considering such balances as part of capitalization in rate proceedings before it, is a statement of policy based essentially on an interpretation of Section 441(a) of the 1969 Tax Reform Act. Thus, under the pertinent provisions of the Administrative Procedure Act, it was properly issued without notice or opportunity for hearing, since it was not the result of a rulemaking proceeding. While Memphis Light contends that Orders No. 404 and 404-A of the Commission denied them the benefits of liberalized depreciation with flow-through accounting and ratemaking in regard to their post-1969 expansion property, they misdirect their attack. Instead of the Commission’s orders here, what resulted in the denial of liberalized depreciation with flow-through was the election by Texas Gas to abandon such depreciation, as it was specifically entitled to do under Section 441(a) of the 1969 Tax Reform Act. Texas Gas made this election in a letter to the Commissioner of Internal Revenue dated 8 June 1970, a copy of which was transmitted to the FPC dated 10 June 1970. At this juncture, the only options available to the Commission were either to do nothing and thereby leave Texas Gas on straight-line depreciation or to permit it to use liberalized depreciation with normalization. The FPC chose the latter. The Commission’s Orders No. 404 and 404-A, then, were nothing more than statements of FPC policy interpreting the mandate of Congress as expressed in Section 441(a) of the Tax Reform Act of 1969. As such, they were clearly exempt from the notice and opportunity for hearing requirements for rulemaking provided under the Administrative Procedure Act. While it is true that the FPC’s interpretative rulings here may have significant economic consequences on Memphis Light and other ratepayers in the long run, such a statement of policy is specifically exempted by the Administrative Procedure Act from the need for prior notice or opportunity for a hearing: Except when notice or hearing is required by statute [not relevant here], this subsection does not apply — (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice. . D. The case law does not support the petitioners’ assertion that notice and opportunity for hearing were required in this set of cases — 24,518 and 24,602. While interested parties might argue the validity of the FPC’s interpretation of Congressional purpose as expressed in Section 441(a) of the Tax Reform Act of 1969, such an opportunity is not required by the Administrative Procedure Act pri- or to issuance of such interpretations by an administrative agency. The petitioners’ argument that the FPC, as a result of the issuance of its Orders No. 404 and 404-A, has changed its policy in Alabama-T-ennessee Natural Gas Co., is incorrect. Only those utilities that made the election provided by Section 441(a) of the 1969 Tax Reform Act to abandon flow-through with respect to their post-1969 expansion property are affected by the Commission orders here at issue. The case of Texaco, Inc. v. FPC is inapposite, since the switch from simple to compound interest which the Commission ordered in that case was one involving consideration of, inter alia, current interest rates and trends, the impace on individual companies and the effect of increased contingent liabilities on the ability of the companies affected to acquire new equity or debt capital. In contrast, the instant set of cases, aside from the question of the validity of the FPC’s interpretation of Section 441(a) of the 1969 Tax Reform Act, involved no need for further consideration by the Commission as to what regulatory policy would result in a lower rate for Memphis Light and other ratepayers. The impact of liberalized depreciation with normalization as opposed to that of straight-line depreciation — the only choice open to the FPC under the election provision for regulated utilities such as Texas Gas contained in Section 441(a) of the 1969 Tax Reform Act, had already been fully considered and resolved in prior cases in favor of liberalized depreciation with normalization. The other principal case relied upon by the petitioners here, National Motor Freight Traffic Association v. United States, is likewise inapposite. In that case, the Interstate Commerce Commission, after Congress had vested reparations authority in the courts in cases involving motor carriers, had announced an informal process for restoring to shippers past charges which were currently agreed by the carrier to have been illegal. This procedure did not relate to any substantive power specifically granted the ICC and the court in that case held that a rulemaking process was required to ascertain whether such authority existed in the first place and, if so, whether it should be exercised. In such a situation, unlike that presented by the set of cases at hand, the creation of procedures was an integral part of a substantive determination that could not be made without notice and opportunity for hearing. Here, however, since the only option open to the FPC was a choice between leaving a utility electing to abandon flow-through with respect to its post-1969 expansion property under Section 441(a) -of the 1969 Tax Reform Act on straight-line depreciation, permitting it to use liberalized depreciation with normalization, there was no need for pri- or notice or a hearing. Prior decisions of the Commission had already resolved this issue in favor of liberalized depreciation with normalization. II. The second set of cases — 24,517 and 24,632 — involves the validity of the FPC’s decision in its Opinions No. 578 and 578-A and accompanying orders, permitting Texas Gas to change from liberalized depreciation with flow-through to such depreciation with normalization in regard to its pre-1970 and post-1969 •nure-expansion property. Section 441(a) of the Tax Reform Act of 1969 amended the Internal Revenue Code of 1954 by adding subsection (1), “Reasonable allowance in case of property of certain utilities,” to Section 167 of the IRC. Section 441(a) distinguishes between two types of utility property: (1) pre-1970 and post-1969 non-expansion property and (2) post-1969 expansion property. With respect to the latter type, Section 441(a) permits utilities using liberalized depreciation with flow-through to elect within 180 days of the enactment of Section 441(a) to shift either to straight-line depreciation of their own volition or to liberalized depreciation with normalization with the permission of the appropriate regulatory agency. Texas Gas exercised this option with respect to its post-1969 expansion property and received the FPC’s permission to employ liberalized depreciation with normalization — the validity of which is treated in I., above. In the instant set of cases, the determination of whether the FPC was correct in permitting Texas Gas to shift from liberalized depreciation with flow-through to similar depreciation with normalization with respect to its pre-1970 and post-1969 non-expansion property requires, first, a review of Section 441 (a) and its legislative history to ascertain the intent of Congress here and, second, a consideration of the validity of the Commission’s decision in light of this Congressional intent. A. Section 167(a) of the Internal Revenue Code of 1954 provides that a taxpayer is entitled to a “reasonable allowance” for a tax depreciation deduction. Section 441(a) of the 1969 Tax Reform Act specifies the appropriate methods for computing this “reasonable allowance” for pre-1970 and post-1969 non-expansion property in the case of regulated utilities such as Texas Gas. Under Section 441(a), a “reasonable allowance” may be computed in either of two ways: one, a “subsection (Z) method,” refers to the straight-line method of depreciation, while the other is “the applicable 1968 method for such property,” but “only if the taxpayer uses a normalization method of accounting.” Section 441(a), however, provides an exception to the normalization requirement for using the second method by allowing a utility using the flow-through method to continue doing so. The right conferred on regulated utilities such as Texas Gas by Section 441(a) of the 1969 Tax Reform Act to make an election within 180 days of the enactment of Section 441(a) to shift from liberalized depreciation with flow-through to either straight-line depreciation or, with the approval of the appropriate regulatory agency, liberalized depreciation with normalization with respect to their post-1969 expansion property, as discussed in I., swpra, does not, however, apply to pre-1970 and post-1969 non-expansion property. The legislative history accompanying the enactment of Section 441(a) clearly reveals the intent of Congress that the right of election provided utilities to shift from liberalized depreciation with flow-through either to straight-line or to liberalized depreciation with normalization be confined simply to post-1969 expansion property. While the progress of Section 441(a) through both houses of Congress and in conference reveals the existence of differences as to what types of property should be made eligible under the election provision, the final version of the bill limits the applicability of the right of election to post-1969 expansion (non-replacement) property alone. At the first stage, the House Report indicated: Your committee’s bill provides that, in the case of existing property, the following rules are to apply: (1) If straight line depreciation is presently being taken, then no faster depreciation is to be permitted as to that property. (2) If the taxpayer is taking accelerated depreciation and is “normalizing” its deferred taxes, then it must go to the straight line method unless it continues to normalize as to that property. (3) If the taxpayer is taking accelerated depreciation and is flowing through to its customers the benefits of the deferred taxes, then the taxpayer must continue to do so, unless the appropriate regulatory agency permits a change as to that property. U.S.Code Cong. & Admin. News, p. 1783. Thus, under the House version of the bill, Texas Gas, since it had been using accelerated depreciation with flow-through, would have been required to continue doing so with respect to its “existing” (including replacement) property unless the Commission permitted otherwise. If this had been the law enacted, the Commission’s and Texas Gas’ position here would have been clearly justified. But, as we shall see, the law actually passed was significantly changed. The bill as reported by the Senate Finance Committee gave regulated utilities using liberalized depreciation with flow-through an election to abandon that method of depreciation both for “pre-1970” property (a change from “existing” property in the House version) and “post-1969” property (“other” property in the House bill). The Senate Report states in regard to the altered right of election: The [Senate] committee amendments, while in most respects the same as the House provisions, differ in one principal area. The amendments permit an election to be made within 180 days after the date of enactment of the bill for a utility covered by this provision to shift from the flow-through to the straight-line method, with or without the permission of the appropriate regulatory agency, or permit it with the permission of the regulatory agency to shift to the normalization method (that is, to come under general rules of the bill). This election applies both as to new and existing property. U.S.Code Cong. & Admin.News p. 2206. Under the Senate version of the bill, therefore, Texas Gas would have been permitted to shift from liberalized depreciation with flow-through either to straight-line depreciation or, with the FPC’s approval, to liberalized depreciation with normalization. However, in conference, it was agreed that this right of election would be restricted to apply to post-1969 •expansion property only. The Conference Report states: 1. Depreciation allowed regulated industries (sec. 167 of Due code) The House bill provides that in the case of certain regulated industries (the furnishing or sale of . . . gas through a local distribution system, . . . and transportation of gas by pipeline) a taxpayer is not permitted to use accelerated depreciation unless it “normalizes” the current income tax reduction resulting from the use of such accelerated depreciation. . . . This rule is not to apply in the case of a taxpayer that is at present flowing through the tax reduction to earnings for purposes of computing its allowable expenses on its regulated books of account. Also, if the taxpayer is now using straight line depreciation as to any public utility property it may not change to accelerated depreciation as to that property. The Senate amendment makes the following changes in the House bill: (d) an election is permitted to be made within 180 days after the date of enactment by a company at present on flowthrough to come under the rules of the bill .... The conference substitute (sec. Ml of the substitute and sec. 167(1) of the code) follows the Senate amendment •except that the special provision referred to in (e) above is stricken and the 180-day election (item (d), above) is modified to a/pply to new property and not to replacement property. Even in the case of new property, however, the right to change over from the flow-through method is to be available only to the extent the new property increas es the productive or operational capacity of the company. U.S.Code Cong. & Admin.News, p. 2427. Thus, Texas Gas is unable to invoke the election provision of Section 441(a) to abandon liberalized depreciation with flow-through with respect to its “existing” (including replacement) property for two reasons: first, since Texas Gas has been employing liberalized depreciation with flow-through, it is specifically prohibited, under the final version of the bill, from abandoning such depreciation (see the second paragraph of the Conference Report, supra); and, second, since the right of election was restricted to apply to post-1969 expansion property only, Texas Gas may not seek to circumvent this restriction by applying it to its pre-1970 and post-1969 wcm-expansion property — the subject of this set of cases (24,517 and 24,632). What the Commission does by its decision in this set of cases, then, is to produce an effect precisely contrary to that envisioned by Congress in enacting the Tax Reform Act of 1969. This effect was considered by Congress in its deliberations on the appropriate scope for the right of election provided by Section 441 (a), both in terms of its impact on rates and on tax revenues, and was specifically rejected. The Report of the House Committee on Ways and Means states: Consideration has been given to suggestions by the Federal Power Commission and others that regulated utilities no longer be permitted to use a method of depreciation other than straight line. However, your committee concluded that, in too many eases, this would place regulated utilities at an unfair competitive disadvantage, both in terms of the sale of their products or services and their attractiveness to equity investors. Also, this would result in prompt, substantial, and widespread utility rate increases. Accordingly, your committee has determined in general to “freeze” the current situation regarding methods of depreciation in the case of those companies in what are, by and large, the more healthy utility industries The Senate Report agreed with this perspective, stating in relevant part: Accordingly, the committee agrees with the House that it is appropriate to in general [sic] “freeze” the current situation regarding methods of depreciation in the case of those companies in what are, by and large, the more flourishing utility industries. U.S.Code Cong. & Admin.News, p. 2204. The Senate Report, agreeing that a company using straight-line depreciation with normalization could not shift to flow-through under the bill, stated, with specific reference to utility companies such as Texas Gas which have been using liberalized depreciation with flow-through, “[o]ther companies — those that now flow through, as well as those in other regulated industries — are not limited by this general rule of the bill.” Also, as the Summary of the Bill, prepared by the staffs of the Joint Committee on Internal Revenue Taxation and the Committee on Finance, observes with respect to the impact of Section 441(a) on revenues as well as rates: The bill substantially forestalls the entire revenue loss that the continuation of existing trends would have made almost inevitable. It does so in a way that (with very few exceptions) will require no increase in utility rates because of the tax laws, since by and large, it merely takes the various regulatory situations as it finds them and freezes those situations. There is nothing in the Tax Reform Act of 1969, then, which modifies the Commission’s duty under the Natural Gas Act to require regulated utility compañíes such as Texas Gas, which had been using liberalized depreciation with flow-through with respect to their pre1970 and post-1969 non-expansion property, to set rates which reflect actual expenditures alone with respect to such property. According to Congress, the only appropriate tax allowance for rate-making purposes for a company such as Texas Gas, which has been using liberalized depreciation with flow-through with respect to its pre-1970 and post-1969 non-expansion property, is the income taxes actually paid. B. The FPC has argued that there is nothing in this Tax Reform Act indicating an intent on the part of Congress to alter the Commission’s power to exercise its informed judgment as to what method of accounting can properly serve as the basis of ratemaking, and to weigh the cost to the consumer and the necessity to preserve a viable industry. The FPC urges that had Congress had such an intent, Congress would have manifested it by an amendment to the Natural Gas Act, not to a Revenue Act. This overlooks the undeniable fact that methods of calculating depreciation are relevant both for taxation and ratemak-ing purposes. Congress here dealt with depreciation in the context of a revenue measure, but all its deliberations — particularly the committee reports of both houses, the conference committee report, and most significantly, the changes made in the bill at different stages — show its keen awareness of the measure’s impact on the federal revenue, the natural gas industry, and the consumers. It may well be that some of the FPC’s regulatory discretion has been lost by the enactment of this law; in effect, Congress has pondered the question, and has exercised what formerly was the FPC’s prerogative for it. The fact that Congress did so in the context of a Tax Reform Act cannot vitiate what Congress enacted. To hold otherwise would be to rule that the carefully considered changes, granting an election to the company with respect to its expansion property but eliminating any choice by either company or FPC with respect to the company’s wow-expansion property, were meaningless. The rule here urged by the FPC and Texas Gas is similar to that policy proposed by Chairman White, and this was rejected. We here give effect to what Congress did; albeit cloaked in a revenue act, a statutory mandate in regard to the calculation of depreciation has an effect on the FPC’s power to exercise its independent judgment as to what best will serve industry and consumers. Our holding, however, should not be taken to mean that Section 441(a) of the Tax Reform Act of 1969 deprives the Commission in all cases of its discretion under the Natural Gas Act to permit utilities to abandon flow-through. There might be extraordinary circumstances in which Section 441(a), taken in conjunction with the mandate of the Natural Gas Act, should not be construed to prevent the FPC in its underlying responsibility of protecting consumer interests from finding that those interests would be furthered by permitting the abandonment of flow-through. It is clear, however, that such consumer interests would not be furthered by permitting Texas Gas to abandon flow-through in the circumstances presented by the case at bar. III. Accordingly, the decision of the Federal Power Commission in its Orders No. 404 and 404-A with respect to the post-1969 expansion property of Texas Gas— the subject of cases no. 24,518 and 24,602 —is affirmed. However, the action of the Commission in its Opinions No. 578 and 578-A and accompanying orders in regard to Texas Gas’ pre-1970 and post-1969 wow-expansion property — the subject of cases no. 24,517 and 24,632 — is vacated and remanded to the Commission for action in accordance with this opinion. So ordered. . fInt.Rev.Code of 1954, § 167 (i), as amended Publ.L. 90-26, §§ 1, 2(b), 81 Stat. 57, 58 (1967); Publ.L. 91-172, § 521(a), (d), 83 Stat. 625, 649, 653 (1969). . Section 441(a) of the 1969 Tax Reform Act defines “pre-1970” property as “property which was public utility property in the hands of any person at uny time before January 1, 1970.” Int.Rev.Code of 1954, § 167(Z) (3) (B). Property which is not pre-1970 is considered “post-1969” property. Int.Rev.Code of 1954. § 167(Z) (3) (O). “Expansion” property is the term employed to denote that property “which increases the productive or operational capacity of the taxpayer,” while “non-expansion” property refers simply to that property which replaces the existing plant of a taxpayer. Int. Question: What is the state of the first listed state or local government agency that is an appellant? 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_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. CRENLO, DIVISION OF GF BUSINESS EQUIPMENT, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 75-1132. United States Court of Appeals, Eighth Circuit. Submitted Oct. 17, 1975. Decided Dec. 31, 1975. Rehearing and Rehearing En Banc Denied Feb. 18, 1976. J. Dennis O’Brien, LeFevere, Lefler, Hamilton & Pearson, Minneapolis, Minn., for petitioner. Marjorie S. Gofreed, Atty., N. L. R. B., Washington, D. C., for respondent. John C. Miller, Acting General Counsel, John S. Irving, Deputy General Counsel, Elliott Moore, Deputy Associate General Counsel, and Allison W. Brown, Jr., Atty., N. L. R. B., Washington, D. C., appeared on the brief. Before CLARK, Associate Justice, and LAY and ROSS, Circuit Judges. Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation. PER CURIAM. This petition for review of an order of the National Labor Relations Board involves the discharge of six of petitioner’s employees for successive partial strikes in violation of Section 8(a)(1) of the National Labor Relations Act and the discharge of one employee for an alleged violation of petitioner’s “no solicitation” rule in violation of Section 8(a)(1) as well as Section 8(a)(3) of the Act. The issue rests upon determination of facts made by the Board in its findings. The Facts The petitioner, Crenlo, Division of GF Business Equipment, Inc. (Crenlo), operates two plants in Rochester, Minnesota, where it manufactures sheet metal products, including metal cabinets and tractor cabs. On July 23, 1973, Local 161 of the General Drivers and Warehousemen and Helpers, International Brotherhood of Teamsters, petitioned the Board for an election at the Crenlo plants, and by stipulation an election was scheduled for September 12, 1973. On August 15, 1973, Crenlo announced that its annual wage increase would be 25 cents per hour, effective August 18, for all production employees. There was some dissatisfaction at the increase, and some of the dissidents at the plant located at 1600 Fourth Avenue, N.W., Rochester, requested an immediate meeting with Crenlo management to discuss it. A meeting with Jerry Wollenburg, Cren-lo’s foreman, was arranged by the pressmen. At this meeting the pressmen indicated that the increase should have been 50 cents because of the increased cost of living. Wollenburg promised to present the employee position to the Crenlo management and then get back to the pressmen. About 1:30 p. m., Wol-lenburg was told by a pressman that work would stop at 2 p. m. if management did not “come down.” Wollenburg, who had reported his previous noon meeting to Crenlo’s top management, also reported this second conversation. He was instructed to tell any employee who stopped work to either return or punch out, leave the plant, and report to the personnel office the next morning for disciplinary action. At 2 p. m. the pressroom employees stopped work and demanded an answer from Wollenburg. He followed his instructions and told them to return to work or punch out, leave the plant, and report to Personnel subject to disciplinary action. Some of the employees reported back to work. Some 26, however, were upset and angry that top management would not appear and chose to remain idle and repeatedly demand that top management come down to explain its position. Subsequently, they asked Wollenburg why no response was forthcoming and again requested that top management come down to talk over the controversy. Wollenburg explained that top management was not in the plant and that the plant manager, McKibben, could not act in their absence, although he was much concerned over the employees’ demands. The controversy continued with the employees debating among themselves whether to return to work and finally, at about 2:55 p. m., they decided “to go back to work and give [management] more time to think about it and see what would happen in the morning.” By 3 p. m. all of the employees had returned to work, but some indicated that another work stoppage would occur at 9:30 a. m. the following day. The night or second shift of employees came on at 3:30 p. m. Shortly before that time, a first shift employee, Archie Asleson, who had played a leadership role in the first shift activity, told Wol-lenburg: “Today it was just the press-room. Tomorrow the welders are with us.” After the first shift went off work, they held a meeting and voted to stop work again at 9:30 a. m. the next morning to wait for top management to come down and discuss their wage demands. Some second shift employees attended the meeting. Wollenburg met with Plant Manager McKibben to determine if there were any ringleaders behind the action of the employees and if there were, who they might be. At this meeting they agreed as to the identity of the instigators of the trouble. Those agreed upon were the same ones who were subsequently terminated. The night or second shift workers discussed the day’s activity during their dinner break at 6 p. m. and coffee time at 9 p. m. They voted to come in the next morning and give their support to the first shift in an effort to get top management to respond to their wage demands. A check of the plant by management at 7 p. m. indicated that some of the welders were angry or worried about their jobs. Their work might be curtailed if the pressroom went out and production of parts ceased. One welder reputedly waived a sledge hammer and said, “If those bastards come down here, I’ll cave their heads in.” On Friday, August 17, the first shift returned on schedule and began to work. Since rumors continued that there would be a work stoppage at 9:30 a. m., the top management met about 9 a. m. in General Manager Bouffard’s office. Those present included Bouffard (General Manager, Guidenger (Personnel Manager), McKibben (Plant Manager), Stevens (General Foreman) and Wollenburg (Foreman). They discussed the previous day’s activity, and Wollenburg furnished the group the names of the ringleaders in both shifts. Bouffard told Wollen-burg to tell the employees to go back to work and if they did not do so, they were to punch out and report to Personnel on Monday morning, subject to disciplinary action. The first shift employees gathered together at 9:30 a. m. in the pressroom. At about the same time, about 20 second shift employees, contrary to orders, entered the plant and began talking with the first shift employees in the work area. When Wollenburg ordered all of the first and second shift employees (about 60) to either return to work or punch out and leave, only 7 or 8 first shift employees returned to work. At 9:45 a. m., top management notified 6 of the employees that they were being terminated because of their leadership roles in the work stoppages. The following Monday, a night or second shift employee, Adrian Brakke, was terminated because of his activity on the 17th and also because he had violated a Company rule by soliciting an employee to join the Union during working hours. The Regional Director, after investigation, refused to issue a complaint against Orenlo. The General Counsel of the Board reversed, however, and the two complaints were filed. After being consolidated, the cases were heard before an Administrative Law Judge, and he found violations of Sections 8(a)(1) and 8(a)(3) of the Act. The Board affirmed. We have examined the record and find that, with one exception, substantial evidence on the whole supports the findings of the Board and that the applicable law is with the Board. Accordingly, we direct enforcement of its order, except as to Adrian Brakke. The Applicable Law We start with the proposition that Section 7 of the Act guarantees employees the right to join together to seek better terms, tenure, or conditions of employment. NLRB v. Washington Aluminum Company, 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962). Here the employees remained on company property in a sincere effort to meet with the management concerning a protest over wages. This they were entitled to do without being deprived of the protection of the Act. NLRB v. Case, J. I., Co., 198 F.2d 919, 922 (8th Cir. 1952); NLRB v. Kennametal, Inc., 182 F.2d 817, 819 (3d Cir. 1950). Under the circumstances here, the Board reasonably and correctly held that the employees did not forfeit the protection of the Act by engaging in two successive in-plant protests of brief duration. Foreman Wollenburg led the employees to believe what he said, that “Somehow I’ll get somebody down here I’ll do what I can.” When nothing happened, the employees went back to work. However, on the next morning, instead of the top management coming down, Wollenburg issued the same old orders to go back to \york or suffer punishment. In only a quarter of an hour, the three top officials came down, but, having already decided to terminate six of the employee leaders, did not discuss the issue. Instead the termination orders were announced. It appears clear to us that the first shift" employees — unorganized as they were — had banded themselves together in a legitimate effort to present their grievances about wages to the management. Their action had no appreciable impact on company production and none was shown. There was no defiance, no violence, no unlawful conduct; nor were there other sporadic in-plant work stoppages or refusals to work, either in the regular shifts or overtime. All that the employees asked was that management meet and discuss wages. The employees were entitled to have their protest heard and to hear the reaction of management. On the morning of the 17th, they were but reacting individually to the Company’s misrepresentations, its dilatory tactics, and its threats to take disciplinary action rather than engage in frank discussion. The first shift employees who participated in the brief work stoppage should not have been discharged. Accordingly, we affirm the Board’s findings and order the enforcement of the Board’s order with respect to the discharge of the five first shift employees. We have more difficulty in finding substantial evidence on the record as a whole to support the Board’s finding that Adrian Brakke was discriminatorily discharged in violation of Sections 8(a)(1) and 8(a)(3) of the Act. This is especially true in light of the Board’s determination that Terry Rich, another second shift employee, could be discharged under the Act. Both Rich and Brakke were active union organizers. Both were singled out by management as leaders of the second shift meetings on August 16. Both violated the Company’s plant rule by coming into the work areas during the first shift. The Board determined that Rich should not have gone into the pressroom and that to do so was unprotected activity. Although Brakke also had wrongfully gone into the working areas on the morning of the 17th, the Board refused to uphold his discharge, apparently because of a number of facts differing from Rich’s case. Brakke was not discharged until the next working day. In the meanwhile, the Company received a report that he had violated its “no solicitation” rule by asking another employee to sign a union card on company time. When the management realized that Brakke had been “into this as much as the other fellows” and that he had also broken both the rule that forbade his coming into work areas during the first shift and the rule that forbade soliciting on company time, Brakke was discharged. The Board found the discharge discriminatory because it involved in part both a valid and invalid ground. The Board reached this decision by determining that the “no solicitation” rule was overbroad and vague. In support of its position on appeal, the Board recites the long-recognized principle that it is no defense to a claim of discriminatory discharge that the discharge may have had another valid ground. The Board directs our attention to three cases: Reliance Insurance Companies v. NLRB, 415 F.2d 1, 7 (8th Cir. 1969); Mead and Mount Construction Co. v. NLRB, 411 F.2d 1154, 1155-1157 (8th Cir. 1969); and Cupples Co., Manufacturers v. NLRB, 106 F.2d 100, 117 (8th Cir. 1939). In Cupples, the court upheld the Board’s determination that, in a dispute between an affiliated and an independent union the company’s business reasons for shutting down its match department could not overcome the discrimination evident in its failure to rehire members of the affiliated union. In Reliance, the court refused to uphold the Board’s determination that a failure to hire was based upon both sound business reasons and discrimination for past union activity. It held that the business reasons were the significant motive for the failure to hire and that no union animus had been substantially proved on the record as a whole. In Mead, the court refused to uphold a Board determination that the discharge of a steward had been partly for discriminatory reasons in violation of the Act. The court there determined that no evidence of union animus had been shown. Unfortunately, none of these cases seem apposite here where the discharge rests upon two entirely separate and independent grounds, one of which the Board has independently used and approved. The first ground, discharge for going into the work areas during the first shift, is the same conduct upon which the discharge of the only other discharged second shift employee, Terry Rich, was predicated. The second ground, violation of the “no solicitation” rule, was on its own an illegal basis for discharge, according to the Board’s interpretation of the case law. Here, however, the Board by upholding Rich’s discharge, has acted despite whatever union animus the rule’s enforcement may have demonstrated. Both Rich and Brakke were active union organizers among the second shift employees, and both had wrongfully entered the press room along with other second shift employees on the morning of the work stoppage. Yet only Rich’s discharge was approved by the Board. The sole difference between the two was the intervening passage of a weekend in the receipt of the evidence of solicitation by Brakke on company time. By approving Rich’s discharge, the Board made the law of the case, i. e., union animus does not invalidate a discharge for engaging in unprotected activity. The irrelevance of the general rule, that a discharge based partially upon valid grounds and partially upon invalid grounds must be reversed as discriminatory, is apparent. Here the Board’s own findings and determination fixed the independence of the first ground for Brakke’s discharge. The validity of the Company’s “no solicitation” rule is, therefore, not involved and we do not reach it. When the record in a Board determination presents facts that propose conflicting inferences, it is not for us to disagree with the findings of the Board. NLRB v. Whitin Machine Works, 204 F.2d 883, 887-88 (1st Cir. 1953). However, when the Board’s determination presents- conflicting results unsupported by substantial evidence on the record as a whole, the decision is suspect. By allowing Rich’s discharge to stand, the Board determined that, at least in this case, the second shift’s intrusion during first shift working hours was an adequate, independent basis for discharge. Consistency requires that Brakke’s discharge too must be upheld. Accordingly, we affirm so much of the Board’s order as pertains to the five first shift employees and order its enforcement. As to Brakke, we grant the petition for review and reverse the determination made by the Board that he must be reemployed. It is so ordered. . 29 U.S.C. § 158: (a) It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . Among the six terminated that morning was Terry Rich, a second shift employee who had been active at the first shift meeting the previous day. The Board upheld his termination because he had violated a plant rule by coming on the premises during the first shift. 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_r_natpr	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 "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Rachel R. BLALOCK, Appellee, v. Elliot L. RICHARDSON, Secretary of the Department of Health, Education and Welfare, Appellant. No. 72-1187. United States Court of Appeals, Fourth Circuit. Argued June 8, 1972. Decided Aug. 28, 1972. Judith S. Feigin, Atty., Dept, of Justice (L. Patrick Gray, III, Asst. Atty. Gen., Kathryn H. Baldwin, Atty., Dept, of Justice, Washington,. D. C., and John K. Grisso, U. S. Atty., Greenville, S. C., on brief), for appellant. James B. Stephen, Spartanburg, S. C. (George H. Thomason, Spartanburg, S. C., on brief), for appellee. Before BOREMAN, Senior Circuit Judge, and CRAVEN and BUTZNER, Circuit Judges. BOREMAN, Senior Circuit Judge: The Secretary of Health, Education and Welfare appeals from a decision of the district court reversing the Secretary’s administrative denial of disability benefits to claimant, Rachel R. Blalock. Mrs. Blalock applied for a period of disability and disability benefits under Sections 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C.A. §§ 416(i), 423, alleging rheumatoid arthritis in her hands. Upon initial denial of her application, Mrs. Blalock requested and was granted a hearing at which she was represented by counsel. The decision of the hearing exarqiner was also adverse to claimant whereupon she filed additional evidence in the form of medical reports which were not before the examiner, in support of her request for reconsideration by the Appeals Council. The Council denied her request after consideration of the record and new evidence. Pursuant to Section 205(g) of the Act, as amended, 42 U.S.C.A. § 405(g), claimant sought judicial review in the United States District Court. It is from the decision of that court awarding her disability benefits that the Secretary appeals. Bearing in mind the limited nature of the court’s power of review we conclude that the judgment below cannot be upheld. Claimant had the burden of proving her disability to the satisfaction of the Secretary, under a two-fold test. First, there must be a medically determinable physical or mental impairment, and second, the impairment must be such as to render her unable to engage in substantial gainful employment. 42 U.S.C.A. § 423(d); 20 CFR §§ 404.-1501(b), 1532(b). Hayes v. Gardner, 376 F.2d 517, 520 (4 Cir. 1967); Laws v. Celebrezze, 368 F.2d 640, 643 (4 Cir. 1966). See, Brown v. Celebrezze, 367 F.2d 455, 456 (4 Cir. 1966); Cyrus v. Celebrezze, 341 F.2d 192, 194 (4 Cir. 1965); Thomas v. Celebrezze, 331 F.2d 541, 545 (4 Cir. 1964). She had the additional problem here of proving that her claimed disability existed prior to June 30, 1964, the date she last met the special earnings requirement. 42 U.S.C.A. § 423(c); 20 CFR Subpart B, §§ 404.101-120. Flack v. Cohen, 413 F.2d 278, 279 (4 Cir. 1969); Brown v. Celebrezze, 367 F.2d 455, 457 (4 Cir. 1966). See, Brandon v. Gardner, 377 F.2d 488, 491 (4 Cir. 1967). The scope of judicial review by the federal courts is specific and narrow under Section 205(g) of the Act. That section provides that “. . . the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . .” The fact that the record as a whole might support an inconsistent conclusion is immaterial, for the language of § 205(g) precludes a de novo judicial proceeding and requires that the court uphold the Secretary’s decision even should the court disagree with such decision as long as it is supported by “substantial evidence.” Whiten v. Finch, 437 F.2d 73, 74 (4 Cir. 1971); Rome v. Finch, 409 F.2d 1329, 1330 (5 Cir. 1969); Hayes v. Gardner, 376 F.2d 517, 520 (4 Cir. 1967). The phrase “substantial evidence” has been defined by this court to be: “. . evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.’ ” Laws v. Celebrezze, 368 F.2d 640, 642 (4 Cir. 1966). Accord, Richardson v. Per-ales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ; Kyle v. Cohen, 449 F.2d 489, 492 (4 Cir. 1971); Daniel v. Gardner, 404 F.2d 889, 890, n.1 (4 Cir. 1968); Hayes v. Gardner, 376 F.2d 517, 520 (4 Cir. 1967); Thomas v. Celebrezze, 331 F.2d 541, 543 (4 Cir. 1964). There are four elements of proof to be weighed in determining whether there is substantial evidence to support the Secretary’s decision: (1) the objective medical facts; (2) the diagnoses and expert opinions of treating and examining physicians on subsidiary questions of fact; (3) subjective evidence of pain testified to by the claimant and corroborated by family and neighbors; (4) the claimant’s educational background, work history and present age. Underwood v. Ribicoff, 298 F.2d 850, 851 (4 Cir. 1962). Accord, Lackey v. Celebrezze, 349 F.2d 76, 77 (4 Cir. 1965); Dillon v. Celebrezze, 345 F.2d 753, 755 (4 Cir. 1965); Jenkins v. Celebrezze, 335 F.2d 6, 8 (4 Cir. 1964); Thomas v. Celebrezze, 331 F.2d 541, 545 (4 Cir. 1964). Claimant originally alleged rheumatoid arthritis in her hands as the basis of her disabling impairment. However, all evidence introduced at the hearing upon which the district court based its decision was that she was permanently disabled due to a severe neurosis coupled with a grossly inadequate personality. The court stated: “The Secretary’s decision is not supported by substantial evidence. A thorough review of the medical data in the record reveals that the plaintiff has suffered from a chronic severe mental impairment since 1954 and that the impairment has continued to the present. Medical reports from Spartanburg General Hospital disclose that in 1954 plaintiff suffered from emotional hysteria and a guilt or escape complex. The treating physician reported that the plaintiff seemed emotionally unsound and didn’t seem to know when to laugh or cry.” Mrs. Blalock is thirty-nine years of age and attended junior college for slightly over one year. Prior to the onset of her alleged disability, she held a variety of jobs including work in an automobile club, a shirt manufacturing plant, a laundry, and from 1959 to 1961 at the John Dritz Company packaging sewing aids even though she claimed that the rheumatoid arthritis was disabling on March 31, 1960. In August of 1954, Mrs. Blalock, then Rachel Rollins, was admitted to Spartan-burg General Hospital with a provisional diagnosis of endometriosis. The examining physician, Dr. Smart, in noting his observations, stated in the medical record that it was “probably emotional hysteria; guilt or escape complex.” Nonetheless, a dilation and curettage was performed. The existence of an actual physical source of her problem was supported by a postoperative report of the surgeon who performed an appendectomy on claimant in October of 1954. In that report he stated that she suffered from a par ovarian cyst and possible endometriosis of the right fallopian tube and ovary. In December of 1954 claimant was again admitted to the hospital with a diagnosis of thrombophlebitis. Once again the examining intern, this time a Dr. Smith, felt that the cause of her trouble was “more likely hysteria.” It was obviously on these reports not in evidence before the hearing examiner that the district court based its decision to overturn the Secretary’s denial of benefits. However, this evidence is merely of a cumulative nature indicating that Mrs. Blalock had the beginnings of an emotional impairment two years earlier than previously thought but it does not indicate a degree of severity necessary to sustain a finding of a period of disability under the Act prior to the expiration of her insured status. Mrs. Blalock’s family physician from 1956 until 1961 stated in a letter that he had seen her infrequently and always in connection with a physical ailment, and while he had noted an element of hysterical conversion, it was not marked at the time. Emotional instability is not thereafter evidenced until 1964. Mrs. Bla-lock’s chiropractor, who was treating her for a spine problem not diagnosed by her physicians, stated in a letter that he found her to be very nervous and despondent at times and that she had at one time talked of taking her life. This falls far short of proof of a disability which would render her incapable of engaging in “substantial gainful employment.” Claimant relied heavily on the testimony, given in 1970, of Dr. Moody, the physician who admitted her to the hospital in December of 1964, six months after her insured status had expired, that it “was quite evident that her intense and extreme anxiety was not of sudden onset but went back probably many years.” This testimony was in serious conflict with the medical records made by Dr. Moody in 1964, in which he reported that she suffered from acute anxiety (i. e., short-term) and that she responded favorably to treatment that indicated a moderate attack, and was released in “good” condition. In choosing to disregard Dr. Moody’s testimony as the product of a “somewhat faulty memory,” the hearing examiner was functioning as the trier of fact whose duty it is to resolve conflicts in the evidence. Claimant contends that the evidence of an earlier onset, coupled with her eventual decline to permanent disability, supported a finding that she was disabled prior to 1964. Acceptance of such contention would require that the medical testimony be interpreted as proving that her mental deterioration was accomplished between eight and ten years after the first symptoms were recorded. Such an interpretation is not compelled, as shown by the Medical Advisor, Dr. Galloway, who testified: “. . . she had this inadequate personality, as far as the record indicates, I think essentially life-long; but I don’t think from the record that we have a significant degree of evidence of a significant degree of psychoneurosis until well after 1961. We have some evidence of it then; we have evidence in 1964, but we don’t have those intervening years, the time during the so-called critical period.” (Emphasis added.) It is evident, therefore, that Dr. Galloway acknowledged the probable existence of symptoms earlier than 1956 but concluded that the impairment had not • reached a disabling stage prior to expiration of Mrs. Blalock’s insured status. The new evidence offered by claimant only served to support Dr. Galloway’s diagnosis that her illness was “gradual and progressive.” We are of the opinion that the decision of the Secretary was supported by “substantial evidence” and that the judgment of the district court must be set aside. Reversed. . 20 CFR § 404.947: The Appeals Council may dismiss . . . or, in its discretion, deny or grant a party’s request for review of a hearing examiner’s decision .... . 20 CFR § 404.943 provides that evidence not before the examiner may not be received by the Appeals Council unless it appears to the Council that such additional information “may affect its decision.” . The burden is on claimant to prove her disability to the Secretary, though not beyond a reasonable doubt. Cyrus v. Cele-brezze, 341 F.2d 192, 195 (4 Cir. 1965) ; Thomas v. Celebrezze, 331 F.2d 541, 545 (4 Cir. 1964) ; Miller v. Richardson, 325 F. Supp. 91, 92 (S.D.W.Va.1971). . A review of the Secretary’s decision must be made on the record as a whole. Flack v. Cohen, 413 F.2d 278, 279 (4 Cir. 1969). . Thomas v. Celebrezze, 331 F.2d 541, 543 (4 Cir. 1964) ; Snyder v. Ribicoff, 307 F.2d 518, 520 (4 Cir. 1962). . Harris v. Richardson, 450 F.2d 1099, 1101 (4 Cir. 1971) ; Flack v. Cohen, 413 F.2d 278, 279 (4 Cir. 1969) ; Thomas v. Cele-brezze, 331 F.2d 541, 543 (4 Cir. 1964). . Dr. Galloway, the Medical Advisor, stated that the medicine prescribed for the attack indicated that it was of moderate severity. . Richardson v. Perales, 402 U.S. 389, 399-400, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ; Thomas v. Celebrezze, 331 F.2d 541, 543 (4 Cir. 1964) ; Snyder v. Ribicoff, 307 F.2d 518, 520 (4 Cir. 1962). . There is little doubt that Mrs. Blalock is now disabled within the meaning of the Act but there was no positive evidence of this until she was interviewed by a Psychiatrist, Dr' Doss’ ln 1970’ six years after her in' sured status expired’ Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_treat	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. UNITED STATES of America, Plaintiff-Appellant, v. Charles DAVIS, individually and on behalf of all others similarly situated, Defendant/Third-Party Plaintiff-Appellee, v. Edward DERWINSKI, or his successor, Administrator of the Veterans Administration, Third-Party Defendant-Appellant. No. 91-1678. United States Court of Appeals, Seventh Circuit. Argued Jan. 9, 1992. Decided April 3, 1992. Order, April 20, 1992. Rehearing and Rehearing En Banc Denied May 18, 1992. John E. Fryatt, U.S. Atty., Chris R. Larsen, Asst. U.S. Atty., Office of the U.S. Atty., Milwaukee, Wis., Mark Stern, Malcolm L. Stewart (argued), Department of Justice Civ. Div., Appellate Section and Ann Southworth, U.S. Atty., Department of Justice, Civ. Div., Washington, D.C., for the U.S. and Edward Derwinski, or his successor, Administrator of the Veterans Administration. David Leen (argued), Leen & Moore, Seattle, Wash, and Charles H. Barr, Milwaukee, Wis., for Charles Davis, individually and on behalf of all others similarly situated. Alan Lee and James E. Doyle, Atty. Gen., Office of the Atty. Gen., Wisconsin Dept, of Justice, Madison, Wis., for the State of Wis. Before CUDAHY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge. ESCHBACH, Senior Circuit Judge. Wisconsin’s real estate foreclosure law allows lenders to choose between two different foreclosure routes. Route one gives the borrower a long redemption period but allows the lender to preserve its right to collect a deficiency judgment from the borrower. Route two provides for expedited foreclosure but requires the lender to fore-go its right to a deficiency judgment. This case involves an attempt by the Department of Veterans’ Affairs (VA) to exercise its federal indemnity right to seek reimbursement from a veteran for a loan guaranty payment the VA made to a private lender on the veteran’s behalf after the veteran’s property was foreclosed by the lender. The question is whether the VA retains its federal indemnity right even though it allows a lender to choose route two, that is, expedited foreclosure and waiver of deficiency. For the reasons below, we hold that the VA may exercise its indemnity right to seek reimbursement for guaranties paid pursuant to its legal obligation. Accordingly, we reverse the injunction the district court entered to prohibit the VA from collecting such reimbursement and remand for further proceedings consistent with this opinion. I. FACTS Two statutory schemes, the VA’s home loan program and Wisconsin’s foreclosure law, are pertinent to this case. We discuss each in turn. Under the VA’s nationwide loan guaranty program, the VA has provided housing assistance to qualified veterans since 1944 by guaranteeing home loans made to veterans by private lenders. See Title III of the Servicemen’s Readjustment Act of 1944, Pub.L. No. 346, 58 Stat. 284, 291 (codified as amended at 38 U.S.C. §§ 1801-33) [hereinafter Servicemen’s Readjustment Act]. The VA has promulgated regulations governing all aspects of its loan guaranty program. See 38 C.F.R. part 36 (1988). Veterans are charged a one percent guaranty fee for a VA loan pursuant to 38 U.S.C. § 1829(a). In return, they are guaranteed a maximum interest rate that is usually below the market rate, see 38 U.S.C. § 1803(c); 38 C.F.R. § 36.4311, as well as limits on closing costs, loan origination, escrow and other fees, see 38 C.F.R. § 36.4312. Additionally, lenders usually forego the requirement of a down payment on a VA loan in return for the VA’s guaranty. The VA’s guaranty, by increasing the private lender’s comfort level with the loan, induces them to make loans (or offer terms) which they otherwise might decline. If a veteran defaults on loan payments, the lender may foreclose on the property. The VA regulations do not set forth a foreclosure procedure; foreclosure is effected according to the law of the state in which the property is located. Seé 38 U.S.C. § 1820(a)(6); 38 C.F.R. §§ 35.4319, 36.4320. The lender must give the VA thirty days’ notice before beginning foreclosure proceedings. 38 C.F.R. § 36.4317. The VA then has fifteen days in which to give the lender instructions regarding the foreclosure proceeding. 38 C.F.R. § 36.-4324(f). If the lender forecloses in accord-anee with the VA’s instructions, and a deficiency remains after the sale of the property, the VA must reimburse the lender up to the amount of its guaranty. 38 C.F.R. § 36.4321. Veterans participating in the VA program sign a contract with the VA that establishes the VA’s right to seek reimbursement from the veteran for any payments the VA must make to private lenders pursuant to its guaranty of the veteran’s loan. This guaranty agreement is governed by federal law. The federal regulations adopted pursuant to this law provide two alternative courses by which the VA may recover from the veteran the amount paid on the guaranty. First, the VA becomes subrogated to the rights of the lender and can pursue any causes of action the lender might have had against the defaulting veteran. 38 U.S.C. § 1832; 38 C.F.R. § 36.4323(a). Under this subro-gation right, the VA’s rights are strictly derivative from the lender’s rights. If, for instance, the lender could collect a deficiency judgment from the veteran, then the VA could step into the shoes of the lender and do so as well. Of course, if the lender’s rights to a deficiency judgment against the veteran fail, then the VA’s rights through subrogation fail as well. Second, the VA may pursue its indemnity right under its guaranty contract with the veteran to recover any amounts paid on the guaranty. 38 U.S.C. § 1832; 38 C.F.R. § 36.4323(e). This indemnity right is a contractual one, arising directly from the contract between the veteran and the VA rather than deriving from the lender/veteran relationship. Aside from these federal rights, Wisconsin’s foreclosure law is also relevant to this case. Wisconsin law provides two statutory mechanisms by which a lender may foreclose on the mortgaged property of a debtor who is in default. The lender may demand in his complaint of foreclosure that judgment be rendered “for any deficiency which may remain due to him after sale of the mortgaged premises_” Wis.Stat. § 846.04. If the lender proceeds under this section, the debtor is given twelve months to redeem the property. Alternatively, the lender may choose expedited foreclosure if the borrower has previously so agreed. Under this route, the lender “may elect by express allegation in the complaint to waive judgment for any deficiency which may remain due to [him] after sale of the mortgaged premises,” in which case a six-month redemption period applies. Wis. Stat. § 846.1Ó1. It is this second route with which we are primarily concerned. Charles Davis is a veteran of the United States Navy who bought a home in Wisconsin through the VA’s loan guaranty program. When Davis purchased his home, he executed loan documents and a mortgage with a private lender as well as a guaranty agreement with the VA. When Davis defaulted on his home loan, the lender foreclosed on his property pursuant to the second, expedited route as permitted by Davis’ mortgage agreement. The lender subsequently sold Davis’ property at a foreclosure sale for less than the outstanding balance on Davis’ loan. Thus, a deficiency of approximately $23,000 remained. Because the VA had contractually guaranteed Davis’ loan for more than the remaining deficiency, the VA reimbursed the lender for the entire deficiency pursuant to its guaranty of Davis’ loan. The VA then sought recovery of that amount from Davis under its federal indemnity right. In response to the VA’s attempted recovery, Davis denied liability and filed a third-party class action complaint against Edward Derwinski, the Secretary of Veterans Affairs, challenging the VA’s right to recover payments it has made pursuant to its loan guaranties. Davis asserts that just as the VA lost its subrogation right when the lender foreclosed under section 846.101, it also lost its indemnification right. He argues that the VA was required to direct the lender to foreclose under section 846.-04, rather than section 846.101, if it-wanted to preserve its indemnification right. After both Davis and the VA filed' cross-motions for summary judgment, the district court agreed with Davis, essentially finding that the VA was “estopped” from asserting its indemnity right when it allowed a lender to foreclose under section 846.101. The district court entered an order which certified the class and subclasses proposed by Davis, denied the VA’s motion for summary judgment, granted summary judgment for one of Davis’ subclasses, permanently enjoined the VA from collecting indemnity payments from any veterans whose property was foreclosed pursuant'to section 846.101, and ordered the VA to refund indemnity payments previously collected. Based on that injunction, the United States and Derwinski appealed. See 28 U.S.C. § 1292(a). II. DISCUSSION We do not write on a clean slate in this case. First, the VA has long interpreted its enabling legislation, see Servicemen’s Readjustment Act § 504, as providing it a federal indemnity right that is unaffected by state foreclosure law. See Decisions of the Administrator of Veterans’ Affairs, No. 625 at 1154 (Jan. 22,1945); 38 C.F.R. § 36.-4323(e); see also VA Form 26-1820; VA Form 26-1820a. The VA’s interpretation of the statute is controlling unless “plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S, 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945). Second, the Supreme Court has previously considered, and upheld, the VA’s right of indemnity against veterans for amounts it must pay lenders pursuant to its guaranty obligation. In United States v. Shimer, 367 U.S. 374, 81 S.Ct. 1554, 6 L.Ed.2d 908 (1961), the Supreme Court considered the VA’s home loan program and upheld the validity of the VA’s independent right of indemnification under section 36.4323(e). In Shimer, as in this case, the VA sought to collect monies from a veteran pursuant to its. indemnity right rather than its subrogation right (recognizing in both cases that its subrogation rights were ineffectual because the lender had not preserved its rights to a deficiency judgment against the veteran). The lender in Shimer, after purchasing the property at a judicial sale, failed to file a petition to fix the fair market value of the foreclosed property pursuant to the Pennsylvania Deficiency Judgment Act. According to the Pennsylvania statute, this failure permanently discharged both the debtor and the guarantor from liability on the debt. The Third Circuit looked to this state law and determined that the VA was thus not obligated to pay the lender on its guaranty. Applying basic principles of surety law, the court held that the VA could not recover from its principal, Shim-er, any amount it was not obligated to pay the lender on his behalf. See United States v. Shimer, 276 F.2d 792 (3d Cir.1960). The Supreme Court reversed the Third Circuit’s decision, holding that the application of state law to determine the VA’s obligation to the lender was inconsistent with the applicable regulations prescribed by the VA to compute guaranty claims. Shimer, 367 U.S. at 377-81, 81 S.Ct. at 1557-60 (discussing 38 C.F.R. § 36.4321). The Court stated that it had “no doubt that this regulatory scheme, complete as it is in every detail, was intended to provide the whole and exclusive source of protection of the interests of the [VA] as guarantor and was, to this extent, meant to displace inconsistent state law.” Id. at 381, 81 S.Ct. at 1559. More significantly, the Court went on to consider Shimer’s argument that even though the VA was obligated on its guaranty to the lender, the VA nevertheless had no right to indemnity from him. See id. at 386, 81 S.Ct. at 1562. The Court disagreed with Shimer and held that the VA enjoys an “independent right of indemnity.” Id. at 387, 81 S.Ct. at 1563. “We cannot agree that Congress ... intended to relieve the veteran of direct liability for amounts properly paid on his behalf” by the VA. Id. at 386, 81 S.Ct. at 1562. Thus, Shimer upheld both the lender’s federal right to receive payment from the VA on its guaranty of a veteran’s loan and the VA’s federal right to indemnity from the veteran for paying the lender on that guaranty. We think that Shimer controls this case and compels us to reverse the district court’s order; the VA may exercise its federal indemnity right to seek reimbursement from veterans for guaranty obligations which it was legally obligated to pay, and did pay, lenders. Although the district court found “the pertinent facts of the present case indistinguishable from those in Shimer,” it held that the “VA is estopped from seeking a deficiency against a veteran under its indemnity agreement when the lender forecloses against the veteran pursuant to Wis.Stat. § 846.101.” R. 36 at 14. The district court declined to apply Shimer because in Shimer the VA was not completely able to control its power to be made whole through subrogation as it arguably is in Wisconsin. Under the Pennsylvania foreclosure scheme, a lender makes an election to pursue a deficiency judgment after the foreclosure sale and after the VA’s guaranty obligation has been established and paid. Thus, the VA had no string with which to control the lender at the time of the lender's election to pursue a deficiency. In Wisconsin, by contrast, the lender makes the election in the foreclosure complaint itself. Thus, in Wisconsin, the VA could require a foreclosing lender to use section 846.04, rather than section 846.101, and thereby preserve its subrogation right. The district court believed that because the VA enjoyed the option of preserving its subrogation right it would be inequitable to permit the VA to forego that right by allowing a lender to foreclose under section 846.101, but then nonetheless rely on its indemnity right to collect amounts paid on its guaranty from the veteran. Thus, the district court es-topped the VA from asserting its indemnity right when the VA allows a lender to foreclose under section 846.101. In so doing, we believe that the district court erred in penalizing the VA for relying on a federal right that the Supreme Court has upheld as a legitimate exercise of the VA’s authority to administer the veterans’ home loan program. See Shimer, 367 U.S. at 381-85, 81 S.Ct. at 1559-62. Simply because the VA could have instructed lenders to proceed under section 846.04, and arguably preserved its subrogation rights, does not provide us authority for insisting that it take that course of action. There is no textual basis in the statute and regulations governing the VA’s home loan program that compels us to force the VA to privilege its subrogation right over its indemnification right. Moreover, in Shimer, the Supreme Court gave no indication that the VA’s federal indemnity right was subject to qualification depending upon whether the VA’s subrogation right was available. See Shimer, 367 U.S. at 386-88, 81 S.Ct. at 1562-63. Davis argues, however, that we should follow a recent decision of the Ninth Circuit and hold, as did that court, that the VA has a right to indemnity only when state law always bars the lender, and thereby the VA through subrogation, from recovering a deficiency against the veteran. Whitehead v. Derwinski, 904 F.2d 1362, 1369 (9th Cir.1990). The Ninth Circuit required the VA to rely upon its subrogation right rather than its indemnity right when it could ensure that its subrogation right was protected. Id. Although we concede that the facts of this case and those in Whitehead are materially indistinguishable, we respectfully disagree with the analysis employed by the Ninth Circuit in that case. First, the Ninth Circuit characterizes the VA’s subrogation right as “primary” without providing any authority for that proposition. See id. (“Given the availability of the judicial foreclosure alternative, which allows the VA to exercise its primary right to subrogation and proceed directly against the debtor, the VA may not ... resort to its right to indemnity.”). As we have noted above, we discern no fair support for characterizing the VA’s subrogation right as “primary” and thus respectfully decline to follow our Ninth Circuit colleagues. The only other circuit to consider the issue before us has likewise declined to follow Whitehead. See Vail v. Derwinski, 946 F.2d 589, 591-92 (8th Cir.1991) (“No rationale exists” for Whitehead’s conclusion that the VA’s indemnity right was essentially a backup for subrogation). Likewise, we think it unwise to follow the path laid down in dicta by the Ninth Circuit in Whitehead and speculate on whether the Supreme Court would significantly limit Shimer because of an evolved conception of federal-state relations. See White head, 904 F.2d at 1369-71. The Supreme Court has consistently discouraged courts of appeal against such an approach: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989). We believe that Shim-er is directly applicable to this case and therefore choose to follow its lead in sustaining the VA’s independent federal indemnity right. Davis next presses the theory that regardless of whether we find Whitehead’s reasoning persuasive, equity provides us with a basis pn which to uphold the district court’s injunction against the VA. Put differently, Davis accuses the VA of reaping the benefits of Wisconsin’s expedited foreclosure law while disavowing its burdens— an option not available to lenders in Wisconsin. While we agree with Davis that the VA may enjoy rights in addition to those that lenders enjoy, we think that Davis’ comparison between the VA and lenders misses the mark. The VA is not a lender; it is a guarantor. Moreover, it is a guarantor under a comprehensive federal program specifically designed to regulate the VA/lender and VA/veteran relationships. The VA home loan program establishes a separate federal scheme for determining the “benefits and burdens” of both the VA/lender and VA/veteran relationships. State law is left to regulate the lenders’ and veterans’ rights as against each other. See Farm Credit Bank of Saint Paul v. Lord, 162 Wis.2d 226, 470 N.W.2d 265, 270 (1991) (right or equity of redemption afforded mortgagor vis-a-vis mortgagee is created solely by state law), cert. denied, - U.S. -, 112 S.Ct. 440, 116 L.Ed.2d 459 (1991). It is this separate scheme of benefits and burdens that we must uphold, provided it represents a valid exercise of the agency’s authority (and Davis does not challenge any of the VA regulations as implemented). See Shimer, 367 U.S. at 382, 81 S.Ct. at 1560. Thus, even if the “benefits and burdens” of the VA home loan program are different in kind or degree from those provided non-VA participants, this does not produce inequity between the VA and rion-VA participants. There is nothing inequitable in treating differently groups that are not similarly situated. Cf. Catharine MacKinnon, Difference and Dominance in Feminism Unmodified: Discourses on Life and Law 32-45 (1987) (law often mistakenly equates treating people the same with treating them equally). Furthermore, Davis premises his equitable argument on the unjustified assumption that veterans are similarly situated to other borrowers in Wisconsin. Again, this is not the case. Davis, like other participants in the VA’s home loan program, availed himself of a favorable federal program that is not open to all borrowers. Now, he asks us to treat him “just like everyone else” when he benefit-ted from not being treated like everyone else in the first place. In addition to the favorable lending terms for veterans explained above, the VA program also provides veterans with various protection in the event of default and foreclosure. Davis signed a guaranty contract with the VA establishing the VA’s indemnity right and agreeing that federal law would govern the contract. Although the VA’s protection of veterans in the event of foreclosure may be different from that protection Wisconsin has elected to provide its borrowers, it is certainly not for us to say that an extended redemption period would be more fair to veterans than the procedures the VA has promulgated. Furthermore, Davis has not challenged any of the VA’s regulations themselves, which of course he would have been free to do. We disagree with Davis that we should prevent the VA from exercising its indemnity right on equitable grounds. Consequently, we find no basis on which to limit Shimer’s conclusion that the VA’s subrogation and indemnification rights are independent, legitimately promulgated, federal rights, Shimer, at 386-87, 81 S.Ct. at 1562-63, and thus no basis on which to require the VA to privilege its subrogation right over its indemnification right. Finally, we come to an issue that we set aside at the start of our discussion (see ante at n. 3). The district court suggested that the VA may have instructed some lenders in Wisconsin to effect foreclosure by a method that would preserve the personal liability of the debtor, and that some lenders may have ignored the VA’s instructions. Under 38 C.F.R. § 36.4324(f), noncompliance with the VA’s instructions as to the appropriate method of foreclosure would relieve the VA of liability as guarantor. If the VA pays lenders in this situation despite the lack of any legal obligation to do so, the payment is “gratuitous” and the VA is not entitled to indemnification. United States v. Church, 736 F.Supp. 1494, 1497-98 (N.D.Ind.1990). In the present case, the VA interpreted the district court’s opinion as agreeing with Church. Moreover, the VA states in its brief to this Court that “[we do] not challenge that aspect of the district court’s ruling; we argue only that the VA is entitled to indemnification for all guaranty payments that it was legally obligated to make. If this Court accepts our position, a remand is necessary so that the district court can determine which of the lenders did and did not comply with the applicable regulations.” Brief of Appellant at 14. The VA’s point is well taken; we remand to the district court for further proceedings consistent with this opinion. Reversed and Remanded. ORDER On April 3, 1992, our decision in United States v. Davis, No. 91-1678, slip op. (7th Cir. April 3, 1992) was published, see page 603, which reversed an injunction entered against the Veteran’s Administration (VA) prohibiting the VA from exercising its federal indemnity right to seek reimbursement for guaranties paid on behalf of veterans participating in its VA home loan program. Additionally, we remand the case for further proceedings, including a determination of whether part of the appellee class may be relieved of liability to the VA on the authority of United States v. Church, 736 F.Supp. 1494, 1497-98 (N.D.Ind.1990) (holding that under 38 C.F.R. § 36.4324(f), a lender’s noncompliance with the VA’s instructions releases the VA from its guaranty obligation to the lender, and in turn, also releases the veteran from his obligation to the VA). Unbeknownst to this panel until April 6, 1992, the appellee class filed a motion to dismiss this appeal as moot on March 30, 1992. The appellee class argues that it is entirely composed of individuals who would be released of liability to the VA under Church., thus mooting the appeal on the merits. The motion is based on (1) the VA’s admission in its appellate brief (and confirmed during oral argument) that it does not challenge Church or its application where appropriate in this case and on (2) “subsequent discovery which has disclosed that all members of the class are entitled to relief pursuant to the VA’s admission.” Motion of Appellee Class to Dismiss Appeal on Ground of Mootness. The “subsequent discovery” relied upon is a request for admissions recently served on the YA by the appellees, to which appel-lees’ counsel indicates the VA has not responded by the applicable deadline. Appel-lees’ counsel states by way of affidavit that Christian Larsen, the Assistant United States Attorney representing the VA, desires to defer its response to the discovery requests until disposition of the appeal. The appellee class asks us to view the requested admissions, the VA’s alleged failure to respond, and its counsel’s conversation with Mr. Larsen as an admission by the VA that it has no indemnity rights with respect to any member of the appellee class. The issue of what portion of the appellee class is covered by Church and the VA’s concession regarding its application, however, presents a factual question best resolved by the district court. So, too, issues presented by ongoing discovery in this case are best left to the district court to address. In short, appellees’ motion asks that we resolve factual issues that are appropriate for the district court to resolve on remand. Accordingly, we direct the district court to consider the issue of the applicability of Church to the plaintiff class on remand as instructed in our opinion. See pages 610-611. . The issue we face in this case will not likely arise for veterans whose loans were closed after December 31, 1989. Veterans who pay an increased guaranty fee, and whose loans are closed after December 31, 1989, will not be liable to the VA for any loss resulting from a default on such loan, except in the case of fraud, misrepresentation or bad faith in obtaining the loan or in connection with the default. The Veterans' Benefits Amendments of 1989, H.R. 901, Pub.L. No. 101-237, § 304. These amendments raised the loan fee required by 38 U.S.C. § 1829 from one percent to 1.25 percent of the loan amount for veterans. Congress has since increased the fee to 1.875 percent for loans closed between November 1, 1990 and September 30, 1991. See Omnibus Budget Reconciliation Act of 1990, Pub.L. No. 101-508, § 8032. These and subsequent amendments have renumbered many of the statutory sections applicable in this case. Our citations are to the statutes applicable here rather than as renumbered. . We use the term “lender,” rather than mortgagee or holder, throughout this opinion for simplicity, although we recognize that the party foreclosing may not be the original lender because that lender may assign the mortgage before foreclosure. Similarly, we use the term "veteran” rather than "borrower" or "obligor” for simplicity, although we recognize that at the time of foreclosure the person being foreclosed upon may be the veteran’s beneficiary or assign-ee. . A lender’s noncompliance with the VA’s instructions affects the VA’s rights vis-a-vis the veteran. See United States v. Church, 736 F.Supp. 1494 (N.D.Ind.1990). We put this issue aside for the moment. See post pp. 610-611. . A deficiency refers to that amount which is the difference between the amount due on a defaulted home loan after foreclosure (including costs incurred in the foreclosure process) and the net amount realized from the sale of the security for the loan (usually the home itself). See, e.g., Wis.Stat. § 846.165. . The VA’s indemnity agreement with the veteran may appear in one of two forms. When the loan application is processed automatically by the lender, the indemnity agreement is set forth on VA Form 26-1820. When the veteran and the lender apply jointly for a guaranty (as did Davis), the agreement is set forth in VA Form 1802a, the "VA Application for Home Loan Guaranty.” This form provides: [ T]he undersigned veteran and lender hereby apply to the Administrator of Veterans’ Affairs for Guaranty of the loan described here under Section 1810, Chapter 37, Title 38, United States Code to the full extent permitted by the veteran’s available entitlement and severally agree that the Regulations promulgated pursuant to Chapter 37, and in effect on the date of the loan shall govern the rights, duties, and liabilities of the parties. . 38 C.F.R. § 36.4323, entitled "Subrogation and indemnity,” provides in relevant part: (a) The Secretary shall be subrogated to the contract and the lien or other rights of the holder to the extent of any sum paid on a guaranty or on account of an insured loss, which right shall be junior to the holder’s rights as against the debtor or the encumbered property until the holder shall have received the full amount payable under his contract with the debtor. No partial or complete release by a creditor shall impair the rights of the Secretary with respect to the debtor’s obligation.... (e) Any amounts paid by the Secretary on account of the liabilities of any veteran guaranteed or insured under the provisions of 38 U.S.C. Chapter 37 shall constitute a debt owing to the United States by such veteran..., . The redemption period is the period between the judgment of foreclosure and the foreclosure sale. During this time, the mortgagor may avoid the sale of the property by repaying the outstanding indebtedness. . Section 846.101 reads in relevant part: [ T]he plaintiff in a foreclosure action of a mortgage ... may elect by express allegation in the complaint to waive judgment for any deficiency which may remain due to the plaintiff after the sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage. . Because the lender had foreclosed Davis’ property under section 846.101, it had waived its right to a deficiency.. Thus, the VA’s subrogation right, which allows it to step into the lender’s shoes, would not have provided the VA an effective collection route. . Moreover, it not necessary for us to perform a "preemption” analysis in this case as did Whitehead in dicta. See Whitehead, 904 F.2d at 1369-72. A further reason for our holding that Wisconsin’s statutory restrictions on deficiency judgments do not preclude the VA’s suit for indemnification against Davis is that it is by no means clear that the Wisconsin statute at issue even applies to relationships between a debtor and third parties such as guarantors. Section 846.101 by its terms speaks of the “plaintiff’s” election of remedies and consequent waiver of rights. See Wis.Stat. § 846.101. The "plaintiff” in Davis’ foreclosure action was the lender, not the VA. This will usually be the case, as the VA does not itself prosecute foreclosure actions unless the lender fails to exercise reasonable diligence in foreclosing. See 38 C.F.R. § 36.-4319(f). Neither party was able to lócate any Wisconsin case' law addressing this question. Our own search of Wisconsin’s case law has likewise yielded no clear guidance. In the only recent case to address section 846.101; the Wisconsin Supreme Court noted without deciding that the party waiving its right to a personal deficiency under section 846.101 is the mortgagee. See Glover v. Marine Bank of Beaver Dam, 117 Wis.2d 684, 345 N.W.2d 449, 456 (1984) ("This [section 846.101’s] protection comes in the form of a waiver of personal deficiency by the mortgagee.”). Thus, for us to reach the question of whether the VA’s regulation preempts section 846.101, we must first assume the two laws conflict. It is unnecessary for us to make this assumption and therefore unnecessary as well for us to embark on a preemption analysis. Accord Vail, 946 F.2d at 592 (VA’s indemnity right upheld despite VA’s acquiescence in lender’s use of expedited foreclosure proceeding because Minnesota law affirmatively recognizes that rights of third parties under contracts of guaranty survive anti-deficiency laws; no preemption analysis necessary to decide case). The State of Wisconsin filed a brief in this case as amicus curiae. We note that Wisconsin does not argue that section 846.101 generally releases guarantors as well as debtors. Rather, Wisconsin expresses two concerns in asking us to affirm the district court. The first is its "interest in the uniform application of its laws to all lenders.” Brief for the State of Wisconsin as Amicus Curiae 2. Because the VA is not a lender, but a guarantor, our decision does not disturb any parity among lenders that Wisconsin seeks to maintain. Wisconsin's second concern is that veterans "may lose part of their other means of support as the VA tries to collect deficiency judgments from veterans' pensions and other federal entitlements.” Id. While we; too, empathize with the plight of one subject to foreclosure and debt collection, we are constrained to respect the resolution of conflicting policy objectives reached by Congress in establishing the veterans' home loan program as well as the expertise of the VA in carrying out those congressional directives. We decline to turn a loan guaranty program into a “grant of. aid Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
sc_issue_12	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. PARSONS et al. v. SMITH, FORMER COLLECTOR OF INTERNAL REVENUE. No. 218. Argued March 4, 1959. Decided April 6, 1959. Sherwin T. McDowell argued the cause for petitioners in No. 218. With him on the brief were William R. Spofjord and Charles I. Thompson, Jr. David Berger argued the cause for petitioners in No. 305. With him on the brief was Leon H. Kline. Howard A. Heffron argued the causes for respondent. On the brief were Solicitor General Rankin, Assistant Attorney General Rice, Daniel M. Friedman and Marvin W. Weinstein. Edgar J. Goodrich and Lipman Redman filed a brief for the Estate of John Schumacher, as amicus curiae, urging reversal. Frederick Bernays Wiener and Le Roy Nate,filed a brief in No. 218 for Paragon Jewel Coal Co., Inc., as amicus curiae, urging affirmance. Together with No. 305, Huss et al. v. Smith, Former Collector of Internal Revenue, also on certiorari to the same Court. Mr. Justice Whittaker delivered the opinion of the Court. These tax refund cases present the question whether petitioners, Parsons in No. 218 and Huss in No. 305, are entitled to an allowance for depletion on amounts received by them under contracts with the owners of coal-bearing lands for the strip mining of coal from those lands and the delivery of it to the landowners. The cases were heard by the same courts below. The District Court ruled that petitioners had no depletable interest in the coal in place and rendered judgment for the respondent— collector in each case. The Court of Appeals affirmed both judgments. 255 F. 2d 595, 599. Because of an asserted conflict with the principles applicable under the decisions of this Court, we granted certiorari in both cases. 358 U. S. 814.. , ¿ The pertinent tacts in each case were found by thé District Court and are not challenged here. In substance, they are as follows: . PARSONS, No. 218. Petitioners were members of a partnership (“Parsons”) which, until the transactions involved here, was primarily engaged in road building. Rockhill Coal Co. (“Rockhill”) owned bituminous coal-bearing lands in Pennsylvania. Much of the coal was located relatively near the.surface and was therefore ■removable by the strip mining process. In 1942 Parsons expressed a desire to strip mine coal from RockhilTs lands, but it refused to sign the written contract offered because the firm did not wish to be bound by a contract “which would take a long time, since, if an opportunity opened up, [it] wanted to go back to road building.” It was then agreed that Parsons would, and it did, proceed under an oral agreement. Under that agreement Parsons was to "strip mine coal from such sites and seams, within a generally described area of Rockhill’s lands, as were designated by Rockhill. Parsons was to furnish at its own expense all of the equipment, facilities and labor which it thought necessary to strip mine and deliver the coal to Rockhill’s cars at a fixed point. For each ton of coal so mined and delivered Rockhill was to pay Parsons a stated amount of money. Parsons was not authorized to keep or sell any of the coal but was required to deliver all that was mined to Rockhill. The agreement was not for a definite term, nor did it obligate Parsons to mine the tract to exhaustion, but, to the contrary, it was agreed that “if Parsons or Rockhill wanted to quit, all that was necessary to terminate the arrangement was the giving of a ten-day notice.” However, if Rockhill thus canceled the agreement and if “Parsons had previously gone to the expense of removing the overburden (thereby performing the heavy part of the work, as well as meeting wages and expenses in so doing), then Parsons would have the privilege of taking out the coal [so uncovered] and of being paid for it [even though] this took more than ten days.” Operations continued under the agreement without notice of termination until August 1, 1950, when Parsons gave Rockhill notice that it would “quit” the work on September 1, 1950, and it ceased these operations on or near that date.' Large amounts of strippable coal still remained on the tract and strip mining thereon was continued by another contractor. Parsons’ investment in equipment used in the work ran from a low in 1943 of $60,000 to a high jn 1947 of $250,000. The equipment was movable and there' is no evidence that it was not usable elsewhere or for other purposes. HUSS, No. 305. Petitioners were members of a partnership (“Huss”) engaged in the business of strip mining coal. Philadelphia and Reading Coal & Iron Co. (“Reading”) owned anthracite coal-bearing lands in Schuylkill County, Pennsylvania. Much of the coal was so located that it could be removed by strip mining. In 1944 Reading and Huss entered into a written contract under which Huss undertook to strip mine the coal from such areas, within a generally described tract of Reading’s land, as might be designated by Reading and that was not lying deeper than a prescribed distance from the surface. Huss was to furnish at its own expense all of the equipment, facilities and labor necessary to mine and deliver the coal to Reading’s colliery. For each ton of coal so mined and delivered Reading was to pay Huss' a stated sum. That sum was agreed to be in “full compensation for the full performance of all work and for the furnishing of all material, labor, power, tools, machinery, implements and equipment.required for the work.” Huss was not authorized to keep or sell any of the coal. The contract was expressly terminable by Reading at any time upon 30 days’ written notice “without specifying any reason therefor” and without liability for “any loss of anticipated profits or any other damages whatever.” This right of termination was not exercised. Operations continued under the contract until July 1947, by which time Huss had mined most of the strippable coal on the lands covered by the contract that lay within the stipulated distance from the surface, and the contract was then canceled by mutual agreement. Huss’ investment in equipment used in the work ran from a low in 1944 of $100,000 to a high in 1947 of $500,000. All of the equipment was movable and usable elsewhere in strip mining and some of it was usable for other purposes. Whether a deduction from gross income shall be permitted for depletion of mineral deposits, or any interest therein, is entirely a matter of grace. We therefore must look, first, to the provisions and purposes .pf the statutes and to the decisions'construing them to see what interests are permitted a deduction for depletion, and, next, to the contracts involved to see whether they gave to petitioners, such an interest. The applicable statutes are §§23 (m) and 114 (b) (4) (A) of the Internal Revenue Code of 1939, 26 U. S. C. (1952 ed.). §.23 (m) and 26 U. S. C. (1946 ed.) § 114 (b) (4) (A): Section 23 (m) directs that a reasonable allowance for depletion shall be made “in the case of mines,... according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary,” and that “[i]n the case of leases the deductions shall be equitably apportioned between the lessor and lessee.” And § 114(b) (4) (A) provides that the allowance shall be, “in the case of coal mines, 5 percentum ... of the gross income from [mining] the property during the taxable year, excluding . . . any rents or royalties paid or incurred by the taxpayer in respect of the property.” The purpose óf the deduction for depletion is plain and has been many times declared by this Court. “It is permitted in recognition of the fact that the mineral deposits are wasting assets and is intended as compensation to the owner for the part used up in production.”. Helvering v. Bankline Oil Co., 303 U. S. 362, 366. And see United States v. Ludey, 274 U. S. 295, 302; Helvering v. Elbe Oil Land Development Co., 303 U. S. 372, 375; Anderson v. Helvering, 310 U. S. 404, 408; Kirby Petroleum Co. v. Commissioner, 326 U. S. 599, 603. “[The depletion] exclusion is designed to permit a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired.” Commissioner v. Southwest Exploration Co., 350 U. S. 308, 312. Save for its application only to gross income from mineral deposits and standing timber, the purpose of “the deduction for depletion does not differ from the deduction for depreciation.” United States v. Ludey, 274 U. S., at 303. In short, the purpose of the depletion deduction is to permit the owner of a capital interest in mineral in place to make a tax-free recovery of that depleting capital asset. Although the sentence in § 23 (m) that “In the case of leases the deductions shall be equitably apportioned between the lessor and lessee” presupposes “that the deductions may be allowed in other cases” (Palmer v. Bender, 287 U. S. 551, 557), the statute “must be read in the. light of the requirement of apportionment of a single depletion allowance” (Helvering v. Twin Bell Oil Syndicate, 293 U. S. 312, 321), for two or inore persons “cannot be entitled to depletion on the same income” (Commissioner v. Southwest Exploration Co., 350 U. S. 308, 309). It follows that if petitioners áre entitled to a depletion allowance on the amounts earned under their contracts, the amounts allowable to the landowners for the depletion of their coal deposits would be correspondingly reduced. Dealing specifically with the problem of what interests in mineral deposits were permitted a deduction for depletion under the practically identical predecessors of §§23 (m) and 114, this Court said in Palmer v. Bender, 287 U. S. 551, 557: “The language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital.” The Court further said that the deduction is not “dependent upon the particular legál form.of the taxpayer’s interest in the property to be depleted,, [and that] [i] t is enough if . . . he has retained a right to share in the oil produced. If so he has an economic interest in the oil, in place, which is depleted by production.” Ibid. (Emphasis added.) The Court went on to hold that lessees of oil producing properties, by reserving from an assignment a royalty of “one-eighth of all the oil produced and saved,” retained an economic interest in the oil in place and were therefore entitled to an allowance for depletion against their gross income from that interest. Five years later, in 1938, the Court in Helvering v. Bankline Oil Co., 303 U. S. 362, reaffirmed the test laid down in Palmer and added: “But the phrase ‘economic interest’ is not to be taken as embracing a mere economic advantage derived from production, through a contractual relation to the owner, by one who has no capital investment in the mineral deposit.” 303 U. S., at 367. Applying that principle, the Court held that a processor who, by contracts with the owners of gas (and oil wells, had acquired the right to take wet gas from the wellheads and to extract and sell the gasoline therefrom, paying the well owners a percentage of the proceeds óf such sales, had not acquired an economic interest in the depleting gas in place but only an economic advantage to be derived from the processing operations, and that therefore the income from those operations was not subject to the depletion deduction. In his first regulations prescribed under the -Internal Revenue Act of 1939, the Commissioner adopted almost literally the language we have quoted from Palmer and Banklihe as the tests to be administratively applied in determining what interests in mineral deposits are em titled to the depletion allowance. See Treas. Reg. 103, § 19.23 (m)-l, August 23, 1939. That language, with immaterial changes, has remained in the regulations ever since. During the years here involved, 1942 through 1950, the regulation in force was Treas. Reg. Ill, § 29.23 (m)-l, which, in pertinent part, provides: “Under [the provisions of §§23 (m) and 114] the owner of an econofnic interest in mineral deposits or standing timber is allowed annual depletion deductions. An economic interest is possessed in every case in which the taxpayer has acquired, by investment, any interest in mineral in place or standing timber and secures, by any form of legal relationship, income .derived from the severance and sale of the .mineral or timber, to which he must look for a return of his capital. But a person who has no capital divestment in the mineral deposit or standing timber does not possess an economic interest merely because, through a contractual relation to the owner, he possesses a mere economic advantage derived from production . . . .” Such are the interests that are permitted a deduction for depletion by the statutes as consistently interpreted by this Court and by the, Commissioner. Petitioners do not dispute that these are the controlling principles, but rather they contend that they come within those that allow the deduction. They argue that by their contracts to mine the coal, and particularly by contributing their equipment, organizations and skills to the mining project as required by those contracts, they, in legal effect, made a capital investment in, and thereby acquired an economic interest in, the coal in place, which was depleta-ble by production, and that they are therefore entitled to take the deduction , against their gross income derived from those mining operations. We take a different view. It stands admitted that before and apart from their contracts, petitioners had no investment or. interest in the coal in place. Their asserted right to the deduction rests entirely upon their contracts. Is there anything in those contracts to indicate that petitioners made a capital investment in, or acquired an economic interest in, the coal in place, as distinguished from the acquisition of a mere economic advantage to be derived from their mining operations? We think it is quite plain that there is not. By their contracts, which were completely terminable without cause on short notice, petitioners simply agreed to provide the equipment and do the work required to strip mine coal from designated lands'of the landowners and to deliver the coal to the latter at stated points, and in full consideration for performance of that undertaking the landowners were to pay to petitioners a-fixed sum per ton. Surely those agreements do not show or suggest that petitioners actually made any capital investment in the coal in place, or that the landowners were to or actually did in any way surrender to petitioners any part of their capital interest in the coal in place. Petitioners do not factually assert otherwise. Their claim to the contrary is based wholly upon an asserted legal fiction. As stated, they claim that their contractual right to mine coal from the designated lands and the use of their equip-, ment," organizations and skills in doing so, should be regarded as the making of a capital investment in, and the acquisition of an economic interest in, the coal' in place. But that fiction cannot be indulged here, for it is negated by the facts. To recapitulate, the asserted fiction is opposed to the facts (1) that petitioners’- investments were in their equipment, all of which was movable — not in the coal in place; (2) that their investments in equipment were recoverable through depreciation — not depletion; (3) that the contracts were completely terminable without cause on short notice; (4) that the landowners did not agree to surrender and did not actually surrender to petitioners any capital interest in the coal in place; (5) that the coal at all times, even'after it was mined, belonged entirely to the landowners, and. that petitioners could not sell or keep any of it but were required to deliver all that they mined to the landowners; (6) that petitioners were not to have any part of the proceeds of the sale of the coal, but, oh the contrary, they were to be paid a fixed sum for each ton mined and delivered, which was, as stated in Huss, agreed to be in “full compensation for the full performance of all work and for the furnishing of all [labor] and equipment required for the work”; and (7) that petitioners, thus, agreed to look only to the landowners for all sums to become due. them under their contracts. The agreement of the landowners to pay a fixed sum per ton for mining and delivering the coal “was a personal covenant and did not purport to grant [petitioners] an interest in the [coal in place].” Helvering v. O’Donnell, 303 U. S. 370, 372. Surely these facts show that petitioners did not actually make any capital investment in, or acquire any economic interest in, the coal in place, and that they may not fictionally be regarded as having done so. “Undoubtedly,, [petitioners] through [their] contracts obtained an economic advantage fronv[their] production of the [coal], but that is not sufficient. The controlling fact is that [petitioners] had no interest in the [coal] in place.” Helvering v. Bankline Oil Co., 303 U. S., at 368. Of course, the parties might have provided in their contracts that petitioners would have some capital interest in the coal in place, but they did not do so — apparently by design. Instead, petitioners simply entered into contracts, terminable without cause on short notice, with the owners of coal-bearing lands to provide the equipment and do the work required to strip mine and deliver coal .from those lands, as independent contractors, for fixed unit prices. “[Petitioners thus] bargained for and obtained an economic advantage from the [mining] operations but that advantage or profit did' not constitute a depletáble interest in the [coal] in place” (Helvering v. O’Donnell, 303 U. S., at 372), and having “no capital investment in the mineral deposit which suffered depletion, [petitioners are] not entitled to the statutory allowance” (Helvering v. Bankline Oil Co., 303 U. S., at 368). The judgments must therefore be Affirmed. Strip mining is done from the surfacé of the earth. In general, it is performed by stripping off the earth, known as overburden, which lies over the coal and then removing the cóal.so uncovered. It was contemplated by the parties that in the event of an increase in the union labor wage scale the amount per ton to be paid to Parsons would be increased and on several occasions it was increased to cover higher costs for both lábor and material used in the work. During the tax years involved, which were 1944 to 1947, other like contracts were entered into by the parties, but they were all identical, except for areas covered and prices per ton to be paid to Huss, and it will therefore be unnecessary to treat with them individually. The contract provided, however, that in the event of an increase in the union labor wage scale the amount per ton to be paid to Huss would be, and on several occasions during the operation it was, increased sufficiently to cover increased labor costs. Helvering v. Bankline Oil Co., 303 U. S. 362, 366; Anderson v. Helvering, 310 U. S. 404, 408; Commissioner v. Southwest Exploration Co., 350 U. S. 308, 312. Section 114 (b) (4) (B) provided that “the term ‘gross income from the property’ means the gross income from mining.” 26 U. S. C. (1946 ed.) §114 (b)(4)(B). The principles declared in the Palmer case have been recognized and applied by every subsequent decision of this Court that has treated with the subject. Helvering v. Bankline Oil Co., 303 U. S. 362, 367, literally adopted the language of the Palmer case upon the point. In Helvering v. O’Donnell, 303 U. S. 370, 371, it was said: “The question is whether respondent had an interest, that is, a capital investment, in the oil' and gas in place. . . . Palmer v. Bender, 287 U. S. 551, 557; Helvering v. Twin Bell Oil Syndicate, 293 U. S. 312, 321; Thomas v. Perkins, 301 U. S. 655, 661; Helvering v. Bankline Oil Co., supra.” Helvering v. Elbe Oil Land Development Co., 303 U. S. 372, 375-376, declared that “The words ‘gross income from the property,’, as used in the statute governing the allowance for depletion, mean gross income received from the operation of the oil and gas wells by one who has a capital investment therein, — not income from the sale of the oil and gas properties themselves.” Anderson v. Helvering, 310 U. S. 404, 408-409, repeated the statement last quoted. In Kirby Petroleum Co. v. Commissioner, 326 U. S. 599, 603, the Court said: “The test of the right .to depletion is whether the taxpayer has a capital investment in the oil in place which is necessarily reduced as the oil is extracted.” In Burton-Sutton Oil Co. v. Commissioner, 328 U. S. 25, 32, the Court said: “It seems generally accepted that it is the owner of a capital investment or economic interest in the oil in place who is entitled to the depletion.” Commissioner v. Southwest Exploration Co., 350 U. S. 308, 314, reannounced substantially the rule declared in the Palmer case. It said “that a taxpayer is entitled to depletion where he has: (1) 'acquired, by investment, any interest in the oil in place,’ and (2) secured by legal relationship ‘income derived from the extraction of the oil, to which he must look for a return of his capital.’. . . These two factors, usually considered together, constitute the requirement of ‘an economic interest.’ ” Question: What is the issue of the decision? A. federal taxation, typically under provisions of the Internal Revenue Code B. federal taxation of gifts, personal, business, or professional expenses C. priority of federal fiscal claims: over those of the states or private entities D. miscellaneous federal taxation (cf. national supremacy: state tax) Answer:
songer_casetyp1_7-3-2	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 "economic activity and regulation - torts". David W. HAMPTON, Plaintiff-Appellee, v. INTERNATIONAL BUSINESS AND MERCANTILE REASSURANCE COMPANY, Defendant-Appellant, James A. McLean, Defendant, Eddie W. Pruett, Ind., and d/b/a Pruett’s Insurance Agency, Third-Party Defendant. No. 89-7717. United States Court of Appeals, Eleventh Circuit. Sept. 4, 1990. J. Garrison Thompson, Pitts, Pitts & Thompson, Selma, Ala., for defendant-appellant. Steven F. Schmitt, Tallassee, Ala., Hubbard Henry Harvey, Demopolis, Ala., for plaintiff-appellee. Before FAY and JOHNSON, Circuit Judges and GIBSON, Senior Circuit Judge. Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation. FLOYD R. GIBSON, Senior Circuit Judge: Appellant, International Business & Mercantile Reassurance Co. (“IB & MReC”), appeals the district court’s denial of its JNOV motion after a jury verdict in favor of David Hampton, Appellee, an Alabama farmer who insured his soybean crops with IB & MReC. Hampton had sued IB & MReC for, among other things, fraud, alleging it issued to him a crop policy with a particular kind of coverage for which it knew his farm was not eligible and then later refused to indemnify him to the full extent of coverage. The jury returned a verdict of some $350,000. IB & MReC argues that the case wrongly went to the jury, particularly on punitive damages. We agree and reverse and remand as stated below. I. FACTS Hampton has two farms in Mar.engo County, Alabama — one designated D-198 and the other designated F-187. He farmed soybeans on both at all times relevant to this lawsuit. In 1981, he began insuring his soybean crops by the purchase of multi-peril crop insurance (“MPCI”) directly from the Federal Crop Insurance Corporation (the “FCIC”). This type of insurance is generally bought by the making of a promissory note to the insurer for the amount of the premium. If a condition of insurance later transpires, the premium is deducted from the indemnity paid to the insured, thereby satisfying the promissory note. Prior to the time Hampton first began buying MPCI, only the FCIC sold it. In 1980, however, the FCIC began reinsur-ing private insurers who could sell MPCI directly to farmers! While Hampton bought his MPCI directly from the FCIC, he did so through the services of an agency called Osmer. In 1983 Eddie Pruett, an independent insurance agent, acquired Osmer and became the agent through whom Hampton bought his MPCI from the FCIC. Pruett became an agent of IB & MReC for purposes of selling MPCI on February 15, 1985. On February 28, 1985, Hampton applied for MPCI for his two farms with IB & MReC, which was in turn reinsured by the FCIC. In 1983, the FCIC first allowed a particular kind of MPCI to cover farms — individual yield coverage (“IYC”). IYC covers a farm based on that farm’s particular production history in bushels per acre. Prior to 1983, the FCIC only provided for area plan coverage, which is based on average yields in bushels per acre established according to actuarial tables and the production average of the farms in a given area. Apparently the local Agricultural Stabilization Conservation Service (the “ASCS”) committee keeps the necessary records for setting the applicable area plan coverage. IYC coverage would be superior to area plan coverage for those farms that produced a higher yield than the average yields reflected by the ASCS. In 1983 and 1984, IYC could be provided to farms that had at least a three-year production history or, failing a three-year history, that had a yield established by the local ASCS committee. In December 1984, however, the FCIC changed its IYC regulations and disallowed the alternative method of obtaining IYC on farms without the requisite three-year production history. Thus, beginning in 1985, if a farm did not have a three-year produc- • tion history, it could not qualify for IYC. Buying his MPCI through Pruett and the FCIC, Hampton received IYC coverage for both his farms in 1983 and 1984. Farm D-198 had the necessary three-year production history, while farm F-187 was given a yield average by the local ASCS committee to qualify for IYC. Of course, F-187 was no longer eligible for IYC in 1985 because of the FCIC rule change. Nevertheless, as revealed above, in late February 1985, Hampton applied for MPCI in the form of IYC for both farms with IB & MReC via Pruett. At the same time, Hampton terminated his coverage with the FCIC which was otherwise automatically renewable. Pruett did not tell Hampton that F-187 was not eligible for IYC, though the parties stipulated that at the timé Pruett knew or should have known F-187' was not eligible. Pruett testified he was not attempting to deceive Hampton; Hampton testified that he did not believe that Pruett was intentionally deceiving him. Acreage reports issued by IB & MReC throughout 1985 reflected that F-187 had IYC, until a report from October of that year. The final acreage report that Hampton saw was from July of 1985 and showed F-187 with IYC. However, a report of October 7, 1985, which Hampton did not see until this lawsuit, showed F-187 with only area coverage. Thereafter, all acreage reports showed F-187 with only area coverage. Thus, at some point, IB & MReC realized or decided that F-187 could not qualify for IYC, which was a fact, of course, extant on its own. Hampton’s soybean farming operation sustained a loss for 1985 on both farms. At harvest time, F-187 brought in only about nine bushels per acre. He filed a claim for both under his IB & MReC policy in November 1985. An adjuster came out later that month and completed an adjustment worksheet based on IYC coverage. This worksheet, however, was amended at the IB & MReC claims office in Charlotte, North Carolina, to indemnify Hampton by only area coverage on both farms for fourteen to sixteen bushels per acre. Ultimately, IYC was paid by IB & MReC on D-198. The extent of F-187’s coverage (and other attendant damages to Hampton) is the dispute in this case. Thus, the factual changes and misunderstandings were set for the 1985 crop year. They remained so until IB & MReC tried to straighten them in late 1985. By then, however, Hampton felt aggrieved and later filed this lawsuit. Hampton contended that he had grounds to believe F-187 had IYC. Whether or not'he was led to believe that in a deceptive manner amounting to fraud is the legal question posited. Hampton first sued IB & MReC, another named defendant, and fictitious defendants in October 1986 in Alabama state court for breach of insurance policy, fraud, and bad faith refusal to pay, seeking compensatory and punitive damages. IB & MReC became the sole remaining defendant at some later date and the case was removed to federal district court in Alabama in March 1988. Just prior to that time, Hampton amended his complaint against IB & MReC alleging further fraud by IB & MReC by its representations to him that F-187 had IYC. At trial, the parties stipulated to many facts, the most important of which for our purposes are the following: 1) that F-187 was not eligible for IYC in crop year 1985 due to applicable FCIC regulations, 2) that F-187 was not eligible for IYC in crop year 1985 under the insurance policy issued by IB & MReC to Hampton thereon, 3) that Pruett was a licensed soliciting agent for IB & MReC when Hampton applied for MPCI with IB & MReC in 1985, and 4) that Pruett knew or should have known that F-187 was not eligible for IYC at the time Hampton applied for IYC on February 28, 1985. The case went to trial in late April 1989. Primarily by his own testimony, Hampton put on evidence that he was damaged by IB & MReC’s alleged fraud in the amount of $40,000 in farming losses for the 1985 year, $37,000 in losses from the sale of soybean equipment, and $23,505 in losses from the difference between the IYC he thought he had on F-187 and the area coverage which he actually had. His complaint prayed for $750,000 in damages, including mental anguish and punitive damages. IB & MReC moved for a directed verdict at the close of Hampton’s evidence arguing, inter alia, that the evidence produced by Hampton did not show fraud or fraudulent misrepresentations. The district court granted a directed verdict with respect to Hampton’s bad faith claim. But the district court concluded that the case should go to the jury on the claims of innocent and willful fraud connected to IB & MReC’s knowledge of the ineligibility of F-187 for IYC. The district court relied on the stipulation that in February 1985 Pruett knew or should have known that F-187 was ineligible for IYC to send the case to the jury as to IB & MReC’s like knowledge. IB & MReC put on its case, and after-wards the whole case was submitted to the jury for determination of the fraud claims for compensatory and punitive damages. After a little more than an hour’s deliberation, the jury returned a general verdict of $350,000 for Hampton. IB & MReC filed a motion for JNOV or in the alternative for a new trial or for amendment or vacation of the judgment. The motion again argued that Hampton had failed to show fraud or misrepresentation by IB & MReC sufficient to support a verdict against it, but again was denied by the district court. IB & MReC took this appeal advancing error by the district court for failure to grant the JNOV motion. II. ANALYSIS The question in this case is whether IB & MReC’s acts constituted intentional fraud under the law of Alabama, and we begin with an overview of that law. The elements of fraud in Alabama have been recently described as follows: 1) misrepresentation of a material fact; 2) made willfully to deceive, or recklessly without knowledge; 3) which was justifiably relied upon by the plaintiff under the circumstances; and 4) which caused damage as a proximate consequence. Ramsay Health Care, Inc. v. Follmer, 560 So.2d 746, 749 (Ala.1990) (citation omitted). See also AT & T Information Systems v. Cobb Pontiac-Cadillac, 553 So.2d 529, 532 (Ala.1989) (quoting Padgett v. Hughes, 535 So.2d 140, 142 (Ala.1988)); Leisure American Resorts, Inc. v. Knutilla, 547 So.2d 424, 426 (Ala.1989); Ala.Code § 6-5-101 (1975). If met, the elements above entitle a plaintiff to compensatory damages. Hampton sought and received punitive damages as well. Punitive damages are recoverable in fraud actions only where the plaintiff has proven the defendant had knowledge of the falsity of a material misrepresentation made by him, State Farm Fire & Cas. Ins. v. Lynn, 516 So.2d 1373, 1376 (Ala.1987), or where “the misrepresentation is made so recklessly and heedlessly as to amount to the same thing as knowledge of its falsity.” Id. (citation omitted). Said another way, there must be “evidence from which the jury can reasonably infer an intent to deceive or defraud.” Alfa Mutual Ins. Co. v. Northington, 561 So.2d 1041, 1046 (Ala.1990) (emphasis added). Finally, with respect to Alabama law, we consider the extent to which IB & MReC can be guilty of fraud committed by its agents. “[I]t is old learning that the misrepresentations of material facts made by an agent, which are made within the scope of the agent’s authority, are imputable to the principal.” Leisure, 547 So.2d at 426 (citations omitted). Hampton has alleged that the combined acts of several of IB & MReC agents amount to fraud. Such combined acts can amount to fraud by a corporation, even where an individual agent may lack the requisite intent to commit fraud. Id. Taking the applicable law above, we now apply it to the facts of this case, which we have taken in the light most favorable to Hampton in keeping with our review of the district court’s denial of JNOV to IB & MReC. “A mere scintilla of evidence is insufficient to present a question for the jury.” Boeing Company v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). The Eleventh Circuit has consistently applied the standard from Boeing. See Adams v. Bainbridge-Decatur County Hosp. Auth., 888 F.2d 1356, 1363 n. 18 (11th Cir.1989); American Family Life Assur. Co. v. U.S. Fire Co., 885 F.2d 826, 830 (11th Cir.1989). The scintilla rule no longer obtains under Alabama law, Ala.Code § 12-21-12 (Cum.Supp.1989), but was applicable when this case was first filed. We think the Eleventh Circuit rule applied in Boeing would, in any event, control on this issue. We will reverse the district court’s denial of JNOV if “the evidence so strongly points in favor of one party that reasonable men could not reach a contrary verdict.” Iervolino, 796 F.2d at 1419 (citations omitted). We believe the evidence here does so strongly point in favor of IB & MReC on the question of intentional fraud. We will first assume that all of Pruett’s knowledge (if any) with respect to F-187 is imputable to IB & MReC, though IB & MReC has advanced arguments that Pruett’s knowledge was acquired by him as an agent of the FCIC, not of IB & MReC, and though we are not convinced that such an assumption is correct. Nevertheless, making the assumption, we can conclude that IB & MReC knew or should have known that F-187 was ineligible for IYC in 1985, as it was stipulated that Pruett knew or should have known that fact. If the jury concluded that Pruett (and perhaps IB & MReC) knew of F-187’s ineligibility for IYC, most of the elements of fraud are present to this point. IB & MReC would have falsely represented a material fact to Hampton — that F-187 could be insured by IYC. Hampton would have relied on that representation to his proximate damage by planting soybeans on F-187 and sustaining a loss. However, that is not the end of our inquiry. The stipulation as to Pruett’s knowledge allows room to conclude only that Pruett (and perhaps IB & MReC) should have known of F-187’s ineligibility. More importantly, the question remains whether IB & MReC intended to commit a fraud against Hampton (i.e., willfully to deceive him) by representing to him that F-187 had IYC when IB & MReC knew or should have known that F-187 did not qualify for IYC and by ultimately denying IYC on F-187 pursuant to FCIC regulations. We must put together the knowledge of Pruett (imputed to IB & MReC) with the actions of IB & MReC (the representations to Hampton of IYC for F-187 and later denial of IYC) to determine whether IB & MReC had the requisite intent to defraud Hampton. We conclude that IB & MReC did not make the representations that F-187 had IYC willfully to deceive Hampton. IB & MReC could only cover F-187 to the extent allowed per FCIC regulations. That it might be said that IB & MReC knew or should have known that F-187 was not eligible for IYC does not mean that IB & MReC made false representations with knowledge or an intent to deceive Hampton. The evidence is to the contrary. Both Hampton and Pruett testified that the latter did not intend to deceive the former. Nothing in our review of the record shows knowledge, intent, or recklessness amounting to the equivalent of intent on IB & MReC’s part to support either all the compensatory or any punitive damages verdicts based on fraud under the law of Alabama. Because of its distinctive facts, comparison to the case of Alfa, su-pra, illustrates why wé reach our result in this case. In Alfa, Northington paid a premium up front on a policy covering his mobile home. He was induced to do so on the intentional misrepresentation that the policy covered theft, which it did not. Northington sued Alfa after it refused to indemnify him for losses due to theft from his mobile home. The Alabama Supreme Court upheld compensatory damages of some $3,000 and punitive damages of $300,000 against Alfa based on the intentional misrepresentation to Northington by Alfa’s selling agent. Though the Alabama Supreme Court concluded that intentional misrepresentation had induced Northington to purchase the policy, we do not conclude, sub judice, that IB & MReC had any intent to deceive Hampton to induce him to purchase a policy. While IB & MReC’s actions where a bit like not letting the right hand know what the left was doing, and probably poor business practice, we conclude that reasonable minds could not reach a finding of intentional fraud to support all the compensatory or any punitive damages. The district court, therefore, erred by denying IB & MReC’s motion for JNOV on the claims of fraud, and its judgment is reversed as to all damages save those that may lie in the difference between IYC and area coverage on F-187. We cannot say from the general verdict how the jury attributed damages, if at all. We have concluded that as a matter of law the punitive damages and most of the compensatory damages sought cannot here be based on intentional fraud. Because the record evidence does not precisely determine the indemnity Hampton would have received under IYC over and above what he did receive under area coverage on F-187, the case is remanded on that point. III. CONCLUSION This was not a case of someone changing the rules in the middle of the game. That’s generally intentional fraud on someone’s part. Here the rules were changed by the FCIC before the beginning of the 1985 season. Hence, this was more of a case of invoking the rules late in the game. A late invocation of the rule book by IB & MReC is the most the record evidence shows in this case, thus IB & MReC should have been granted its JNOY motion, and the judgment of the district court is reversed accordingly. However, because the evidence may demonstrate what the district court characterized as fraud by mistake, the case is remanded for determination of the difference between IYC and area coverage on F-187. . Because we are reviewing the district court's denial of JNOV to IB & MReC, our consideration and recitation of the facts is in the light most favorable to the nonmovant, Hampton. Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir.1989), cert. denied,-U.S. -, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990); Iervolino v. Delta Air Lines, Inc., 796 F.2d 1408, 1418 (11th Cir.1986), cert. denied, 479 U.S. 1090, 107 S.Ct. 1300, 94 L.Ed.2d 155 (1987). . The current provisions of the United States Code relating to the FCIC are found at 7 U.S.C. §§ 1501-1520 (1988). . All the stipulated facts appear in the Record on Appeal, Vol. 4 at 54-59. . While the district court first suggested that it thought the breach of contract claim should go to the jury, Record on Appeal, Vol. 6 at 522, the court later refused the plaintiff's suggested instructions relating to contract damages as inapplicable. Record on Appeal, Vol. 2, Plaintiff’s Requested Jury Instructions at 7-8. The jury was instructed only on the fraud claims. Record on Appeal, Vol. 7 at 845-46. . For extensive discussions of the law of fraud in Alabama see both the majority and concurring/dissenting opinions in First Alabama Bank of Montgomery v. First State Ins. Co., 899 F.2d 1045 (11th Cir.1990). . We note that Hampton has made much of his efforts to convert his soybean farms into cattle and catfish operations. Likewise he testified that he would not have put in soybeans in 1985 if he had known F-187 was ineligible for IYC. Rather, he would have continued the enlargement of his cattle and catfish farms. Further, he has suggested that the evidence tends to show that Pruett knew all of this when he advised Hampton as to MPCI in February of 1985. While this evidence may be relevant as to the extent of Hampton’s reliance on the representations that he had IYC, we do not consider it as any evidence of intent on the part of IB & MReC to defraud Hampton. . Hampton has pointed to evidence that an employee of IB & MReC at its Charlotte claims office prevaricated in her description of how the decision to cover a farm by IYC or area coverage is made. At one time in correspondence to Hampton in February 1986, she indicated the local actuarial office controlled the determination, but later she testified at trial that it was strictly the decision of the claims office. We do not think that this information could have been relied on by Hampton at all in his decision to apply for IYC in February of 1985. We conclude that, while the information supplied to Hampton may have been misleading, it falls well short of a deception that could support a claim of fraud from a year earlier. Part of the problem with MPCI in this regard seems to be that an insured can apply for one type of coverage, but receive another because a final determination by the insurer of the eligibility of the insured's farm is not made concurrently with the insured’s application. . Because of the disposition we have given this case, we do not reach IB & MReC’s question about its immunity from punitive damages as an agent of the FCIC. . See Record on Appeal, Vol. 6 at 523. The district court, though ultimately letting the case go to the jury on all the fraud counts for compensatory and punitive damages, responded in part to IB & MReC's first motion for a directed verdict that there was a lack of intent to support punitive damages. We agree. Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"? A. motor vehicle B. airplane C. product liability D. federal employer liability; injuries to dockworkers and longshoremen E. other government tort liability F. workers compensation G. medical malpractice H. other personal injury I. fraud J. other property damage K. other torts Answer:
songer_othcrim	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". ENGINE SPECIALTIES, INC., Plaintiff-Appellee, v. BOMBARDIER LIMITED, Defendant-Appellant. No. 71-1293. United States Court of Appeals, First Circuit. Heard Nov. 3, 1971. Decided Jan. 20, 1972. John Vanderstar, Washington, D. C., with whom George H. Lewald, William L. Patton, Ropes & Gray, Boston, Mass., and Covington & Burling, Washington, D. C., were on brief, for defendant-appellant. Thayer Fremont-Smith, Boston, Mass., with whom Robert S. Frank, Jr., and Choate, Hall & Stewart, Boston, Mass., were on brief for plaintiff-appellee. Before ALDRICH, Chief Judge, BREITENSTEIN, Senior Circuit Judge, and COFFIN, Circuit Judge. Of the Tenth Circuit, sitting by designation. BREITENSTEIN, Senior Circuit Judge. This appeal relates to the grant of a preliminary injunction, and not to the merits of the controversy. Plaintiff-ap-pellee, Engine Specialties, Inc. (ESI), sought and obtained a preliminary injunction restraining defendant-appellant, Bombardier, Ltd. (Bombardier), from marketing in North America certain mini-bikes or mini-cycles manufactured by an Italian corporation, Agra-ti-Garelli, S.p.A. (Agrati). ESI, a Pennsylvania corporation with its principal office in that state, distributes recreational vehicles including mini-cycles. ESI had contracted with Agrati for Agrati to manufacture and sell mini-cycles to ESI for distribution under ESI’s trade name “Bronco.” ESI’s action was based on claims that Bombardier, a Canadian corporation which manufactures snowmobiles, had tortiously induced Agrati to breach its contract with ESI, had maliciously interfered with a profitable business relationship between ESI and Agrati, and had violated the federal anti-trust laws. Agrati is not a party to the action. The district court, D.C., 330 F.Supp. 762, after finding that ESI was likely to prevail on the merits and was suffering irreparable harm, entered a preliminary injunction against Bombardier. The initial 1967 ESI-Agrati contract was supplemented in 1968 and 1970. The 1968 agreement covered further sales of mini-cycles to ESI by Agrati, shipping schedules, and procedures concerning letters of credit. It also provided that after one year either party could cancel the agreement upon six months notice, and that, if Agrati can-celled, it would be precluded from selling in North America certain mini-cycles for one or two years depending on the model involved. The 1970 agreement, among other things, amended the 1968 agreement so that any default by ESI continuing for 20 days would terminate the 1968 agreement, and more importantly would void the covenant not to compete. In August, 1970, representatives of Bombardier and Agrati met in Canada to discuss possible arrangements between them for the manufacture and sale of mini-cycles in the United States and Canada. Nothing concrete came of that meeting, but as the discussions progressed Bombardier became aware of the ESI-Agrati contract. Bombardier unsuccessfully attempted to persuade ESI to relinquish its distributorship contract. On September 16, Agrati decided to invoke the six-month termination clause and, thereafter, Bombardier and Agrati discussed possible methods of “getting around” the covenant not to compete. The course of business dealings between Agrati and ESI had not complied strictly with their contractual agreements. At various times issues arose over shipping schedules and letters of credit which.might have indicated a default by one of the parties. Neither party was inflexible, and matters were amicably settled. On October 16, 1970, Agrati wrote ESI, complained about letters of .credit and shipping schedules, and said that because of irregularities ESI was considered to be in default of the 1968 agreement. However, on October 19 Agrati telephoned ESI and agreed to new shipping schedules. By an October 26 letter to Agrati, ESI contested the default claim and asserted that the difficulties had been caused by Agrati, that the October 19 telephone conversation had taken care of the matter, and that ESI had complied with the shipping agreements. On November 6, Agrati cabled ESI and demanded that letters of credit be opened for forthcoming shipments. On November 7, Bombardier and Agrati representatives met in Philadelphia. On November 15, ESI cabled Agrati in response to the November 6 cable and requested a shipment delay of 10-15 days. By a November 25 letter Agrati wrote ESI that the 1968 and 1970 agreements had been immediately terminated because of ESI’s failure to open letters of credit and meet shipping schedules. Since then, Agrati has refused to supply ESI with mini-cycles or parts. On December 8, ESI opened a letter of credit for the November shipment and so informed Agrati. In reply Agrati confirmed the November 25 letter and said that further inquiries should be made through their lawyers. Since December, Agrati has supplied Bombardier with Bronco-type mini-cycles for distribution in the United States and Canada. Bombardier was served by mail at its corporate headquarters in Canada. The first question is whether extraterritorial service suffices to subject Bombardier to in personam jurisdiction. Reliance is had on the Massachusetts long arm statute and on the federal anti-trust statutes. The record is unclear as to which basis was held by the trial court to sustain its jurisdiction. The applicable provisions of the Massachusetts long arm statute are, Mass. G.L. c. 223A, § 3: “A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s * * * (d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this commonwealth; * * ESI has no offices or place of business in Massachusetts. Bombardier does not have a place of business in Massachusetts, but does have one of its two wholly owned American subsidiaries there. Agrati has no place of business in Massachusetts. The applicability of the statute depends on whether there has been a “tor-tious injury in [the] commonwealth” as the result of Bombardier’s actions. See, e. g., Mark v. Obear & Sons, Inc., D. Mass., 1970, 313 F.Supp. 373. Bombardier says that any measure of injury would be the loss of ESI profits and that such loss would occur at ESI’s principal place of business, in Pennsylvania. ESI responds that in 1970 more than $130,000 worth of mini-cycles were sold by its franchised distributor in Massachusetts and that its sales and goodwill obtained, in part by advertising in the commonwealth have been injured by Bombardier’s sale of Bronco-type mini-cycles. In our opinion the claim of impairment of ESI’s Massachusetts business is a sufficient assertion of tortious injury in the commonwealth. Bombardier says that if the action satisfies the requirements of the long arm statute, its application is unconstitutional in the light of the principles of fairness and convenience set forth in International Shoe Co. v. Washington, 1945, 326 U.S. 310, 316-317, 66 S.Ct. 154, 90 L.Ed. 95. Bombardier’s efforts to minimize its contacts in Massachusetts are not impressive. It has there a wholly owned subsidiary, Bombardier > East, with interlocking directors and officers. In 1970 it sold $5,325,000 worth of products to its subsidiary. The parent exercises financial and managerial supervision over its subsidiary and carries on extensive sales campaigns in Massachusetts. We recognized in Seymour v. Parke, Davis & Company, 1 Cir., 1970, 423 F.2d 584, 585-586, that International Shoe, by substituting principles of fairness and convenience for earlier concepts of presence, restricts as well as enlarges jurisdictional concepts. In Seymour, a Massachusetts resident was injured in that state but, because its statute of limitations had run, brought suit in New Hampshire under its long arm statute. The plaintiff had no contracts with New Hampshire and the defendant’s activities in that state were advertising and employing salesmen to solicit orders. We held that the lack of fairness prevented the assumption of jurisdiction, and recognized an exception when the defendant; had significantly entered the business life of the forum community. Ibid, at 587. Bombardier significantly entered the business life of Massachusetts. Having done so, it may not now avoid the “distasteful consequences” of suit. Volkswagen Interamericana, S. A. v. Rohlsen, 1 Cir., 1966, 360 F.2d 437, 441, cert, denied 385 U.S. 919, 87 S.Ct. 230, 17 L.Ed.2d 143. In our opinion jurisdiction lies under the Massachusetts long arm statute. In the circumstances the^e is no reason to discuss jurisdiction under the federal anti-trust laws. After a hearing at which both sides relied on a mass of affidavits, depositions, and documents, the court granted the preliminary injunction which' is now under attack. To prevail Bombardier has the heavy burden of showing a clear error of law or an abuse of discretion. Automatic Radio Mfg. Co. v. Ford Motor Company, 1 Cir., 1968, 390 F.2d 113, 115, cert, denied 391 U.S. 914, 88 S.Ct. 807, 20 L.Ed.2d 653. The clearly erroneous rule is applicable even where, as here, a finding is based on documentary evidence or undisputed facts. Leach v. Crucible Center Company, 1 Cir., 1968, 388 F.2d 176, 179. Bombardier attacks three findings of fact. The first relates to the finding that Agrati waived any contract defaults by ESI. On the basis of correspondence and the affidavit of the president of ESI, the court found that the ESI-Agrati course of conduct operated to waive conditions pertaining to letters of credit and shipping schedules and that Agrati's conduct negated the implication that the contract was dead for want of compliance by ESI. Bombardier’s disagreement with the court’s interpretation of the events does not make the finding erroneous. We believe that the court placed a reasonable interpretation on the facts and that its finding of waiver is sustained by the record. Next, Bombardier argues that if there was waiver, the finding that Bombardier had knowledge of it is clearly erroneous. The court painstakingly reviewed the facts and found that the circumstances of the November meeting between Bombardier and Agrati representatives and the initial draft of a Bombardier-Agrati agreement, along with other evidence, established knowledge by Bombardier. Here again the finding has record support and we accept it. Finally, the finding of irreparable injury is attacked. Bombardier argues that ESI had other models of mini-cycles to sell and that its sales do not reflect irreparable harm because of loss of the Agrati line. The trial court ■ pointed out that in addition to loss of an item which ESI had successfully marketed since 1967, “it must compete against the sale of that very item by defendant;” that ESI sales were “markedly o,ff” from preceding years; that its relations with its dealers have been severely impaired; and that these types of harm were not “readily computable or recompensable in money damages.” The Agrati mini-cycles were ESI’s best selling item and there is evidence that the loss of that item had turned ESI from a profitable business into an unprofitable one. An injunction is proper to prevent the threatened extinction of a business, Semmes Motors, Inc. v. Ford Motor Company, 2 Cir., 1970, 429 F.2d 1197, 1205, and to prevent disruption of a company’s relationship with its dealers, Bergen Drug Company, Inc. v. Parke, Davis & Company, 3 Cir., 1962, 307 F.2d 725, 728. We are satisfied with the showing of irreparable injury. Bombardier’s last argument is that the grant of the preliminary injunction was an abuse of discretion. It says that the ESI-Agrati contract contained an arbitration provision which precludes ESI from proceeding against Bombardier. The arbitration agreement was a matter between ESI and Agrati. Bombardier was not a party to it. The inability of ESI to sue Agrati for breach has nothing to do with the tort claim which ESI asserts against Bombardier. The argument that, because the injunction cannot restore the Agrati line to ESI, it serves no purpose other than punishing Bombardier does not impress us. The injunction is preventative because the record shows that Bombardier’s marketing of the Agrati mini-cycles was irreparably injuring ESI. The record convinces us that “the balance of hardships” clearly tips in favor of ESI, Hamilton Watch Co. v. Benrus Watch Co., 2 Cir., 1953, 206 F.2d 738, 740, and that the court did not abuse its discretion in granting the preliminary injunction. The order granting the preliminary injunction is affirmed. . Apparently, a mini-cycle is similar to a light weight motorcycle, and a minibike is somewhat smaller than a mini-cycle. Hereinafter only the term mini-cycle will be used. Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed 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". LEEBY v. UNITED STATES. No. 14306. United States Court of Appeals Eighth Circuit. Nov. 13, 1951. J. F. X. Conmy, Fargo, N. D. (Francis Murphy, Fargo, N. D., on the brief), for appellant. P. W. Lanier, U. S. Atty., Fargo, N. D. (Joseph A. Struett and Marc A. White, Attorneys, Chief Counsel’s Office, Bureau of Internal Revenue, Chicago, 111., on the brief), for appellee. Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges. GARDNER, Chief Judge. Appellant was convicted on an indictment of three counts, each count charging a violation of Section 145(b), Title 26 U.S. C., in that he wilfully and knowingly attempted to defeat and evade a large part of the income tax due and owing by him to the United States of America by filing and causing to be filed with the Collector of Internal Revenue for the District of North Dakota, a false and fraudulent income tax return. The indictment involves the calendar years 1944, 1945 and 1946. The counts are substantially identical except as to the year covered and the amount of alleged income and income tax involved. During the time here involved defendant operated a grocery store, a bakery and lunch counter and did some catering. For the year 1944 he reported an income of $6,217.62; for the year. 1945 he reported an income of $8,149.00, and for the year 1946 he reported an income of $8,839.00. Government witnesses, based upon an examination of defendant’s books in which his daily sales were recorded, his bank statements, check stubs and statements made to them by the defendant as to his earnings in the catering and bakery department, determined defendant’s income for the year 1944 to be $21,128.89, for the year 1945 to be $27,157.27 and for the year 1946 to be $31,149.95. The total amount of income taxes for the three years as paid by defendant was $4,655.89, whereas the amount due according to the government’s calculation was $31,372.51. From the records, statements, books and other information obtained from statements made by defendant and introduced in evidence, the government witnesses prepared certain exhibits. From the same sources the government witnesses prepared a statement of defendant’s assets for the years 1942 to 1946, inclusive, which was signed by the defendant and is known in the record as Exhibit 58. Based upon the éxhibits so prepared, the government witnesses, who were confessedly expert accountants, prepared a net worth computation and a determination of defendant’s aggregate unreported income for the years involved. Defendant also offered a net worth statement This statement omits from his income an item of $12,000.00 cash which defendant claimed to have saved over a period of twenty years and had refrained from depositing in the bank until May 6, 1946, and certain other sums alleged to have been salvaged from his place of business and stock which had been damaged by fire. The details of these calculations we do not deem important for the reasons hereinafter noted. At the close of the government’s case defendant moved for a judgment of acquittal, which motion was denied and the case submitted to the jury on instructions to which defendant took certain exceptions but which are not here urged as grounds for reversal. In seeking reversal defendant contends: (1) the court erred in admitting evidence as to income and claimed tax deficiency in 1942, 1943 and 1947, and in admitting testimony as to the filing by defendant of nontaxable returns for a period of years prior to the times involved in the indictment; (2) the court erred in overruling objections to the government’s net worth summary and the government’s receipts and disbursements summary on the ground that they were inaccurate and included years not covered by the indictment; (3) the court erred in permitting the government to use the net worth method when the receipts and disbursements method was also used; (4) the court erred in permitting testimony that the defendant had violated O.P.A. regulations and had been fined therefor; (5) the court erred in denying his motion for judgment of acquittal interposed at the close of the government’s case. We shall first refer to the claim of error'in denying defendant’s motion for acquittal interposed at the close of the government’s case. It is observed that after this motion was interposed and denied at the close of the government’s case, defendant offered testimony and himself testified in his own behalf. He did not renew this motion at the close of all the evidence. Defendant was entitled to offer evidence in his defense notwithstanding the fact that he had interposed a motion for acquittal at the close of the government’s testimony but by so doing he waived his objection to the ruling of the court in denying his motion and his right to allege this ruling as error, and defendant not having interposed a motion for judgment of acquittal at the close of all the testimony, we cannot now consider the question of the sufficiency of the evidence to sustain the judgment and sentence of conviction. A careful review of the evidence, however, convinces that if the evidence admitted over defendant’s objection was competent, the evidence was abundantly sufficient to sustain the verdict. The question therefore goes to the competency of the evidence, rather than to its sufficiency. There remains for consideration only the rulings of the court challenged by defendant as to the admissibility of evidence. Over defendant’s objection there was received in evidence testimony with reference to defendant’s income during 1942 and 1943. There was also testimony that defendant filed non-taxable returns for the year 1940 and as far back as the year 1930. As to this testimony the court instructed the jury as follows: “With respect to the years prior to 1944, it is presumed that the defendant has complied with the provisions of the internal revenue laws and has filed a return and paid his income tax in each of those years when he had a net income subject to tax. Evidence that he did not file a tax return for any of those prior years or that he filed a nontaxable return may therefore be considered by you as an admission by him that he did not have a net income in excess of the amounts for which he would have been required by law to have filed an income tax return or paid a tax. In that connection, however, I caution you that the defendant is not charged with having violated the income tax law for any years other than for the three years mentioned in the indictment; namely, 1944, 194S and 1946.” In estimating defendant’s income on the receipts and disbursements basis, or on the net worth basis, the witness considered the question of his income or want of income prior to 1944 and we think the testimony was admissible for that purpose and the court carefully limited it to that purpose. Hanson v. United States, 8 Cir., 186 F.2d 61; Schuermann v. United States, 8 Cir.; 174 F.2d 397; Lisansky v. United States, 4 Cir., 31 F.2d 846, 67 A.L.R. 67; United States v. Skidmore, 7 Cir., 123 F.2d 604, 610. In the Skidmore case the trial court gave an instruction as follows: “With respect to the years prior to 1929, it is presumed that the defendant has complied with the provisions of the Internal Revenue Laws and has filed a return and paid his income ta:i in such of those years when he had a net income subject to tax. Evidence that he did not file a tax return for any of these prior years may therefore be considered by you as an admission by him that he did not have a net income in excess of the amounts for which he would have been required by -law to have filed a tax return.” This instruction was approved by the appellate court. In the instant case the court made it very clear to the jury that the defendant was not charged with having violated the income tax law for any years other than those charged in the indictment. The mere fact that this evidence may have pointed to the laxities or offenses is not important if the evidence was pertinent to the issues involved in the instant case. We think the trial court in its instructions pointed out the basis for the admission of this testimony and the limited purpose for which it should be considered by the jury. It was contended by defendant that he had no intention to evade the income taxes, implying that if there was any violation it was inadvertent. His returns for prior years would have some bearing on the question of his intent and also his credibility in testifying that he had not intended to underestimate his income. In Neff v. United States, 8 Cir., 105 F.2d 688, 692, in considering a somewhat similar contention we said: “Questions as to the admissibility of this class of evidence are within the wise discretion of the trial court and its rulings as to the same should not be interfered with by a reviewing court unless it is clear that the questioned evidence has no connection or bearing upon any of the issues involved in the charge. In view of the facts and circumstances disclosed by the record in this case, and the clear and unambiguous instructions of the trial court as to the limited purpose of the evidence, and restricting its effect solely to the question of intent, in our opinion, there was no abuse of discretion on the part of the trial court in the admission of the challenged testimony.” Certainly in view of what is said by us in Hanson v. United States, supra, there was no abuse of discretion in admitting this testimony. It is next urged that the court erred in overruling defendant’s objection to the government’s use of the net worth summary when it had offered a summary of receipts and disbursements. The government’s calculations were based upon the receipts and disbursements method and it submitted in corroboration the net worth summary. The net worth computations were based upon a balance sheet which the government auditors prepared and which the defendant himself signed. The defendant offered in evidence a summary purporting to show his net worth and this summary corroborated to a considerable extent the summary offered by the government. It differed in that the defendant eliminated certain assets confessedly acquired but claimed by him not properly taxable as income. The testimony offered by him in support of this contention, however, was not conclusive on the jury. Defendant insisted that the government’s exhibits were inaccurate because they did not take into account either bills payable or bills receivable. They were prepared, however, on the cash basis and there is nothing to indicate that defendant had adopted the accrual basis of accounting; in fact, so far as he was guided by any acceptable method of calculating income that method was the cash basis as distinguished from the accrual basis. It must be borne in mind that this was not an action to recover the amount of income taxes alleged to be due, nor an action in which it was necessary to determine the exact amount of defendant’s income for the years in question. On this phase of the case all that it was necessary to show was that there was omitted from the reported income a substantial amount. The calculations here were based upon such records and statements as defendant made available, and as said by the Court of Appeals for the Sixth Circuit in Gariepy v. United States, 189 F.2d 459, 462: “At best- it was, of course, but an estimate, but as an estimate it was entitled to the consideration of the jury because based on substantially the entire evidence in the record.” The accuracy of the government’s computations of income based on the receipts and disbursements method is corroborated by the fact that the amount of income as determined by that method is substantially the same as determined by the government’s net worth calculation. But we are not here dealing with the weight or conclusiveness of the evidence but rather to its admissibility and we think it was competent to permit the government to submit its estimates of income based upon the two methods invoked as the basic facts of both calculations were all before the jury. Hanson v. United States, supra. It is seriously urged that the defendant was prejudiced by the ruling of the court admitting reference to the fact that defendant had been fined for violation of the O.P.A. regulations. When the government’s auditors were checking defendant’s accounts defendant advised that he had had difficulties with the O.P.A. and had been required to deposit a bond of $1,000.00 and that he had to pay certain fines so that there was but $600.00 returned to him. These transactions had to be accounted for in the net worth statement as well as in the receipts and' disbursements statement. In the receipts and disbursements statement the $600.00 was shown as a credit against the total deposits. In the net worth statement the fines paid were set up as an unallowable expense. Defendant’s counsel in cross-examining one of the government’s expert witnesses, brought out the fact that the exhibit prepared by him showed a gross profit in excess of 50 per cent whereas the grocer’s mark-up cost had a range of from 15 to 21 per cent. In this connection we think it was proper to show that the defendant had been charging more than the •ordinary or accepted gross profit on his sales and in that connection the government was permitted to show that the defendant had been selling at a price exceeding the ceiling price. There was no abuse of discretion in admitting this testimony especially in view of the instruction of the court that the defendant was being tried only for the charges contained in the indictment. Harper v. United States, 8 Cir., 143 F.2d 795; Neff v. United States, supra; Diehl v. United States, 8 Cir., 98 F.2d 545, 548. In the last cited case we said: “Even though the evidence complained of was incompetent, its admission, over the objection made to it, would not justify a reversal in this case, where there was an abundance of competent evidence to sustain the verdict of the jury and the trial was in all other respects fair and impartial.” Convinced as we are that the defendant had a fair trial the judgment appealed from 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:
sc_respondent	067	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. CITIZENS BANK OF MARYLAND v. STRUMPF No. 94-1340. Argued October 3, 1995 Decided October 31, 1995 Scalia, J., delivered the opinion for a unanimous Court. Irving E. Walker argued the cause for petitioner. With him on the briefs were James R. Eyler and Jefferson V. Wright. Miguel A. Estrada argued the cause for the United States as amicus curiae urging reversal.. With him on the brief were Solicitor General Days, Assistant Attorney General Argrett, Deputy Solicitor General Wallace, Kent L. Jones, and Gary D. Gray. Roger Schlossberg argued the cause for respondent. With him on the brief were John R. Owen, Jr., Brian R. Seeber, and Gregory P. Johnson. Briefs of amici curiae urging reversal were filed for BankAmerica Corp. by Harold R. Lichterman and Michael J. Halloran; and for the New York Clearing House Association et al. by Bruce E. Clark, Norman R. Nelson, John J. Gill III, Michael F. Crotty, Leonard J. Rubin, John H. Culver III, and Charles R Seibold. Justice Scalia delivered the opinion of the Court. We must decide whether the creditor of a debtor in bankruptcy may, in order to protect its setoff rights, temporarily withhold payment of a debt that it owes to the debtor in bankruptcy without violating the automatic stay imposed by 11 U.S. C. § 362(a). I On January 25,1991, when respondent filed for relief under Chapter 13 of the Bankruptcy Code, he had a checking account with petitioner, a bank conducting business in the State of Maryland. He also was in default on the remaining balance of a loan of $5,068.75 from the bank. Under 11 U. S. C. § 362(a), respondent’s bankruptcy filing gave rise to an automatic stay of various types of activity by his creditors, including “the setoff of any debt owing to the debtor that arose before the commencement of the [bankruptcy case] against any claim against the debtor.” § 362(a)(7). On October 2, 1991, petitioner placed what it termed an “administrative hold” on so much of respondent’s account as it claimed was subject to setoff — that is, the bank refused to pay withdrawals from the account that would reduce the balance below the sum that it claimed was due on respondent’s loan. Five days later, petitioner filed in the Bankruptcy Court, under § 362(d), a “Motion for Relief from Automatic Stay and for Setoff;” Respondent then filed a motion to hold petitioner in contempt, claiming that petitioner’s administrative hold violated the automatic stay established by § 362(a). The Bankruptcy Court ruled on respondent’s contempt motion first. It concluded that petitioner’s “administrative hold” constituted a “setoff” in violation of § 362(a)(7) and sanctioned petitioner. Several weeks later, the Bankruptcy Court granted petitioner’s motion for relief from the stay and authorized petitioner to set off respondent’s remaining checking account balance against the unpaid loan. By that time, however, respondent had reduced the checking account balance to zero, so there was nothing to set off. The District Court reversed the judgment that petitioner had violated the automatic stay, concluding that the administrative hold was not a violation of § 362(a). The Court of Appeals reversed. “[A]n administrative hold,” it said, “is tantamount to the exercise of a right of setoff and thus violates the automatic stay of § 362(a)(7).” 37 F. 3d 155, 158 (CA4 1994). We granted certiorari. 514 U. S. 1035 (1995). II The right of setoff (also called “offset”) allows entities that owe each other money to apply their mutual debts against each other, thereby avoiding “the absurdity of making A pay B when B owes A.” Studley v. Boylston Nat. Bank, 229 U. S. 523, 528 (1913). Although no federal right of setoff is created by the Bankruptcy Code, 11 U. S. C. § 553(a) provides that, with certain exceptions, whatever right of setoff otherwise exists is preserved in bankruptcy. Here it is undisputed that, prior to the bankruptcy filing, petitioner had the right under Maryland law to set off the defaulted loan against the balance in the checking account. It is also undisputed that under § 362(a) respondent’s bankruptcy filing stayed any exercise of that right by petitioner. The principal question for decision is whether petitioner’s refusal to pay its debt to respondent upon the latter’s demand constituted an exercise of the setoff right and hence violated the stay. In our view, petitioner’s action was not a setoff within the meaning of § 362(a)(7). Petitioner refused to pay its debt, not permanently and absolutely, but only while it sought relief under § 362(d) from the automatic stay. Whether that temporary refusal was otherwise wrongful is a separate matter — we do not consider, for example, respondent’s contention that the portion of the account subjected to the “administrative hold” exceeded the amount properly subject to setoff. All that concerns us here is whether the refusal was a setoff. We think it was not, because — as evidenced by petitioner’s “Motion for Relief from Automatic Stay and for Setoff” — petitioner did not purport permanently to reduce respondent’s account balance by the amount of the defaulted loan. A requirement of such an intent is implicit in the rule followed by a majority of jurisdictions addressing the question, that a setoff has not occurred until three steps have been taken: (i) a decision to effectuate a setoff, (ii) some action accomplishing the setoff, and (iii) a recording of the setoff. See, e. g., Baker v. National City Bank of Cleveland, 511 F. 2d 1016, 1018 (CA6 1975) (Ohio law); Normand Josef Enterprises, Inc. v. Connecticut Nat. Bank, 230 Conn. 486, 504-505, 646 A. 2d 1289, 1299 (1994). But even if state law were different, the question whether a setoff under §362(a)(7) has occurred is a matter of federal law, and other provisions of the Bankruptcy Code would lead us to embrace the same requirement of an intent permanently to settle accounts. Section 542(b) of the Code, which concerns turnover of property to the estate, requires a bankrupt’s debtors to “pay” to the trustee (or on his order) any “debt that is property of the estate and that is matured, payable on demand, or payable on order . . . except to the extent that such debt may be offset under section 553 of this title against a claim against the debtor.” 11 U. S. C. § 542(b) (emphasis added). Section 553(a), in turn, sets forth a general rule, with certain exceptions, that any right of setoff that a creditor possessed prior to the debtor’s filing for bankruptcy is not affected by the Bankruptcy Code. It would be an odd construction of § 362(a)(7) that required a creditor with a right of setoff to do immediately that which § 542(b) specifically excuses it from doing as a general matter: pay a claim to which a defense of setoff applies. Nor is our assessment of these provisions changed by the fact that § 553(a), in generally providing that nothing in the Bankruptcy Code affects creditors’ prebankruptcy setoff rights, qualifies this rule with the phrase “[e]xcept as otherwise provided in this section and in sections 362 and 363.” This undoubtedly refers to § 362(a)(7), but we think it is most naturally read as merely recognizing that provision’s restriction upon when an actual setoff may be effected — which is to say, not during the automatic stay. When this perfectly reasonable reading is available, it would be foolish to take the § 553(a) “except” clause as indicating that § 362(a)(7) requires immediate payment of a debt subject to setoff. That would render §553(a)’s general rule that the Bankruptcy Code does not affect the right of setoff meaningless, for by forcing the creditor to pay its debt immediately, it would divest the creditor of the very thing that supports the right of setoff. Furthermore, it would, as we have stated, eviscerate § 542(b)’s exception to the duty to pay debts. It is an elementary rule of construction that “the act cannot be held to destroy itself.” Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 446 (1907). Finally, we are unpersuaded by respondent’s additional contentions that the administrative hold violated §§ 362(a)(3) and 362(a)(6). Under these sections, a bankruptcy filing automatically stays “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate,” 11 U. S. C. § 362(a)(3), and “any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title,” § 362(a)(6). Respondent’s reliance on these provisions rests on the false premise that petitioner’s administrative hold took something from respondent, or exercised dominion over property that belonged to respondent. That view of things might be arguable if a bank account consisted of money belonging to the depositor and held by the bank. In fact, however, it consists of nothing more or less than a promise to pay, from the bank to the depositor, see Bank of Marin v. England, 385 U. S. 99, 101 (1966); Keller v. Frederickstown Sav. Institution, 193 Md. 292, 296, 66 A. 2d 924, 925 (1949); and petitioner’s temporary refusal to pay was neither a taking of possession of respondent’s property nor an exercising of control over it, but merely a refusal to perform its promise. In any event, we will not give § 362(a)(3) or § 362(a)(6) an interpretation that would proscribe what §542(b)’s “exception]” and §553(a)’s general rule were plainly intended to permit: the temporary refusal of a creditor to pay a debt that is subject to setoff against a debt owed by the bankrupt. The judgment of the Court of Appeals for the Fourth Circuit is reversed. It is so ordered. We decline to address respondent’s contention, not raised below, that the confirmation of his Chapter 13 Plan under 11 U. S. C. § 1327 precluded petitioner’s exercise of its setoff right. See Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 39 (1989). Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. 'CENTRAL IOWA POWER COOPERATIVE, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ALEXANDRIA BOARD OF PUBLIC WORKS, MINNESOTA, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Central Iowa Power Cooperative, et al., Intervenors. PUBLIC UTILITIES COMMISSION OF the STATE OF SOUTH DAKOTA, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Central Iowa Power Cooperative, et al., Intervenors. Nos. 77-1914, 77-1916 and 77-1924. United States Court of Appeals, District of Columbia Circuit. Argued Nov. 30,1978. Decided July 9, 1979. James F. Fairman, Jr., Washington, D. C., with whom John C. Scott and Susan M. Jenkins, Washington, D. C., were on the brief, for petitioners in No. 77-1916. Alan J. Roth, Washington, D. C., with whom Robert C. McDiarmid, George Spiegel, Sandra J. Strebel, and Frances E. Francis, Washington, D. C., were on the brief, for petitioners in No. 77-1924. William J. Madden, Jr., Washington, D. C. , with whom Donald K. Dankner, Washington, D. C., was on the brief, for petitioners in No. 77-1914 and intervenors in Nos. 77-1916 and 77-1924. James E. Rogers, Jr., Atty., Federal Energy Regulatory Commission, Washington, D. C., with whom Howard E. Shapiro, Solicitor, Federal Energy Regulatory Commission, Washington, D. C., was on the brief, for respondent. Philip R. Telleen, Atty., Federal Energy Regulatory Commission, Washington, D. C., also entered an appearance for respondent. Before TAMM and ROBINSON, Circuit Judges, and JOHN H. PRATT, United States District Judge for the District of Columbia. Opinion for the court filed by TAMM, Circuit Judge. Sitting by designation pursuant to 28 U.S.C. § 292(a). TAMM, Circuit Judge: This case involves challenges to provisions of the Mid-Continent Area Power Pool (MAPP) Agreement. The Federal Power Commission (Commission) found that the membership criteria of the Agreement were discriminatory and ordered modifications. The Commission approved the Agreement in all other respects. For the reasons that follow, we affirm the Commission’s decision. BACKGROUND In 1972, thirty-one electric power systems signed the MAPP Agreement. The original parties to the Agreement were twelve investor-owned utilities, eight cooperative corporations, eight municipal systems, two state public power districts, and the Federal Bureau of Reclamation. The Agreement covers the mid-continent area of Minnesota, Iowa, North and South Dakota, Nebraska, eastern Montana, western Illinois, and Wisconsin. The Agreement is designed to promote reliable and economical operation of the interconnected electric network in the mid-continent area, primarily through reserve sharing to back up large generating units. Although the Agreement does not establish a fully integrated electric system with central dispatch of generating units, it provides a mechanism for coordinated daily operation of generation facilities and seeks to promote the staggered construction of new generation units. Each participant retains responsibility for serving its customers’ demands. Exchanges of power under the Agreement are on a short-term basis and may not be used to fulfill long-term needs. The Agreement does not preclude participants from entering into other joint arrangements for power pooling, nor does it compel or restrict installation of new facilities. The MAPP participants filed the Agreement with the Commission as required under section 205 of the Federal Power Act (Act), 16 U.S.C. § 824d (1976). After hearings, an administrative law judge (ALJ) approved the Agreement in its entirety. Joint Appendix (J.A.) II at 345. On review of the ALJ’s decision, the Commission held that, with the exception of the membership provisions, the Agreement was just, reasonable, and nondiscriminatory and did not violate antitrust law or policy. Id. at 403. Three sets of petitioners seek review of the Commission’s decision in this court. Petitioners Alexandria Board of Public Works, et al. (Alexandria) consist primarily of municipal electric utility systems, rural electric cooperatives, farm organizations, and state power-planning agencies in the mid-continent area. Petitioner Public Utilities Commission of the State of South Dakota (South Dakota) is authorized under the laws of South Dakota to determine rates for private electric companies, define service territories for cooperative, municipal and private electric systems, rule on some securities matters and license certain plant facilities. Petitioners Central Iowa Power Cooperative, et al. (Central Iowa) are the original full membership nonfederal participants in the Agreement. ANTITRUST CONTENTIONS Alexandria attacks the Commission’s approval of the MAPP Agreement primarily on antitrust grounds. Although the Commission lacks authority to adjudicate violations of the antitrust laws, it must consider competitive factors when acting under the public interest mandate of the Act. Central Power & Light Co. v. FERC, 188 U.S.App.D.C. 56, 57, 575 F.2d 937, 938 (per curiam), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 652 (1978). In Gulf States Utilities Co. v. FPC, 411 U.S. 747, 93 S.Ct. 1870, 36 L.Ed.2d 635 (1973), the Supreme Court stated that the Commission has “responsibility to consider, in appropriate circumstances, the anticompetitive effects of regulated aspects of interstate utility operations pursuant to §§ 202 and 203, and under like directives contained in §§ 205, 206, and 207” of the Act. Id. at 758-59, 93 S.Ct. at 1878; see FPC v. Conway Corp., 426 U.S. 271, 278-79, 96 S.Ct. 1999, 48 L.Ed.2d 626 (1976). Congress has decided, as a matter of general policy, that power pooling arrangements, rather than unrestrained competition between electric facilities, are in the public interest. Section 202(a) of the Act, 16 U.S.C. § 824a(a) (1976), provides: For the purpose of assuring an abundant supply of electric energy throughout the United States with the greatest possible economy and with regard to the proper utilization and conservation of natural resources, the Commission is empowered and directed to divide the country into regional districts for the voluntary interconnection and coordination of facilities for the generation, transmission, and sale of electric energy .... It shall be the duty of the Commission to promote and encourage such interconnection and coordination within each such district and between such districts. In enacting this section, Congress was “confident that enlightened self-interest will lead the utilities to cooperate ... in bringing about the economies which can alone be secured through planned coordination.” S.Rep.No.621, 74th Cong., 1st Sess. 49 (1935). Thus, when the Commission determines the lawfulness of a power pooling arrangement challenged on antitrust grounds, it is to be guided by the clear congressional policy of section 202(a). Specifically, the Commission must consider whether the arrangement imposes negative restrictions on competition, whether such restrictions are reasonably related to valid purposes of the power pool, and whether the arrangement is, on the whole, in the public interest. See generally City of Huntingburg v. FPC, 162 U.S.App.D.C. 236, 238, 498 F.2d 778, 788 (1974). See also Northern Natural Gas Co. v. FPC, 130 U.S. App.D.C. 220, 226-28, 399 F.2d 953, 959-61 (1968). Alexandria presents several antitrust arguments. First, it alleges that the MAPP Agreement represents unlawful price-fixing under section 1 of the Sherman Act, 15 U.S.C. § 1 (1976), and section 10(h) of the Federal Power Act, 16 U.S.C. § 803(h) (1976). The Agreement contains a series of service schedules that set forth rates for the furnishing of power thereunder. Alexandria presented no evidence directly related to these schedules, but contended that the schedules represented per se violations of the antitrust laws. The ALJ ruled, and the Commission agreed, that the rate schedules did not constitute unlawful price-fixing. The ALJ explained: This is not a combination of sellers conspiring to fix a uniform price in which they will sell goods to outside parties. It is a group of participants who expect over the course of time to be buyers as often as they are sellers. This concept is basic to the equitable utilization of the MAPP service schedules. We hold that establishing a price for the short-term power services available under the Agreement is reasonably necessary to the functioning of the cooperative arrangement undertaken pursuant to section 202. Although the pricing provisions restrict competition in transactions between pool members, they insure that costs and benefits of the power pool will be shared fairly and predictably. Moreover, some exchanges of power between the participants may take place so rapidly that price negotiations at the time of exchange would be difficult. Since the schedules are reasonably necessary to the pooling arrangement, we affirm the Commission's judgment that the rate provisions of the various schedules do not render the Agreement inconsistent with the public interest. See Broadcast Music, Inc. v. CBS, 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979). Alexandria criticizes the Commission’s failure to discuss possible anticompetitive consequences of provisions for “allocation of sales and for boycott of outside systems until MAPP’s surpluses are exhausted.” Brief for Alexandria at 41. Apparently, Alexandria is referring to provisions of the Agreement that permit participants to purchase power from each other on a short-term basis to cover deficiencies in accredited generation capability. Accredited generation capability is essentially the amount of generation capacity a participant must maintain to satisfy its own system demand and meet its reserve obligation to the pool. Under the Agreement, deficiencies in accredited generation capability may be covered by installation of new generation facilities or by the purchase of power from other suppliers. Participants may purchase power from MAPP members as well .as from nonmembers. If a participant elects to purchase outside the pool, the Pool Administrative Committee must determine that the source of supply is reliable. Transactions between pool members are governed by the terms of the Agreement’s service schedules. See note 17 supra. If a participant fails to make voluntary arrangements for maintaining accredited generation capability, the Pool Administrative Committee will require the deficient member to purchase the necessary power within the pool. The Pool Administrative Committee selects the participant or participants who will supply that power. If surplus power is not available within the pool, the Committee may recommend purchase from nonparticipants. Central Iowa asserts that Alexandria’s claims of sales allocation and boycott are based on a “complete misunderstanding of the way the pool operates.” Brief for Central Iowa at 25. It argues that pool members are free under the Agreement to decide whether they will fulfill their accredited generation capability requirement by purchase within or without the pool. Id. at 25-26. The ALJ agreed, concluding that the Agreement does not restrict purchases or sales of bulk power. J.A. II at 372. We hold that the challenged provisions represent the essence of a voluntary agreement for the coordination of facilities to achieve increased reliability and economies in operation. See generally Federal Power Commission, The 1970 National Power Survey at 1-17-1 (1971). As we have explained, MAPP seeks to promote reliable operation of the interconnected regional network, primarily through reserve sharing to back up large generating units. To achieve this goal, MAPP members must be able to insure that each party maintains accredited generation capability that can be called upon for reserve energy. If a member decides to maintain accredited generation capability by purchasing outside the pool, MAPP members must be assured that the outside source is reliable. Otherwise, there is no guarantee that reserve energy will actually be available when needed. If a member fails to make voluntary arrangements to cover deficiencies in accredited generation capability, the pool, if it is to maintain overall reserve assurance, must be able to require the deficient member to purchase power. The pool, which lacks authority to compel sales from outside sources, must depend on members with surplus energy to sell power to deficient members. Selection of the selling member or members in accordance with the valid interests of the pool reasonably furthers the pool’s objectives. The challenged provisions of the Agreement clearly do not represent an illegal group boycott or sales allocation scheme, and the Commission did not err in failing to discuss them as such. Alexandria further contends that the Agreement effectively destroys potential competition from nongenerating distribution systems by denying them services essential to their entry into the generating business. According to Alexandria, newcomers may be unable to obtain financing or may be unwilling to make the necessary investment to enter the generation business without commitments for the back-up of any proposed generation unit. Alexandria concludes that the Agreement is unlawful because it limits reserve sharing to participants who own and use generation. Alexandria relies on Associated Press v. United States, 326 U.S. 1, 13-14, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945), to support its argument that the Agreement’s failure to include nongenerating distribution systems is anticompetitive. In that case, the bylaws of a cooperative association engaged in gathering and distributing news prohibited members from selling to nonmembers. The bylaws were designed to destroy competition and effectively did so. In those circumstances, the Supreme Court held that the bylaws violated the antitrust laws. Alexandria’s argument misconceives the thrust of the MAPP Agreement. First, the Agreement does not prohibit or restrict participants from entering into reserve arrangements with nonmember distribution companies. Indeed, the Agreement explicitly recognizes the possibility of such arrangements. Second, nongenerating distribution systems that desire to enter the generating business may submit construction plans to MAPP for consideration and may attend MAPP meetings at which long-range plans are discussed. Under the modified membership provisions, see text at 1170-1172 infra, any distribution company interconnected with a MAPP participant that wishes to construct generation facilities is assured of eligibility for pool membership, and the consequent benefits of reserve sharing, when the facilities are operational. The pooling arrangement before us is thus fundamentally different from that presented in Associated Press v. United States, 326 U.S. at 13-15, 65 S.Ct. 1416. Cf. City of Huntingburg v. FPC, 162 U.S.App.D.C. at 239 — 40, 498 F.2d at 781-82 (case remanded for consideration of anticompetitive effects of pool agreement limiting participant’s wholesale power sales to nonmembers). Moreover, the Commission has stated that it will monitor access to the planning functions of MAPP and, if necessary, institute improvements. We affirm the Commission’s decision that the failure to include nongenerating distribution systems in MAPP is not anticompetitive and does not render the Agreement inconsistent with the public interest. See Municipalities of Groton v. FERC, 190 U.S.App.D.C. 399, 401-403, 587 F.2d 1296, 1298-1300 (1978). See also Municipal Electric Association v. FPC, 134 U.S.App.D.C. 310, 313-14, 414 F.2d 1206, 1209-10 (1969). Alexandria also asserts that past conduct by MAPP participants demonstrates the anticompetitive ends of the Agreement. It argues that the Agreement is designed to formalize and perpetuate a set of anticompetitive practices developed by the participants over several years. The ALJ ruled, and the Commission agreed, that Alexandria failed to produce evidence to support its allegations. We have reviewed the record in this case and find that there is substantial evidence underlying the Commission’s decision. See Gainesville Utilities Department v. Florida Power Corp., 402 U.S. 515, 526-27, 91 S.Ct. 1592, 29 L.Ed.2d 74 (1971) (citing 16 U.S.C. § 8257 (b)). Alexandria finally interprets the Commission’s decision as holding that the Agreement is acceptable as long as it is not more anticompetitive than prior pooling agreements. This is an inaccurate reading of the Commission’s decision. In affirming the ALJ’s conclusion that MAPP would improve power pooling in the mid-continent area, the Commission stated: We do, however, wish to clarify one point. While the Administrative Law Judge is correct that the pooling agreement under consideration need not necessarily advance pooling beyond prior agreements it supersedes, in the event that the new pooling agreement under review reduces competition in contrast to the prior agreements the Commission would have to find in the new pool public interest advancements outweighing the reduction in competition. Since, we find infra, no reduction in competition resulting from MAPP when properly modified, such a balance is not required. J.A. II at 406 (footnote omitted). The Commission then agreed with the ALJ that Alexandria “[had] not shown that the MAPP Agreement, with the exception of its membership provisions ... is anti-competitive.” Id. at 408. In so ruling, the Commission correctly described the role of anticompetitive considerations: “[B]ecause competitive considerations are important elements of the public interest, we believe that in a case such as this the Commission was obliged to make findings related to the pertinent antitrust policies, draw conclusions from the findings, and weigh these conclusions along with other important public interest considerations.” Id. at 409 (footnote omitted) (quoting Northern Natural Gas v. FPC, 130 U.S.App. D.C. at 228, 399 F.2d at 961). The Commission’s analysis of Alexandria’s allegations was not based on a comparison of the possible anticompetitive effects of the Agreement with the effects of prior power pools. The Commission considered Alexandria's various antitrust contentions without regard to prior pooling arrangements and held that the Agreement was in the public interest. We are satisfied that the Commission engaged in the appropriate legal analysis. SCOPE OF MAPP SERVICES South Dakota argues that the scope of MAPP services is too limited and that the Commission failed fully to consider expanding MAPP services. Specifically, South Dakota asks this court to remand the case to the Commission with directions to consider whether MAPP participants should be required to construct larger generation units and engage in single system planning with central dispatch. South Dakota bases its arguments on several theories. Petitioner Alexandria makes substantially the same arguments in its brief. In responding to the argument that the scope of the MAPP Agreement was too limited, the Commission stated: We reject the position of [Alexandria] and South Dakota that MAPP must be transformed from its present limited scope to one offering all conceivable pooling services. While Section 202(a) of the Federal Power Act speaks in terms of “voluntary interconnection and coordination” and to “promote and encourage” the same, the pooling agreement is an FPC tariff which must pass muster under Sections 205 and 206 of the Federal Power Act. Forexample, we have already found the"membership provisions unacceptable. Nevertheless, the scope of a power pool is in the first instance a matter for the utilities involved. The mere fact that a particular pool does not offer the same range of services as another pool does not permit the Commission to direct expansion of the narrower pools’ scope. Unless the limited scope of the MAPP Agreement is for some other reason unjust, unreasonable or unduly discriminatory, we are not authorized under Part II of the Federal Power Act to direct the pool to offer more services. While we can and do “encourage and promote” greater use of pooling, the peculiarities of each region necessitate that the member utilities determine the services to be offered. One cannot automatically apply the broader scope of NE-POOL, based upon very different geography, industry history and make-up in New England, to the mid-continent region with its tremendous area, sparse load and different industry make-up. J.A. II at 420. We are satisfied that the Commission reached an informed and reasoned decision consistent with congressional purposes. See Municipalities of Groton v. FERC, 190 U.S. App.D.C. at 402, 587 F.2d at 1299. Congress has concluded that regional coordination of electric power systems by means of regional power pools is in the public interest. See text at 1162-1163 supra. Section 202(a) recognizes that power pooling can yield benefits of efficiency and economy. Notwithstanding the desirability of coordination of electric systems, however, Congress decided to make such coordination voluntary, with limited exceptions. See S.Rep.No.621, 74th Cong., 1st Sess. 19, 49 (1935); H.Rep.No.1318, 74th Cong., 1st Sess. 8, 27-28 (1935). Congress was convinced that “enlightened self-interest” would lead utilities to engage voluntarily in power planning arrangements, and it was not willing to mandate that they do so. S.Rep.No. 621, 74th Cong., 1st Sess. 49; see Otter Tail Power Co. v. United States, 410 U.S. 366, 374, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973). Given the expressly voluntary nature of coordination under section 202(a), the Commission could not have mandated adoption of the Agreement, and failure of the MAPP participants to establish a fully integrated electric system could not justify rejection of the Agreement filed. The Commission had authority, however, under section 206 of the Act, 16 U.S.C. § 824e (1976), to order changes in the limited scope of the Agreement, including the addition of pool services, if, in the absence of such modifications, the Agreement presented “any rule, regulation, practice or contract [that was] unjust, unreasonable, unduly discriminatory or preferential.” See Municipaiities of Groton v. FERC, 190 U.S. App.D.C. at 404-06, 587 F.2d at 1301-03. We agree with South Dakota that the Commission should consider the policies of the Federal Power Act in making a determination under this section. This does not mean, however, that a pooling plan is unlawful under section 206 merely because a more comprehensive arrangement might better achieve the purposes of section 202(a). To so conclude would undermine Congress’s determination that coordination under section 202(a) be voluntary. Moreover, we cannot agree with South Dakota that in approving the Agreement the Commission abdicated its duty under section 202(a) to promote and encourage regional interconnection and coordination of electric facilities. South Dakota also argues that the Commission “erred as a matter of law” in concluding that it could not direct the pool to offer more services even if the pool arrangement were unreasonable. We find the assertion spurious. The Commission ruled only that unless the MAPP Agreement was unjust, unreasonable or unduly discriminatory, it lacked statutory authority to compel additional services. Finally, South Dakota contends that the Commission should have considered ordering MAPP participants to wheel electric power to nongenerating electric systems. This court has previously rejected a similar argument. In Richmond Power & Light v. FERC, 187 U.S.App.D.C. 399, 574 F.2d 610, (1978), the court recounted the Supreme Court’s decision in Otter Tail Power Co. v. United States: “As originally conceived, Part II [of the Federal Power Act] would have included a ‘common carrier’ provision making it ‘the duty of every public utility to . . . transmit energy for any person upon reasonable request . . . .’ In addition, it would have empowered the Federal Power Commission to order wheeling if it found such action to be ‘necessary or desirable in the public interest.’ H.R.5423, 74th Cong., 1st Sess.; S.1725, 74th Cong., 1st Sess. These provisions were eliminated to preserve ‘the voluntary action of the utilities.’ S.Rep.No.621, 74th Cong., 1st Sess. 19. It is clear, then that Congress rejected a pervasive regulatory scheme for controlling the interstate distribution of power in favor of voluntary commercial relationships.” 187 U.S.App.D.C. at 408, 574 F.2d at 619 (quoting Otter Tail Power Co. v. United States, 410 U.S. at 374, 93 S.Ct. at 1028). This court concluded that arguments advocating mandatory wheeling in lieu of relying on voluntary wheeling should be addressed to Congress. Id. Although Congress has recently taken action permitting the Commission to order wheeling in certain circumstances, this legislation is inapplicable to the case before us. Given the voluntary nature of power pooling under section 202(a), and Congress’s particular determinations with respect to wheeling, we uphold the Commission. Alexandria argues that the Agreement should have been rejected because it did not offer services beyond those of pools which previously operated in the mid-continent area. The AU found, and the Commission agreed, that MAPP is an improvement over earlier pools. In addition, the ALJ and the Commission held that a pool agreement that supersedes a prior arrangement is not unlawful merely because it does not offer new services. We agree with the Commission on both counts. The most obvious improvement of the Agreement is enhanced reserve assurance. By combining the pool operations of the Bureau of Reclamation with the various other power pools existing in the mid-continent region, MAPP has increased the number of generating units committed to back up other units in the pool. See generally Gainesville Utilities Department v. Florida Power Corp., 402 U.S. at 518-20 & n. 3, 91 S.Ct. 1592. However, even if a newly filed pool agreement merely streamlined or updated prior agreements without initiating substantive changes in pool services, nothing in sections 202(a), 205, or 206 of the Act suggests that this alone would be sufficient to hold it unlawful. Such a conclusion would be inconsistent with Congress’s intent to promote planned coordination of electric systems. MEMBERSHIP PROVISIONS Article IV of the Agreement establishes pool membership requirements. Under the Agreement, any “entity engaged in the electric utility business which owns or leases, and controls the operation of, one or more generating units, and which entity is electrically interconnected with one or more Parties to this Agreement” may become a MAPP party. Parties are divided into two classes: participants, who are entitled to representation on all pool committees and participation in the full range of pool services; and associate participants, who are entitled to representation on certain pool committees and participation in pool planning functions. To become a participant, a party is required to meet certain requirements. It must be a party: a. Whose system is normally operated directly interconnected with two or more electric systems; and b. Which owns or controls transmission facilities operated at 115 kilovolts or higher forming an integral part of the regional transmission network; and c. Whose system contributes significantly as determined by the Management Committee to the reliability of the interconnected systems operation; and d. Which operates or participates in the operation of a 24-hour dispatch center with a terminal on the communication network connecting the Participants. J.A. II at 221-22. Parties not meeting these criteria are associate participants. The Commission staff contended before the ALJ that the Agreement created an unreasonable distinction between participants and associate participants. The ALJ nonetheless held the provisions were just, reasonable, and not unduly discriminatory or preferential. On review of the ALJ’s decision, the Commission agreed with the staff. It found the distinction between participants and associate participants discriminatory on its face under sections 205 and 206 of the Act. It reversed the ALJ’s decision with respect to membership criteria, and held that “as far as access to the operational functions of MAPP, Staff is correct that ownership and use of generation and at least one interconnection is the minimum criterion.” Id. at 417. Both Alexandria and Central Iowa attack the Commission’s decision. Alexandria argues that the Commission did not go far enough in ordering modification of the membership provisions and that it should have opened MAPP services to nongenerating distribution systems. Central Iowa argues that there was no evidence to support the Commission’s conclusion that the membership provisions were discriminatory and that the Commission unlawfully changed the purposes of the MAPP Agreement. We are satisfied that the Commission, in modifying the membership provisions, reached a reasoned decision based on substantial evidence. See 16 U.S.C. § 8251(b) (1976). See generally Gainesville Utilities Department v. Florida Power Corp., 402 U.S. at 527, 91 S.Ct. 1592; Municipalities of Groton v. FERC, 190 U.S.App.D.C. at 402, 406, 587 F.2d at 1299, 1303. Insofar as Alexandria attacks the revised membership provisions on specific antitrust grounds, we have previously discussed why that argument is without merit. See text at-, 606 F.2d 1165 supra. Nongenerating distribution systems are not excluded from participation in MAPP planning functions; nor are MAPP participants prohibited from making reserve generation commitments to distribution systems that desire to enter the generation business. Id. Alexandria implies in its brief that the Agreement will result in the denial of wholesale power to small nongenerating distribution systems. We have no reason to believe, on the record before us, that such conduct will occur. The MAPP Agreement does not apply to long-term wholesale power arrangements and specifically recognizes that participants may freely enter into outside contracts for the sale of electric power. Further, the current successor to the Bureau of Reclamation is statutorily required to prefer municipal systems and public cooperative corporations in the sale of electric power. The Commission has warned that if MAPP participants engage in anticompetitive conduct, the conduct will be subject to commission scrutiny. We also disagree with Central Iowa’s contention that the Commission’s finding that the membership provisions are unduly discriminatory is unsupported. The MAPP Agreement excludes generating electric systems with only one interconnection and with less than the specified level of transmission capability from participation in MAPP’s service schedules, including the reserve energy schedule. These systems could clearly benefit through use of MAPP’s services, particularly reserve sharing. See generally Gainesville Utilities Department v. Florida Power Corp., 402 U.S. at 518-20 & n.3, 91 S.Ct. 1592. The Commission held that exclusion of the smaller generating systems was not reasonably related to MAPP's objectives and that the pool would not be injured by inclusion of such systems as long as they provide compensation for the true value of transmission services, whether in kind or in money. The Commission directed the MAPP participants and the Commission staff to develop a formula for fair compensation to be paid by those participants unable to reciprocate for transmission in kind. This is a matter well within the Commission’s expertise, and we are convinced that its decision is reasonable and supported by substantial evidence. See Municipalities of Groton v. FERC, 190 U.S.App.D.C. at 406, 587 F.2d at 1303. CONCLUSION The petitioners in this case attack the Commission’s decision both for going too far in modifying the MAPP Agreement, and for not going far enough. We have considered all of the arguments raised, and we conclude that the Commission has struck a proper balance in accepting, with modified membership provisions, the Agreement. Therefore, the Commission’s decision is Affirmed. . The Commission functions involved in this case were transferred to the Federal Energy Regulatory Commission (FERC) on October 1, 1977, pursuant to section 402 of the Department of Energy Organization Act, 42 U.S.C.A. § 7172(a) (1978). See Exec. Order No. 12,009, 42 Fed.Reg. 46267 (1977). FERC was substituted as respondent in this case in accordance with 42 U.S.C.A. § 7295(e) (1978). . Joint Appendix (J.A.) II at 345 (Initial Decision on a Power Pool Agreement). The Commission adopted the findings of the administrative law judge (ALJ) with respect to the procedural background of the case, the nature of the electric utility industry in the mid-continent area, the history of coordination leading to the Agreement, and the Agreement itself. Id. at 403. . The investor-owned utilities are “public utilities" within the meaning of section 201 of the Act, 16 U.S.C.A. § 824 (Supp.1979). Neither the Department of Energy Organization Act, Pub. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_casetyp1_7-3-3	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 - commercial disputes". WESTERN CASUALTY AND SURETY COMPANY, a corporation, Appellant, v. Walter S. BROOKS, Trustee, Appellee. In the Matter of BRUNS COAL COMPANY, Inc. a corporation, d/b/a Bolt Mining Company, Bankrupt. No. 10236. United States Court of Appeals Fourth Circuit. Argued March 10, 1966. Decided June 1, 1966. Charles W. Yeager, Charleston, W. Va., and Joseph F. Hogan, Columbus, Ohio, for appellant. Robert J. Ashworth, Beckley, W. Va., for appellee. Before SOBELOFF, Circuit Judge, MARVIN JONES, Senior Judge, United States Court of Claims, and J. SPENCER BELL, Circuit Judge. Sitting by designation of the Chief Justice. MARVIN JONES, Senior Judge: The question presented on this appeal is the right of a surety on two public construction contracts, both performed by the same contractor, to setoff losses incurred on one bond with the excess realized on the other. In the bankruptcy proceedings against the contractor, the Referee held that the surety had no right of setoff, and therefore should surrender to the trustee the $23,882.26 excess realized on one contract. The District Court affirmed and this appeal followed. We affirm. The facts in this case, as stipulated by the parties, are briefly as follows: In 1958 the bankrupt, Bruns Coal Company, Inc., contracted with the State of Ohio to perform two separate road construction projects — Projects 24 and 37. Each contract was signed independently of the other and covered work in separate counties. As a prerequisite to entering into these two contracts, the contractor was required by State statute to execute a separate performance-payment bond for each contract. This was done, with the appellant becoming surety on both bonds. In the applications for these bonds, the contractor-principal assigned to the surety as collateral security all sums in the hands of the obligee-State and due to the contractor at the time of any breach, or which might become due thereafter. These agreements further provided that the assigned funds could be used by the surety to offset losses incurred on the individual bond or on any other bond between the two parties. The assignments were never recorded as required by State law. By the end of 1960 the contractor had completed all required construction work on the two projects. However, it had failed to pay certain subcontractors, laborers, and materialmen, who, in accordance with State law, filed mechanic’s liens with the State notifying it of the debts owed by the contractor. This statute further provided that the State, upon receipt of these lien notices, was to withhold all subsequent payments becoming due to the contractor until the laborers and materialmen had been paid. If payment did not follow, the State was to make payments directly to the laborers and materialmen out of the retained funds. If this latter course was not followed, the statute permits the unpaid parties to recover against the State up to, but not exceeding, the balance due to the contractor. Upon receipt of these various liens on the two projects, the State withheld all further payments to the contractor. The surety then proceeded to satisfy these various claims as it was obligated by the bond agreement and by State statute. By August 1962 all claims arising under both contracts had been paid by the surety. In December 1960 the contractor directed the State, by letter, to send all future payments falling due on each contract to the surety. This was done, and between December 8, 1961 and June 11, 1962 the surety received a total of $103,-414.87 from the State: $87,141.69 on Project 24 and $16,273.18 on Project 37. The payments the surety was required to make on Project 24 totaled $63,259.43, thereby leaving an excess on that bond of $23,882.26. However, the payments on Project 37 totaled $160,702.45, thereby causing a loss of $144,429.27. An involuntary petition in bankruptcy was filed against the contractor on March 15, 1962. This date was within 4 months of the receipt of the first payments by the surety from the retained funds in the hands of the State. The contractor was adjudged a bankrupt on April 9,1962 and the trustee in bankruptcy filed a petition for turnover of all the sums received by the surety from the State — $103,414.87, claiming these payments were voidable preferences under Section 60 of the Bankruptcy Act. It was decided by the Referee in Bankruptcy that the assignments made to the surety in the bond applications, not having been recorded in accordance with State law, were invalid as against the trustee in bankruptcy. Section 70c of the Bankruptcy Act. The Referee further held that the $103,414.87 in payments received by the surety within 4 months of the filing of the involuntary petition in bankruptcy were voidable preferences under Section 60 of the Bankruptcy Ait, unless the equitable doctrine of subrogation could be made applicable. On this latter point, both the Referee and the District Court agreed that- subrogation was applicable on each bond to the extent of the claims made by laborers and material-men on that particular bond. In other words, the surety was not permitted to apply the $23,882.26 in excess payments realized on Project 24 to offset either its legal or miscellaneous expenses on that project or its losses on Project 37. The surety has not appealed the decision holding the assignments invalid, or the determination that the payments were voidable preferences if subrogation is inapplicable to the $23,882.26. Likewise, the trustee in bankruptcy has not appealed the decision that the surety is legally entitled to $79,532.61 of the payments via subrogation. Therefore, the sole issue raised by this appeal is whether the appellant-surety is entitled to the $23,882.26 excess realized on the Project 24 bond, by way of subrogation. It is now settled law, since the decision in Pearlman v. Reliance Ins. Co., 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962), that when a surety meets its obligations on a contract bond by paying the claims of the laborers and materialman, it subrogates to whatever rights the owner (State), contractor, and laborers and materialmen had in the retained funds, “to the extent necessary to reimburse it.” And since this “equitable right” of the surety to the fund relates back to the date of the surety bond, it entitles the surety to priority in payment over all subsequent lienholders and general creditors. By the surety’s acquiring this equitable interest in the retained funds, “this property interest of the surety never became a part of the bankruptcy estate to be administered, liquidated, and distributed to general creditors of the bankrupt.” In the only pronouncement by the Supreme Court of Ohio related to this question, State ex rel. Southern Surety Co. v. Schlesinger, 114 Ohio St. 323, 151 N.E. 177, 45 A.L.R. 371 (1926), it was held that the surety on a performance bond, upon completing the performance of the contract (not the payment of claims by laborers and materialmen) was subrogated to the rights of the State in the retained funds. It may therefore be inferred that the Ohio Supreme Court would also apply the doctrine of subrogation where the surety acts on the payment bond to pay off the claims of laborers and materialmen. The right of subrogation is an equitable doctrine, designed to perform substantial justice. “[I] t goes no farther than the strict demands of equity and justice demand.” First Nat’l Bank of Seattle v. City Trust, Safe Deposit & Surety Co., 114 F. 529, 533 (9 Cir. 1902). The doctrine entails the right of “a surety who pays the debt of another * * * to [assert] all the rights of the person he paid to enforce his right to be reimbursed.” Pearlman v. Reliance Ins. Co., supra, at 137, 83 S.Ct. at 235. It is clear from the foregoing that the surety cannot, by way of subrogation, assert any greater rights than the creditor in whose shoes it is substituted. The surety has paid under legal obligation the debt of another (the contractor), and so is allowed to succeed to the rights of the creditor (laborers and material-men) in enforcing the collection of the debt so that the party primarily answerable on the debt, and who in equity and good conscience should pay the debt, will feel the ultimate expense. The appellant-surety cannot, therefore, by subrogation retain any of the funds on either project which are in excess of the claims of the laborers and materialmen on that individual project — claims paid by the surety under each separate bond. If the surety were allowed to offset either legal and miscellaneous expenses on the excesses received from Project 24, or the losses incurred on Project 37, the outcome would be contrary to the equal equities which other general creditors have in the property of the bankrupt. The mere fact that both these construction bonds had the same principal (contractor) and were executed by the same surety should not alter the result. Each contract and each bond was executed separately; each applied to a separate road construction job in a different county ; and the retained funds on each project were separate and distinct. The doctrine of subrogation arises out of the unpaid debts on each contract; relates back in time to the execution of that specific bond; and is limited in scope to the debts arising under one contract. The appellant-surety, however, has attempted to expand the scope of subrogation in this case through an application of its own interpretations of the Supreme Court decisions in United States v. Mun-sey Trust Co., 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947), and Pearlman v. Reliance Ins. Co., supra. In Mimsey it was held that the Government, as a debt- or of the contractor, “could offset against the contractor a claim bearing no relationship” to the fund being withheld. This offset of a portion of the retained fund took precedence over the right of the surety to the fund by way of subro-gation. In Pearlman the appellant relies on the language that the “Government had a right to use the retained fund to pay laborers and materialmen * * [371 U.S. at 141, 83 S.Ct. at 237.] And that the surety, upon payment of the claims, subrogates to this right of the Government. The appellant argues as follows: Since the Government has a right to pay off these debts of the bankrupt-contractor, and in so doing could offset its losses on one with the excesses on the other (a “claim” against the contractor as in Munsey), the surety by subrogating to the rights of the Government in the fund should be permitted the same right of offset. This is untenable. Neither the Federal Government under the Miller Act nor the State of Ohio under its laws has any obligation, legal or equitable, to insure that the laborers and materialmen are paid, when to do so would require payments in excess of the retained funds on each contract. The Ohio statute, note 5, supra, is explicit on this point and the Miller Act does not even allow a suit against the Government. Therefore, even if the State of Ohio did decide to pay the laborers and materialmen on the two contracts, these payments would only go to the extent of the retained funds on that particular contract. Any excesses would be turned over to the trustee in bankruptcy. There would, therefore, be no claim arising in the State against the contractor that could be offset against the excess funds from Project 24. In the instant case, as in Pearlman, the State is merely a “stakeholder.” It possesses no legal claim, as in Munsey, which could be set off against the retained funds. Someone other than the State is entitled to receive the funds on each project, and the sole interest of the State is to insure that the laborers and materialmen have been paid. If these claims have not been satisfied, the remaining funds on the contract under which their claims arose will be used to help satisfy the claims. If their claims have been met by either the contractor or the surety, then the funds will be given over to whichever of these two parties made the payments — to the extent of the retainages on each project for the claims made thereon. It should also be noted that in the Munsey case, upon which appellant places such heavy reliance, there also were several payment bonds covering various contracts between the United States and the same contractor. Each bond in that case was likewise with the same surety, as in our fact situation. The contractor in Munsey completed the performance on all six contracts but failed to pay the laborers and materialmen on five of the six projects. The reimbursement sought by the surety in the Court of Claims was for recovery on each of the five contracts under which a default in payment occurred, to the extent of the payments made on each particular contract. The excesses on each of the five funds were not claimed nor was a claim made on the fund remaining on the sixth contract — even though the surety’s over-all losses were greater than all the retained funds on all six contracts. Statements were made in both the opinion of the Court of Claims and in a footnote in the Supreme Court decision, that this formulation of the surety’s claim was correct. Setoff would not be an allowable remedy. For the above reasons we agree with the well-reasoned opinion of the Referee in Bankruptcy, as affirmed by the District Court, that the surety cannot by sub-rogation or assignment claim any rights in the $23,882.26 excess realized on Project 24. The decision of the lower court is affirmed. Affirmed. . Project 24 was signed on April 29, 1958 and covered road work in Lawrence County; whereas, Project 37 related to work in Ashtabula County and was dated May 27, 1958. . Ohio Revised Code, § 153.54, provides in part that a public contractor shall be required to execute: “ * * * the usual bond as provided for by law with good and sufficient sureties, with an additional obligation for the payment by the contractor * * * for all labor performed or materials and tools furnished * * This statutory requirement for performance-payment bonds is similar to requirements of the Miller Act on Federal building contracts, Sec. 1(a), 49 Stat. 793 (1935), 40 U.S.C. § 270a (1964). . The bond on Project 24 was executed on March 3, 1958 in the amount of $1,403,-600. The Project 37 bond was for $2,728,-450 and was signed on March 27, 1958. . Ohio Revised Code, §§ 1325.01-1325.04, requires notice to be filed with the county recorder of all assignments of an account receivable. If this recording is not done “prior to, or contemporaneously with, the assigning of the account receivable,” the assignee is not protected from the claim of any party other than the assignor. Bender v. Vaughan, 106 Ohio App. 136, 153 N.E.2d 778 (1958). . Ohio Revised Code, §§ 1311.26, 1311.28, 1311.32. By requiring the State to make direct payments to the unpaid laborers and ma-terialmen, upon refusal of the contractor to make payments, and permitting suit against the State to the extent of the unpaid funds in the hands of the State, the Ohio statute differs from the Federal Miller Act. Under the latter statute, the laborer’s or materialman’s sole means of recovery is against the surety in Federal District Court. 49 Stat. 794, 40 U.S.C. § 270b (1964). . Ohio Revised Code, § 153.56, permits the laborers and materialmen to bring suit against the surety on the payment bond if the surety fails to pay their claims once notified of the amounts owed. . 30 Stat. 562, as amended, 11 U.S.O. § 96 (1964), provides, in part, for the avoidance by the trustee in bankruptcy of any preference (a transfer of the debtor’s property to satisfy an antecedent debt within 4 months of the filing of the petition in bankruptcy and while the debtor was insolvent) if the creditor, at the time of transfer, had “reasonable cause to believe that the debtor is [was] insolvent.” . 30 Stat. 565, as amended, 11 U.S.O. § 110(c) (1964), provides in part: “The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.” See Lewis v. Manufacturers Nat’l Bank, 364 U.S. 603, 81 S.Ct. 347, 5 L.Ed.2d 323 (1961); In Re Collins & Kiser Constr. Co., 204 F.Supp. 42, 45 (S.D. Iowa 1962), aff’d, Employers Mut. Cas. Co. v. Hinshaw, 309 F.2d 806 (8 Cir. 1962). If the surety had recorded the assignment on the Project 24 bond, it is undisputed that appellant would then he legally entitled to the excess funds arising thereon. For a discussion by the Ohio Court of Appeals dealing with the State’s recording statute and its effect on assignments, see Bender v. Vaughan, 106 Ohio App. 136, 153 N.E.2d 778 (1958). . If the surety is not entitled to the $23,-882.26 by way of subrogation, it will be required to seek payment on its claim as a general creditor, sharing on an equality with them. Sec. 64, 30 Stat. 563, as amended, 11 U.S.O. § 104 (1964). . Prior to the decision in Pearlman v. Reliance Ins. Co., 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962), the Ninth and Tenth Circuits had construed the opinion in United States v. Munsey Trust Co., 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947), as denying the surety any equitable right of subrogation in the retained funds. American Sur. Co. of New York v. Hinds, 260 F.2d 366 (10 Cir. 1958) ; Phoenix Indem. Co. v. Earle, 218 F.2d 645 (9 Cir. 1955). See generally, Note, 71 Yale L.J. 1274 (1962). . This Supreme Court decision is case-noted in 61 Mich.L.Rev. 402 (1962). . “We therefore hold in accord with the established legal principles stated above that the Government had a right to use the retained fund to pay laborers and ma-terialmen : that the laborers and material-men had a right to be paid out of the fund; that the contractor, had he completed his job and paid his laborers and materialmen, would have become entitled to the fund; and that the surety, having paid the laborers and materialmen, is entitled to the benefit of all these rights to the extent necessary to reimburse it.” Pearlman v. Reliance Ins. Co., supra, n. 10, at 141, 83 S.Ct. at 237. There is some controversy in the cases and the published legal articles as to just what rights the surety subrogates to; those of the laborers and materialmen or those of the owner (State). See e. g., Pearlman v. Reliance Ins. Co., supra, at 142, 83 S.Ct. at 237 (concurring opinion) ; Continental Cas. Co. v. United States, 169 F.Supp. 945, 145 Ct.Cl. 99 (1959). See generally, Gleick, The Rights and Status of Sureties in Bankruptcy Cases of Contractors, 34 Fordham L.Rev. 451 (1966) ; Speidel, “Stakeholder” Payments Under Federal Construction Contracts : Payment Bond Surety vs. As-signee, 47 Va.L.Rev. 640 (1961). . Pearlman v. Reliance Ins. Co., supra, n. 10, at 138, 83 S.Ct. 232. . Gray v. Travelers Indem. Co., 280 F.2d 549, 552 (9 Cir. 1960). . See generally, Note 71 Yale L.J. 1274, 1288-89 (1962). . Pearlman v. Reliance Ins. Co., supra, n. 10, at 136, 83 S.Ct. at 234. . State law is controlling on this question of the property rights of the contractor at the time of bankruptcy (subrogation), as it also is on the question of the validity of an unrecorded assignment as to the trustee in bankruptcy. Cf. Corn Exchange Nat’l Bank & Trust Co., Philadelphia v. Klauder, 318 U.S. 434, 436-437, 63 S.Ct. 679, 87 L.Ed. 884 (1943). . “The right of subrogation is not founded on contract. It is a creature of equity; is enforced solely for the purpose of accomplishing the ends of substantial justice ; and is independent of any contractual relations between the parties.” Memphis & L. R. R. v. Dow, 120 U.S. 287, 301-302, 7 S.Ct. 482, 488, 30 L.Ed. 595 (1887). . Subrogation is “the substitution of another person in the place of the creditor, to whose rights he succeeds in relation to the debt.” 2 Bouv. Law Dict. (8th ed. Rawle’s 3d rev. 1914). . Black, Law. Dictionary 1595 (4th ed. 1951). . A similar result was reached in Lacy v. Maryland Casualty Co., 32 F.2d 48 (4 Cir. 1929), where the surety on two state road construction contracts was required to complete performance on both projects and attempted to setoff losses on one with the excess funds realized on the other. The Court denied the surety any right of offset via subrogation, but did allow it on the basis of a valid assignment — the latter not being present in the instant case. In First Nat. Bank of Seattle v. City Trust, Safe Deposit & Surety Co., 114 F. 529 (9 Cir. 1902), the Court denied the surety a profit on the bond and directed the excess funds to be paid to another creditor. See generally, Gleick, 34 Fordham L.Rev. 451, 462-63 (1966); 17 Am.Jur.2d Contractors’ Bonds § 112, n. 11 (1964) ; Annotation, 45 A.L.R. 383 (1926). . Pearlman v. Reliance Ins. Co., supra, n. 10, at 140, 83 S.Ct. at 237. . This equitable obligation of the Government to see that the laborers and ma-terialmen are paid, to the extent of retained funds, derives from the payment bond which is required by statute and which fixes for the contractor, as one of its obligations on the contract to the Government, the payment of all laborers and materialmen. Therefore, when the surety fulfills this obligation to the Government, it subrogates to the rights of the Government in the fund. Since the State of Ohio has a similar statutory requirement of a payment bond and, in addition, has a legal obligation to pay the laborers and materialmen out of the retainages if they are not otherwise paid, the surety in this case can be held to have subrogated to the rights of the State in the retained funds — as well as the rights of the laborers and materialmen in the fund. See generally Gleick, 34 Fordham L.Rev. 451 (1966) ; Note, 71 Yale L.J. 1274 (1962). . See nn. 5 and 23, supra. . The surety has a right to “make demand and to receive any balances due under the contracts, to the extent of such , balances or to the extent of the payments so made * * Munsey Trust Co. of Washington, D. C. v. United States, 67 F.Supp. 976, 982, 107 Ct.Cl. 131, 148 (1946), rev’d on other grounds, 332 U.S. 234, 67 S.Ct. 1599, 91 L.Ed. 2022 (1947). . United States v. Munsey Trust Co., supra, n. 10, at 238, n. 3, 67 S.Ct. at 1601. “The surety did not and could not claim the whole amount retained by the government. The payments for which it was liable and which it paid, on two of the contracts exceeded, and, on the other four, were less than, the amounts retained on each particular contract.” . See n. 21, supra. Cf., United Pacific Ins. Co. v. First Nat’l Bank, 222 F.Supp. 243, 250 (D.Or.1963) ; Continental Cas. Co. v. United States, 169 F.Supp. 945, 947, 145 Ct.Cl. 99, 103 (1959) ; Union Stone Co. v. Board of Chosen Freeholders, 71 N.J.Eq. 657, 65 A. 466, 471 (1906). Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"? A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below) B. disputes over government contracts C. insurance disputes D. debt collection, disputes over loans E. consumer disputes with retail business or providers of services F. breach of fiduciary duty; disputes over franchise agreements G. contract disputes - was there a contract, was it a valid contract ? H. commerce clause challenges to state or local government action I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims) J. private economic disputes (other than contract disputes) Answer:
songer_r_state	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 "state governments, their 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. UTAH POWER & LIGHT COMPANY, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Denver and Rio Grande Western Railroad Co., et al., Utah Division of Public Utilities, Intervenors. No. 83-1276. United States Court of Appeals, District of Columbia Circuit. June 14, 1985. Ginsburg, Circuit Judge, filed concurring opinion. Michael F. McBride and Mindy A. Burén, Washington, D.C., were on the Petition for Rehearing and Suggestion for Rehearing En Banc. Before GINSBURG, Circuit Judge, Mac-KINNON and WILKEY, Senior Circuit Judges. MacKINNON, Senior Circuit Judge: The central theme of Utah Power’s Petition for Rehearing is that the decision of the Interstate Commerce Commission (“ICC”), reversing the Utah Commission, violated the intent of Congress as expressed in the Staggers Act by denying the state regulatory agency a “meaningful role ... with respect to regulation of intrastate rail rates.” However, the petitioner here refuses to recognize the clear requirements that the Staggers Act imposes upon state commissions to follow federal standards. Petitioner misreads and mischaracterizes the ICC decision and the decision of this and other courts, and utterly fails to recognize that as petitioner it bears the burden of proving that the “appropriate rate” determined by the ICC exceeds a reasonable maximum. Such conduct by a state commission does not comply with any acceptable, “meaningful role” envisioned by the Staggers Act. To overcome long standing and widespread favoritism for local shippers by state authorities, the Staggers Act in 1980 enacted revolutionary changes in the regulatory authority of state agencies over intrastate rail rates. First, it provided that “a State authority may only exercise jurisdiction over intrastate transportation provided by a rail carrier ... subject to [ICC] ... jurisdiction ... if such State authority exercises such jurisdiction exclusively in accordance with the [Staggers Act].” 49 U.S.C. § 11501(b)(1) (emphasis added). This requires state agencies to comply with federal standards. Second, the Staggers Act substantially reduced the prior authority of state agencies by specifically denying them “any jurisdiction” over “general rate increases ... inflation-based rate increases ... or fuel adjustment surcharges approved by the [ICC].” 49 U.S.C. § 11501(b)(6). Third, the Act expressly provided for the supremacy of certain federal action: Action of the [Interstate Commerce] Commission under this section [11501] supersedes State law or action taken under State law in conflict with the action of the [ICC], 49 U.S.C. § 11501(f) (emphasis added). Section 11501 provides a clear declaration of federal supremacy over intrastate transportation in major areas of regulation that previously recognized as being within the jurisdiction of the state commissions. In setting the intrastate rate in this proceeding, the Utah Commission refused to comply with applicable federal standards as set by the ICC. It is this disdain of the Utah Commission and Utah Power for compliance with mandatory federal standards that is fatal to their claims for the validity of the intrastate rate set by the Utah Commission. We accordingly affirmed the decision of the ICC, subject to several stated limitations, and remanded the case for further limited review of the evidentiary support on several points that do not appear to materially affect the reasonableness of the rate. 747 F.2d 721. (1) The Role of the State Commissions in Setting Intrastate Rates. Petitioner questions the role under the Staggers Act that the ICC assigns to state regulatory agencies in regulating intrastate rail rates where the state authority and its procedures have been certified [provisionally] by the ICC under section 214 of the Act. 94 Stat. 1913. Utah Power asserts that the decisions of the ICC, and of this court in this case, are contrary to congressional intent and relegate state agencies to a “virtually meaningless” role in regulating intrastate rail rates. Petitioner claims two decisions in the Sixth and Seventh Circuits support its contention. First, petitioner cites Kentucky Utilities Co. v. ICC, 721 F.2d 537 (6th Cir.1983). In this case the Kentucky Railroad Commission set intrastate rates in accordance with a “ton/ton mile formulation.” Since the Kentucky Commission adhered to the federal standards and set a rate “not shown to be inconsistent with the Staggers Act,” the court upheld the action of the state agency and ordered the rate “reinstated after the ICC had set it aside.” The court held that the rates were valid because they “unequivocally adhered” to the existing federal standards promulgated by the ICC in “ ‘Coal Rate Guideline,’ Ex Parte No. 347.” 721 F.2d at 541. This Sixth Circuit decision does not support the action of the Utah Commission here. The Utah Commission refused to recognize that by federal standards the Rio Grande was “revenue inadequate,” held that the federal standard was illegal, and employed a disparate standard based on an accounting method entirely different from the federal standard applied nationwide by the ICC. Utah Power maintains that Illinois Central Gulf Railroad Co. v. ICC, 702 F.2d 111 (7th Cir.1983), also supports its present contention. In this case the Kentucky Railroad Commission required that the Illinois Central Gulf Railroad return to Union Carbide $158,690.80 in demurrage charges assessed for delay caused by bad weather. The ICC affirmed the Kentucky Commission, though the applicable federal railroad tariff called for the assessment of “average demurrage” under which the shipper had no right to receive “free time” for bad weather. Thus, both the state authority and the ICC refused to apply the restrictions which were specified in the “average demurrage” tariff. The Seventh Circuit vacated the decision of the ICC and remanded the case to set aside the decision of the Kentucky Commission, ruling that the policy of the ICC, which generally enforced average demurrage agreements, constituted a federal “rule” or “practice” under the Staggers Act. The court concluded that the ICC contravened Section 11501(b)(3)(A) of the Staggers Act in construing the state’s procedures and standards as permitting the Kentucky Commission to suspend the “average agreement” and thus allow Union Carbide to be reimbursed for demurrage due to bad weather. The result — the court completely reversed the State authority for failing to follow the federal rule. Thus, both cases recognize the supremacy of federal law and standards and compel state agencies to comply therewith — in the language of the Sixth Circuit, to “unequivocally adhere.” The Sixth Circuit upholds the state authority because it did adhere to federal standards and the Seventh Circuit reverses the ICC and the state authority because it did not adhere to federal standards. Neither decision supports petitioner’s position that the Utah Commission is free to ignore federal standards. Nor does Wheeling-Pittsburgh Steel Corp. v. ICC, 723 F.2d 346, 354 (3rd Cir.1983) (“[The ICC’s] standard for reviewing the standards it promulgates must be binding on the states; in no other fashion could the Commission ensure that state authorities act in conformity with federal rules.”). (2) Exhaustion of Administrative Remedies. Petitioner repeats its contention that the decision of the state authority is unreviewable, because the rail carrier failed to comply with an allegedly applicable state procedural rule (in this case, to file an application for rehearing of a decision by the state regulatory authority). The rule was part of the state standards and procedures which the ICC provisionally certified pursuant to 49 U.S.C. § 11501(b). Petitioner’s contention is fully answered by the panel’s opinions. 747 F.2d at 727 — 29; id. at 744-48 (concurring statement). Both opinions interpret the state rule as intended authority that exhaustion of state administrative remedies by the Utah Legislature apply as a precondition to appeals to the Utah Supreme Court, not to reviews by a federal administrative agency. There is also abundant authority that exhaustion of state administrative remedies may not be necessary where, as it appears here, further pursuit of such remedies would be an exercise in futility. Additionally, the Staggers Act provides strong support for immediate ICC jurisdiction: “[a]ny rail carrier ... may petition the [ICC] to review the decision of any State authority, in any administrative proceeding in which the lawfulness of an intrastate rate ... is determined ...” 49 U.S.C. § 11501(c) (emphasis added). Cf. State of Texas v. United States, 730 F.2d 409 (1984), withdrawn and substituted in part, 749 F.2d 1144 (5th Cir.1985). (3) Revenue Adequacy. Petitioner asserts that the ICC’s finding of “revenue inadequacy” for the Rio Grande cannot “serve as the sole basis” (emphasis added) for holding that the relevant rate is “reasonable.” This contention mischaracterizes the action and reasons of the ICC and this court. Our decision merely stated that it was error for the Utah Commission, that previously had agreed to follow federal standards in determining revenue adequacy, to refuse to follow them. 747 F.2d at 736-37. In so doing the Utah Commission attempted to justify its action on a “fundamentally incorrect basis.” Id. at 743. By using a system of “retirement-replacement-accounting,” in place of the federal standard of “retirement-replacement-betterment accounting,” the Utah Commission determined that the Rio Grande had a “return on equity ... [of] 15.45 percent.” Petitioner alleges this is a reasonable return because Utah Power’s “return on equity” for the same year (1980) was 12.31 percent. Brief of Petitioner at 10. However, to determine revenue adequacy the ICC requires computation and comparison of a railroad’s return on investment, not return on equity. Ex Parte No. 393, 364 I.C.C. at 820-21. Hence, the Utah Commission improperly determined the rate of return of the Rio Grande and that it was “revenue adequate.” It then used these improper conclusions as a base for justifying a 40 percent reduction in the existing tariff rate of $5.97 per ton. Consequently, the Utah Commission implicitly held that the reduced rate was reasonable and, in effect, the maximum reasonable rate. Utah Power also relies on the same fallacious reasoning and conclusions. Thus, only by concocting its own local standard was the Utah Commission able to declare that the railroad was “revenue adequate.” In addition to these errors, there is an inherent error in determining reasonableness by a standard that compares the rate of return on the equity of a competitive railroad with that of a utility that operates as a monopoly. Bessemer pointed to the same error. 691 F.2d at 1113-14. Even if the method employed had been proper, petitioner’s reasoning is otherwise fatally flawed. Petitioner incorrectly assumes that it satisfies its burden of proof if it comes up with any reasonable rate. As the contending party, however, it bears the burden of proving first that the existing rate is unreasonable, i.e., that it exceeds the maximum reasonable rate for the transportation. 49 U.S.C. § 10709(c). As the court’s opinion points out, there is a range within which rates may be found to be reasonable, and merely furnishing one rate that can be said to be reasonable does not exhaust the possibilities for a legal rate. It did not meet this burden, and this deficiency is sufficient to deny the pending Petition for Rehearing. There is no error in finding an intrastate rate unlawful where computed by a state commission in violation of applicable federal standards. (4) The Claim of “Revenue Inadequacy.” Utah Power contends it should be permitted in this proceeding to attack the ICC finding that the Rio Grande was “revenue inadequate.” This claim is directed against the federal standards prescribed by the ICC for determining revenue adequacy of all railroads and is not based on contentions peculiar to the Rio Grande. The applicable federal standards were promulgated by the ICC in Ex Parte No. 393, Standards for Railroad Revenue Adequacy, (“Ex Parte No. 393”) 364 I.C.C. 803 (Mar. 26, 1981). The rules resulted from notice and comment proceedings, 45 Fed. Reg. 80150 (1980), in which the ICC proposed standards to comply with 49 U.S.C. § 10704(a)(2): (2) The Commission shall maintain and revise as necessary standards and procedures for establishing revenue levels for rail carriers providing transportation subject to its jurisdiction under that sub-chapter that are adequate, under honest, economical, and efficient management, 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. The Commission shall make an adequate and continuing effort to assist those carriers in attaining revenue levels prescribed under this paragraph. (Emphasis added.) Applying that statutory standard the ICC found: 2. The standard for revenue adequacy shall be rate of return equal to the current cost of capital. 3. To assess the value of a railroad’s rate base for the initial determination of revenue adequacy, we shall use the sum of the original cost of track assets, plus betterments to track, and the depreciated book value of all other assets. The investment base shall not be adjusted to reflect special tax provisions such as accelerated depreciation and investment tax credits. The cost of capital will be calculated using the current cost of debt and equity, and a debt-equity ratio of 40:60. Using the cost-of-capital standard for revenue adequacy [the ICC determined that] a railroad will be found adequate if it has a 1979 return on investment of 11.7 percent or higher. Railroads with lower returns will be considered revenue inadequate. After analyzing the data for the 35 class I railroads, we have found that only 3 earned adequate revenues in this most recent period. These railroads are the Bessemer & Lake Erie, Elgin, Joliet & Eastern, and Fort Worth & Denver. Their rates of return were 11.7, 13.2 and 22.8 percent respectively. Ex Parte No. 393, 364 I.C.C. 803, 821 (Mar. 26, 1981) (emphasis added). Applying these federal standards the ICC determined that the Rio Grande was “revenue inadequate” because it was earning a return on investment of only 8.6 percent. 364 I.C.C. at 826. Numerous interested parties participated in the Ex Parte No. 393 proceedings that resulted in the promulgation of the federal standards for railroad “revenue adequacy.” The ICC decision states that parties participated representing numerous “shippers,” “shipper organizations,” the U.S. Departments of Transportation and Energy, and other parties. 364 I.C.C. 803. Thereafter the validity of Ex Parte No. 393 was attacked in Bessemer and Lake Erie R. Co. v. ICC, 691 F.2d 1104 (3d Cir.1982), cert. denied, 462 U.S. 1110, 103 S.Ct. 2463, 77 L.Ed.2d 1340 (1983). The Edison Electric Institute was one of the petitioners in Bessemer on the claim that the “Standards of Revenue Adequacy” decreed by Ex Parte No. 393 did not comply with section 205, as amended by the Staggers Act. The Institute is a trade association with approximately 190 public utility members denominated as subsidiaries and affiliates. Utah Power and Light Company (Utah Power) is one of its members. Joint Brief of Petitioners at xi; Western Coal Traffic League v. ICC, 735 F.2d 1408 (D.C. Cir.1984). To the extent petitioner attempts to rehash the same issues raised in Bessemer such argument is precluded by collateral estoppel. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980); Montana v. United States, 440 U.S. 147, 153-55, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979); Western Coal Traffic League v. ICC, 735 F.2d at 1411; Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1233-36 (2d Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977). Issues that are not precluded we have addressed separately. Petitioner’s contention that revenue adequacy should be determined by return on equity instead of “return on capital” (J.A. 94, 103) is particularly without merit since the Staggers Act specifies that railroads shall be allowed “revenue levels ... adequate ... to cover ... [costs] plus a reasonable ... return ... on capital employed in the business.” 49 U.S.C. 10704(a)(2). And the federal standard promulgated by the ICC provides that “return on capital” shall be the norm. Ex Parte No. 393, 364 I.C.C. at 809. (5) Reserves for deferred taxes. Petitioner asserts also that “the ICC’s Revenue Adequacy Standards are Unlawful.” Brief of Petitioner at 9. Here petitioner’s challenge to the validity of Ex Parte No. 393 rests on two arguments. Petitioner contends first that the ICC “ignored [its] obli-gatpon] to remove deferred tax accounts from [the] railroadf's] rate,” as allegedly required by this court’s decisions in Western Coal Traffic League v. ICC, 735 F.2d 1408 (D.C.Cir.1984), Farmers Union Central Exchange v. FERC, 734 F.2d 1486 (D.C.Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 507, 83 L.Ed.2d 398 (1984), and San Antonio, Texas v. United States, 631 F.2d 831 (D.C.Cir.1980), clarified, 655 F.2d 1341 (D.C.Cir.1981), rev’d on other grounds sub nom. Burlington Northern, Inc. v. United States, 459 U.S. 131, 103 S.Ct. 514, 74 L.Ed.2d 311 (1982). Petitioner secondly argues that the pre-1981 revenue adequacy standards promulgated in Ex Parte No. 353, Adequacy of Railroad Revenue (1978 Determination), 362 I.C.C. 198, 294-341 (Dec. 6, 1979), reh’g denied, 362 I.C.C. 794 (May 30, 1980), were “realistic” and that those in Ex Parte No. 393 are unrealistic. The latter are allegedly “unique,” as though that makes them illegal. Petitioner thus principally attacks the inclusion of “reserves for deferred taxes” in a railroad’s rate base. Petitioner plainly infers that because the ICC did not “remove deferred tax accounts from [the] railroad rate base,” the ICC’s determination of the “appropriate rate” for the movement of coal by the Rio Grande’s unit train was contrary to prior decisions of this court and therefore invalid. However, the argument does not wash; it fails to come to grips with the underlying basis of the decisions of this court that it cites. In San Antonio, supra, this court correctly held on July 16, 1980 that “reserves for deferred tax accounts” should not be included in the railroad’s rate base because the federal standard applicable at that time provided for their exclusion. 631 F.2d at 847. See Ex Parte No. 338, Establishment of Adequate Railroad Revenue Levels, 359 I.C.C. 270 (1978). Eight months later on March 26, 1981, in Ex Parte No. 393, supra, the ICC reversed its position and promulgated a different standard which provided that reserves for deferred taxes should be included in the rate base. Thus, when the Utah Commission decided Utah Power on December 20, 1982, Ex Parte No. 393, supra, set forth the controlling federal standard. In Ex Parte No. 393 the ICC thoroughly considered the proper treatment of “reserves for deferred taxes” and set forth the following reasoned analysis as justification for their inclusion in the rate base: In valuing the asset base, we also must consider how to treat funds obtained through tax provisions such as accelerated depreciation and investment tax credits. In the past, we have deducted deferred taxes (which generally result from use of accelerated depreciation) from the net investment base. This policy was explained in Ex Parte No. 338, where we wrote: We are cognizant of the fact that this treatment confers a benefit on the carriers, in that they are receiving and retaining revenue which is not accounted as income. As indicated by some of the parties, the capital funds arising from deferred taxes have been contributed by the ratepayers rather than by investors in the company. Thus, it is appropriate to deduct the deferred tax account from the net investment rate base prior to any calculation of rate or return. This issue has come before us many time [sic] subsequently. For example, we considered it — and reached a different conclusion — in Ex Parte No. 347 (Sub. No. 1), Coal Rate Guidelines — Nationwide, 364 I.C.C. 360. We believe, after weighing all the concerns expressed by parties on both sides of this issue, that deferred taxes should not be removed from the net investment base for ratemaking purposes. In our notice of proposed guidelines in Ex Parte No. 347 (Sub-No. 1), we said: The deferred tax account can be considered a source of funds freed up for reinvestment. These funds constitute a substantial part — up to 20 percent in some cases — of the total capital available to individual railroads for this purpose. To the extent that the railroads are not allowed to earn a return on investments made with these funds, the incentive to undertake railroad investments with such funds is substantially reduced. Instead, an environment is created in which there is an incentive to take funds generated within the railroad industry and invest them elsewhere, where market-determined rates of return are available. We are concerned that this may thwart the intent of Congress in passing the Revenue Acts of 1954 and 1962, to provide business enterprise with tax benefits as a means of spurring capital spending. While we are not considering ratemak-ing per se here, the economic principle is the same. If we exclude internally generated funds, whether stemming from accelerated depreciation or any other railroad activity, from the investment base, the effect will be to establish a rate of return below the cost of capital. This, in turn, will result in incentives to railroads to invest these funds in nonrail operations. In short, we are concerned that exclusion of the deferred tax account from the investment base would conflict with our duty under section 10704(a)(2)(A) of the Interstate Commerce Act as amended by the Rail Act to set revenue adequacy figures at levels that would “provide a flow of net income plus depreciation adequate to support prudent capital outlays, assure the repayment of a reasonable level of debt, permit the raising of needed equity capital, and cover the effects of inflation.” We have carefully considered the argument presented in the verified statement of George H. Borts on behalf of the Western Coal Traffic League that special tax provisions should be excluded from the investment base since in a competitive industry competition will force the firm to pass the tax savings on to consumers in the form of lower prices. We reject this argument for two reasons. First, we again point out that we are not guaranteeing any railroad any rate of return. If competition generally has the effect postulated by Mr. Borts, then it will also have this effect on railroads. Second, we find the reasoning to be in error in two respects. The first is that tax (or other savings) will not be passed through to consumers if railroads are not covering economic costs, including the costs of capital. Railroads will either use these savings to help recover economic costs or will leave the market if they believe recovery is not likely. Our second concern with this reasoning is that while it is correct that if funds provided through tax benefits are restricted to use in a particular industry, then the additional investment may somewhat lower prices charged by that industry; however, as we explained above, the railroad industry must compete with all other industries for investment funds. The cost of capital reflects the minimum required rate of return expected by investors if they are to provide funds after all tax (and other) provisions are considered. That is, the cost of capital reflects the actual competitive return. We thus, reject this argument and conclude that the investment base should not be adjusted to reflect special tax provisions such as accelerated depreciation and investment tax credits. Ex Parte No. 393, 364 I.C.C. at 813-14 (emphasis added). After the promulgation of Ex Parte No. 393 on March 26, 1981 its validity was attacked in the Third Circuit in Bessemer and Lake Erie R. Co. v. ICC, 691 F.2d 1104 (3d Cir.1982). On October 19, 1982 the Bessemer court held that the ICC’s reasons for departure from its prior position were adequately explained and that the standard promulgated in Ex Parte No. 393 with respect to reserves for deferred taxes was valid and beyond the power of the courts to disturb. 691 F.2d at 1116. Petitioner’s present argument that this division erred in not following this court’s decision in San Antonio is thus without merit. Following San Antonio the Commission had legally promulgated a differ ent federal standard. It was this later standard embodied in Ex Parte No. 393, requiring the inclusion of reserves for deferred taxes in the rate base, that the Utah Commission was required to apply. Neither of the two other cases from this circuit cited by Utah Power compel a different result. Western Coal, supra, merely held that the petitioners there were collaterally estopped from attacking the ICC decision for the alleged infirmities previously decided contrary to the contentions advanced by their trade association against Ex Parte No. 393 in Bessemer. See part (4) supra. Here, that includes petitioner’s repetitious challenge regarding reserves for deferred taxes decided in Bessemer. 691 F.2d at 1115-16. Western Coal, moreover, cannot be construed as holding that “reserves for deferred taxes” must be included in any valid rate base. It merely refers to our decision in San Antonio, requiring such reserves to be included by the then existing federal standards, which have now been altered. [H] As for Farmers Union, supra, the record amply supports the conclusion that the ICC in promulgating the federal standards gave full consideration to responsible alternative rate-making methodologies and gave reasoned explanations in support of the rate-making methodology it promulgated. If petitioners are attempting to assert that Farmers Union required the ICC in the present case to go beyond applying the existing federal standards of Ex Parte No. 393 and to consider the revenue adequacy and rate-making scheme applied by the Utah Commission, the answer is given by Judge Ginsburg in Western Coal: Congress “did not command the ICC to behave like Penelope, unravelling each day’s work to start the web again the next day.” 735 F.2d at 1411. The Act provides that “[t]he Commission shall maintain and revise as necessary standards and procedures for establishing revenue levels for rail carriers.” 49 U.S.C. § 10704(a)(2). This neither suggests nor requires that duly promulgated federal standards be changed willy-nilly. (6) Cost Factors. Petitioners object to our refusal not to get further involved in some of the “cost” factors as set out in the ICC’s cost appendix. Our initial opinion commented and acted on some cost items and further discussion is not necessary because, since the Commission refused to follow federal standards, the reduced rate it ordered, as set forth above, must therefore be set aside on that ground. This leaves the existing rate as the “appropriate rate,” which the ICC is free to modify on remand if, within the area of the court’s limited remand, it finds any justifiable basis for doing so. (7) The Appropriate Rate Related to Variable Costs. Utah Power relies on the conclusion of the Utah Commission that the Rio Grande could not “charge higher rates for traffic than [the Utah Commission] ordered, [which permitted] 181.2% of variable costs” (J.A. 105-06). This contention is based on the erroneous assumption that if a rate is presented that can be said to be reasonable on any basis the ICC cannot approve any higher rate. This approach fails to recognize that Utah Power here bears the ultimate burden of proving that the existing $5.97 per ton rate, originally agreed to by Utah Power and ordered by the Utah Commission, which the ICC found was the “appropriate rate,” exceeds a reasonable maximum using federal standards. 49 U.S.C. § 10709(c). That a revenue/variable cost ratio exceeds that provided by § 10709(d)(2) creates no presumption that the rate exceeds a reasonable maximum. 49 U.S.C. § 10709(d)(4). A shipper’s burden is not satisfied by presenting another rate allegedly reasonable on some other theory. While Utah Power asserts the rate it proposes at 181.2% of variable costs is adequate, the ICC attacks this contention on the ground that such rate would not make an effective contribution toward revenue adequacy: [The rate prescribed] by the [Utah Commission is] only 11 percent above the current jurisdictional threshold, and we must reach the ... conclusion [that such rate does not make an effective contribution toward revenue adequacy.] The 181.2-percent rate ceiling relies upon cost calculations which are understated, as explained by our analysis in the appendix to this decision. It also involves an arbitrary doubling of the 1980 desired cost of capital figure of 19 percent, which is unsupported by valid economic principles. For the stated reasons, including our above discussion of the [Salt Lake, the Utah Commission’s] findings of revenue adequacy for the carriers transporting the considered coal movement are either not in accordance with Federal standards or not material in determining whether the assailed rate level exceeded a maximum reasonable basis. (J.A. 593). Applying proper federal standards and adjudicatory precedents the ICC found that the existing rate represented “208.7 percent of variable costs” (J.A. 593; 747 F.2d at 742). Prior ICC adjudications had determined that rates ranging from 209 to 255, and from 213.8 to 255.7 percent of variable costs were reasonable. Id. at 742 & n. 25. The ICC was justified in relying on its adjudicatory precedents in determining that the Rio Grande’s “existing rate” was “appropriate,” reasonable, and not in excess of a reasonable maximum. (8) The Savings Provisions of the Staggers Act. Petitioner next inquires whether the savings provisions (§ 229) of the Staggers Act has been rendered a nullity because Utah Power had previously “agreed to that rate” and “had, without objection, [shipped] under it for almost two years.” This savings clause permitted parties for a limited period of time to attack existing rates. 94 Stat. 1934. The answer to the inquiry is that it was not rendered a null Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:
songer_fedlaw	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. PAAC as a Commission and Individually et al. v. Frank L. RIZZO, Mayor of the City of Philadelphia and as an individual, et al. D. C. Civil No. 73-957) CITY OF PHILADELPHIA v. Melvin L. HARDY and Isaiah Crippins. (D. C. Civil No. 73-990) No. 73-1914. United States Court of Appeals, Third Circuit. Argued April 2, 1974. Decided June 14, 1974. Donald E. Matusow, S. Gerald Litvin, Philadelphia, Pa., for appellants PAAC and Melvin Hardy. John Mattioni, Deputy City Solicitor, Martin Weinberg, City Solicitor, Philadelphia, Pa., for appellees. Before VAN DUSEN, WEIS and GARTH, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge. We are called upon to resolve a conflict between the Mayor of Philadelphia, the Honorable Frank Rizzo, and the Philadelphia Anti-Poverty Action Commission (“PAAC”). For reasons other than those articulated by the district court, we conclude that it was proper for the court to refuse the relief sought against Mayor Rizzo. Melvin Hardy (a former Executive Director of PAAC), Isaiah Crippins (a former General Counsel of PAAC), and PAAC commenced this action in the District Court for the Eastern District of Pennsylvania on April 27, 1973. Their complaint includes a variety of claims concerning the alleged interference of Mayor Rizzo with the functioning of the anti-poverty agency. By far the most prominent of these claims is the charge that the Mayor violated federal law by removing Melvin Hardy as the Executive Director of PAAC and by refusing to renew Mr. Crippins’ contract as General Counsel. Less precise, but still present in the complaint, are charges that: (1) the Mayor illegally blocked appointments to PAAC made by its Executive Director; (2) the Mayor appointed persons to the PAAC Board illegally; (3) the Mayor convened PAAC meetings illegally; and (4) the Mayor defamed each of the plaintiffs. The complaint seeks declaratory and injunc-tive relief, as well as compensatory and punitive damages. Four days after the above action was commenced, the City of Philadelphia instituted an action in state court against Hardy and Crippins, seeking to restrain the defendants from exercising their duties as Executive Director and General Counsel of PAAC. On May 3, 1973, Melvin Hardy and Isaiah Crippins removed the City’s action to the District Court for the Eastern District of Pennsylvania, pursuant to 28 U.S.C. § 1441. Perceiving a close similarity between the two actions, the district court then consolidated the original action brought by PAAC, Hardy and Crippins (District Court No. 73-957) with the City’s removed action (District Court No. 73-990). On May 10, 1973, the court conducted a one day hearing on the merits of the consolidated case. After the hearing, the City moved for dismissal of No. 73-957 and for remand of No. 73-990 on the grounds of lack of subject matter jurisdiction. These motions were denied sub silentio by the district court. In a memorandum opinion, the district court found that: (1) subject matter jurisdiction exists (pursuant to 28 U.S.C. § 1831) for the district court to consider all matters raised in the consolidated actions; and (2) federal law permits the Mayor to remove PAAC’s Executive Director and to refuse to renew the contract of PAAC’s General Counsel. With regard to the peripheral matters raised in PAAC’s original complaint, the Court stated: We have not considered the myriad of other allegations and issues raised in the pleadings for the following reasons: (a) no evidence was presented at the hearing in connection therewith; (b) these matters were not briefed by the parties; and (e) in view of the issues decided herein, the other allegations and issues raised in the pleadings now appear moot. Judgment was thereupon entered in favor of the defendants in No. 73-957 and in favor of the plaintiff in No. 73-990. PAAC and Hardy appeal pursuant to 28 U.S.C. § 1291. I. Background To understand the district court’s primary conclusions, it is necessary to trace briefly the history of relevant anti-poverty legislation. As part of the Economic Opportunity Act of 1964, Congress established a Community Action Program. This Program encouraged the development of local agencies to provide multiple services to impoverished communities. Originally, the Program envisioned as a goal the “maximum feasible” participation of the poor in the development of Community Action Programs. By 1967, however, Congress recognized that the Community Action Program could not succeed without the support of locally elected officials. See 1967 U.S. Code, Congressional & Administrative News at 2448-49 (excerpted from House Report No. 866, 90th Cong., 1st Sess. 1967). On December 23, 1967, Congress enacted the Green Amendments to the Economic Opportunity Act of 1964. These Amendments gave flexibility to the Community Action Program, permitting localities a choice in the type of “community action agency” that would qualify for federal funding. Under the Green Amendments, the agency may either be a “State or political subdivision of a State (having elected or duly appointed governing officials), or a combination of such political subdivisions” or it may be a “public or private non-profit agency or organization which has been designated by a State or such a political subdivision or combination of such subdivisions.” 42 U.S.C. § 2790(a). The former administers its program through a community action board, while the latter administers its program through a governing board. 42 U.S.C. § 2791(a). The Economic Opportunity Act is somewhat imprecise with regard to the distinctions between the two types of boards. A governing board has the power to “appoint persons to senior staff positions, to determine major personnel, fiscal, and program policies, to approve overall program plans and priorities, and to assure compliance with conditions of and approve proposals for financial assistance under this subchapter.” 42 U.S.C. § 2791(e). The parallel powers of a community action board, on the other hand, are not made explicit by the statute. The Office of Economic Opportunity, however, has explained that in jurisdictions with community action boards, the “governing officials” will exercise the same powers that governing boards exercise, unless the officials delegate these powers to the community action boards. OEO Community Action Program Memorandum No. 81 at 5. In determining whether PAAC or Mayor Rizzo had the authority to remove Hardy, the district court focused upon the fact that the appointive powers of community action agencies differ, depending upon whether the agency is administered by a governing board (lodging the appointive powers in the board itself) or by a community action board (lodging the appointive powers in governing officials). The court thus posed as determinative the issue as to whether PAAC “is a political subdivision of the City of Philadelphia administered by a ‘community action board’ or whether it is a public or private non-private agency administered by a ‘governing board.’ ” To resolve this issue, the district court examined the history of the Philadelphia Anti-Poverty Action Commission. As the court found, PAAC was created on February 22, 1965 by the Executive Order of former Mayor James H. Tate. According to the uncontra-dicted testimony of appellant’s witnesses, PAAC was (from 1965 to 1967) the only community action institution in the country that existed solely by virtue of an Executive Order. To mollify demands from Washington, a blue ribbon panel was formed to develop permanent legislation. As a result of the panel’s efforts, the Philadelphia City Council adopted Bill No. 2846 on December 27, 1967. This Ordinance, appearing as Title 21-800 of the Philadelphia Code, provides, in pertinent part, that: (1) Creation of Commission. The Philadelphia Anti-Poverty Action Commission is hereby created. It shall be composed of an uneven number of members, not less than 31 nor more than 45 in number. All of the members of the Commission shall serve without compensation. The initial number of members of the Commission shall be 38 members and there shall be no change in the number of members of the Commission at any time unless two-thirds of the members appointed to the Board approve the change in membership. The members of the Commission shall select a chairman from among themselves. The term for which any member of the Commission shall serve shall be for a period of one year and until their successors are appointed, and qualify. (2) Appointment of Members. The Members of the Commission shall be appointed by the Mayor. [The ordinance then recommends that the May- or appoint specific officials as members.] * * * * * * (3) The Mayor shall select an Executive Director from among a panel of 3 persons whose names are submitted to the Mayor by the Commission. The Mayor shall be at liberty to request the Commission to present to the Mayor additional panels of 3 persons from which he may select an Executive Director. The request of the Mayor for additional panels shall not preclude him from selecting a name from among the prior panels. * * * * * * (5) Powers and Duties. The Commission shall have the following powers and duties: (a) To conduct, administer and coordinate Federal anti-poverty programs in Philadelphia; (b) To mobilize the resources of the City of Philadelphia and its residents to combat poverty through a community action program; (c) To mobilize and utilize resources, public and private, in an attack on poverty; (d) To provide services, assistance and other activities of sufficient scope and size to give promise of progress through elimination of poverty or a cause or causes of poverty through developing employment opportunities, improving human performance, motivation, productivity or bettering conditions under which people live, learn and work; (e) To carry out a community action program which is developed, conducted and administered with the maximum feasible participation of residents of the areas and members of the groups served; (f) To cooperate with federal, state and local governments and their agencies and representatives in every way possible in the conduct, administration and coordination of a community action program ; (g) To act as an agency of the City of Philadelphia for any and all of the purposes set forth herein; and (h) To receive, expend and account for funds, property and services supplied by federal, state or local governments, or by others, and in every way possible to further the purposes of the Commission. The district court concluded from the Executive Order and City Ordinance that “PAAC is an agency of the City, administered by a ‘community action board,’ rather than a non-profit organization administered by a ‘governing board.’ ” Having found that PAAC is an agency of the City, the court considered itself bound by federal law to hold that the appointive power lies with the governing official, Mayor Rizzo. Looking to state law, the court noted that the removal power tracks the appointive power. Accordingly, the court held that it was proper for the Mayor to remove Melvin Hardy from office. II. Jurisdiction Before evaluating the reasoning of the district court (as outlined above), we find it necessary to discuss, as a threshold issue, the subject matter jurisdiction of the district court. We shall analyze the court’s conclusion that jurisdiction vested (to consider all claims raised herein) by treating separately (1) the claim that Mayor Rizzo could not remove Hardy, (2) the peripheral claims raised by PAAC in 73-957, and (3) the removed claims. A. No. 73-957: The Primary Claim We agree with the district court that jurisdiction exists under 28 U.S.C. § 1331 to consider Hardy’s claim that he was illegally discharged. To confer original jurisdiction upon a district court pursuant to 28 U. S.C. § 1331, the complainant must assert a claim founded directly upon federal law. Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); Cabana Management, Inc. v. Hyatt Corp., 441 F.2d 862, 864 (5th Cir. 1971). The federal right asserted “must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another.” Gully v. First National Bank, supra, 299 U.S. at 112. Furthermore, the claim must be essential to plaintiff’s cause of action, Warrington Sewer Co. v. Tracy, 463 F.2d 771, 772 (3d Cir. 1972) (per curiam), and must raise a substantial federal question, Hagans v. Lavine, 415 U.S. 528, 534-542, 94 S.Ct. 1372, 39 L.Ed.2d 577, (1974). For the claim to be substantial, it need not be one that will ultimately succeed on the merits. See, e. g. Lewis v. American Federation of State, County, and Municipal Employees, AFL-CIO, 407 F.2d 1185, 1188, n.3 (3d Cir.), cert. denied, 396 U.S. 866, 90 S.Ct. 145, 24 L.Ed.2d 120 (1969). Provided that the federal claim is material (and not raised solely for the purposes of obtaining jurisdiction) and is not rendered frivolous by prior case law, a federal question will exist for purposes of 28 U. S.C. § 1331. See Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 90 L.Ed. 939 (1946). In the action filed as No. 73-957, PAAC and Hardy argue that the Economic Opportunity Act (42 U.S.C. § 2701 et seq.) and regulations promulgated in furtherance thereof preclude May- or Rizzo from removing PAAC’s Executive Director. Specifically, they contend: (1) that as a condition to recognition of PAAC as a grantee agency, the Office of Economic Opportunity (OEO) required that the removal power remain within PAAC, and (2) that local law cannot supersede terms imposed by the OEO pursuant to federal law. In essence, they claim that Mayor Rizzo’s removal of Hardy contravened the Supremacy Clause of the United States Constitution by subordinating a Congressional mandate to local law. We find that such a claim satisfies all the requisites of a substantial federal question. Essential to plaintiff-appellants’ ease is the claim that federal law (namely, the Economic Opportunity Act) precludes Mayor Rizzo from removing Hardy from office. If we read the Act as PAAC and Hardy would have us read it, we might well be compelled to conclude that the Mayor is without authority to remove Hardy; if, on the other hand, we interpret the Act as irrelevant to the issue of Hardy’s removal, we could reach the opposite result. We have been cited to no case law that renders the claim frivolous. Since there is no doubt but that the $10,000 amount in controversy requirement is satisfied, we conclude (as did the district court) that jurisdiction vests pursuant to 28 U.S.C. § 1331 to consider the legitimacy of Hardy’s discharge. B. No. 73-957: The Peripheral Claims As discussed above, the complaint in No. 73-957 charges that the Mayor: (1) illegally blocked appointments to PAAC, (2) illegally appointed persons to PAAC, (3) convened PAAC meetings, and (4) defamed the plaintiffs. With regard to the first three peripheral claims, the theory of illegality is based upon the argument that federal law (namely the Economic Opportunity Act and regulations promulgated in response thereto) prohibits the actions taken by the Mayor. For the reasons discussed above, we find that these claims too raise a substantial federal question. We cannot, however, find an independent jurisdictional basis for plaintiffs’ defamation claim. If the district court was correct in exercising jurisdiction of this claim, it could only be so as a result of the court’s power to exercise pendent jurisdiction over state claims related to legitimate federal claims. In United Mine Workers of America v. Gibbs, the Supreme Court analyzed this power as follows: Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority .,’ U.S.Const., Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co. v. Morrin, 289 U.S. 103 [, 53 S.Ct. 549, 77 L.Ed. 1062]. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole, (footnotes omitted). See also Deaktor v. Fox Grocery Co., 475 F.2d 1112, 1115-1116, n.2 (3d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 65, 38 L.Ed.2d 86 (1973). We find that the defamation claim is factually distinct from the claims involving Mayor Rizzo’s interference with the operation of PAAC. The defamation claim does not derive from a “nucleus of operative fact” common with the federal claims. Nor is the defamation claim one which we would “ordinarily expect” to be tried with the federal claims. Accordingly, we find that the doctrine of pendent jurisdiction is unavailable to justify the district court’s consideration of the defamation claim. We hold that the court erred in exercising jurisdiction over same. C. No. 73-990: The Claim Removed from State Court The removal statute, 28 U.S.C. § 1441, generally keys removal jurisdiction to original jurisdiction. A case which originally may be brought in federal district court is generally removable upon defendant’s petition. Where, as here, removal is predicated upon the assertion of a federal question, the principles discussed above with regard to § 1331 jurisdiction are applicable to removal from state courts. See Wright, Law of Federal Courts (2d ed. 1970) at 1304. Most importantly, the federal question must appear as an essential element of the plaintiff’s complaint in state court. If the federal question arises only as a defense, or in anticipation of a defense, removal jurisdiction will not exist. See, e. g., Tennessee v. Union and Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894); Crow v. Wyoming Timber Products Co., 424 F.2d 93, 95 (10th Cir. 1970); Romick v. Bekins Van & Storage Co., 197 F.2d 369, 370 (5th Cir. 1952); see also Wright, Law of Federal Courts (2d ed. 1970) at 131 (“Defendant can remove a case where the plaintiff relies on federal law for his claim, though the plaintiff is perfectly willing to entrust his federal claim to a state court, but neither party can take the case to federal court where defendant sets up federal law as a defense to a non-federal claim by plaintiff.”) In the action commenced by the City of Philadelphia to restrain Hardy and Crippins from serving as PAAC’s Executive Director and General Counsel, plaintiff’s complaint is based entirely on state law. According to the complaint, the Mayor’s authority to discharge the defendants is predicated solely upon the Philadelphia Home Rule Charter. The federal question in No. 73-990 thus arises only as a defense, Hardy and Crippens asserting that federal law supersedes the Charter and precludes their discharge. Since the federal question does not appear as part of the complaint well-pleaded, the state action is not properly removable, regardless of its similarity with No. 73-957. We find that the district court erred in denying the City’s motion to remand No. 73-990. Our analysis discloses that the district court was incorrect in concluding that subject matter jurisdiction exists to consider all claims raised in the consolidated actions. We need discuss the merits of only two sets of claims, the primary assertion that federal law precludes Hardy’s discharge and the three peripheral allegations raised in PAAC’s complaint (without the defamation claim). III. The Merits A. No. 73-957: The Primary Claim Appellants assert that it was improper for the district court to focus upon the issue of whether PAAC is administered as a “governing board” or a “community action board.” They maintain that the essential structure of PAAC was developed before the adoption of the Green Amendments and has not been altered since. It is appellants’ position that early negotiations between PAAC, OEO, and the City of Philadelphia led to the creation of an independent entity whose federally-imposed autonomy cannot be undermined by local law. They assert that: In view of the fact that the Green Amendments did not change the functioning of PAAC, resolution of such questions as who possesses the power to discharge the Executive Director of PAAC must depend on the nature of the arrangements, agreements and understandings reached through negotiations conducted by OEO, PAAC and the City of Philadelphia. A community action agency must be operated in accordance with the terms and conditions attached to the grant of federal funds. Appellants’ Brief at 14. Both the district court and the appellants construe the Federal Community Action Program as being mandatory in form. The court predicated its entire opinion upon the assumption that 42 U. S.C. § 2790 requires local governments to establish agencies which are administered either by governing boards or community action boards. Appellants, likewise, assume that it is mandatory that PAAC be operated “in accordance with the terms and conditions attached to the grant of federal funds.” Were we concerned herein with the eligibility of PAAC for federal funding, we, like the district court and appellants, would regard federal law as mandatory. The instant case, however, does not center around federal funding. Rather, we are concerned with identifying the basic structure of PAAC. While the Economic Opportunity Act may strongly influence the structure ultimately developed, it is a matter for local governments to decide whether they will create poverty agencies that satisfy federal guidelines. Contrary to the assumptions made by the district court and by the appellants, there is nothing in the Economic Opportunity Act (or in the regulations promulgated in furtherance thereof) which requires localities to establish community action agencies. An agency which fails to comport with the Act’s guidelines is neither illegal nor in contravention of the Supremacy Clause. Rather, it is merely an agency that may be forced to forego federal funding. In short, the Act does not establish powers in local agencies, but rather merely describes the .powers that are prerequisites to federal funding. To determine whether the Mayor or PAAC has the authority to remove Melvin Hardy, it is necessary to examine the documents which created PAAC rather than the federal guidelines which may or may not have been followed. Section 3 of the Ordinance creating PAAC gives the Mayor the power to appoint the Executive Director. Under Pennsylvania law, the power to remove an appointed officer is lodged in the same entity that has the power to appoint. We thus agree with the district court’s conclusion that Mayor Rizzo has the authority to remove Melvin Hardy from' office. B. No. 73-957: The Peripheral Claims (other than the defamation claim) We agree with the district court that plaintiffs failed to satisfy their burden of proving the Mayor’s alleged interferences with PAAC. On the basis of the record herein, regardless of the effect of federal law, plaintiff-appellants cannot succeed on their peripheral claims. The judgment entered in favor of the defendants in District Court No. 73-957 will be affirmed with respect to all claims but the defamation claim. The judgment entered in District Court No. 73-957 with respect to the defamation claim and the judgment entered in District Court No. 73-990 will be reversed for want of subject matter jurisdiction. To effect the above dispositions, the entire case will be remanded to the district court for entry of a judgment consistent with this opinion. . It is proper for an appellate court to affirm a correct decision of a lower court even when that decision is based on an inappropriate ground. See Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937). . The City commenced this second action in the Court of Common Pleas of Philadelphia County. . Although Isaiah Crippins joined PAAC and Hardy in the filing of a notice of appeal, Crippins has not submitted a brief to this Court. We limit our remarks in this opinion to the appellants before us, PAAC and Hardy. As to Crippins, we dismiss his appeal for failure to prosecute. See Fed.R. App.P. 3(a) ; 9 Moore’s Federal Practice IT 203.12. . To avoid confusion, “community action boards” are sometimes referred to as “administering boards” by the Office of Economic Opportunity. . 42 U.S.C. § 2791(a) provides: Each community action agency which is a State or a political subdivision of a State, or a combination of political subdivisions, shall administer its program through a community action board which shall meet the requirements of subsection (b) of this section. Each community action agency which is a public or private nonprofit agency or organization designated by a State or political subdivision of a State, or combination of political subdivisions, or is an agency designated by the Director under section 2790(d) of this title, shall have a governing board which shall meet the requirements of subsection (b) of this section. . Generally, the term “governing official” applies to: “. . . (a) the governor and legislature of any of the 50 States, the Commonwealth of Puerto Rico, or a self-governing territory, or (b) the top elected or duly appointed officials of a local political subdivision, District of Columbia, or a non-self-governing territory, who collectively possess the power to adopt and carry out local laws or ordinances.” OEO Community Action Program Memorandum No. 81, at 2. . The Order was authorized by Section 3-100(h) of the Philadelphia Home Rule Charter, which provides that the executive and administrative functions of the City shall be performed by “such additional advisory boards as the Mayor may appoint.” . See discussion infra. . See Appellant’s Brief at 17. . Cf. People Cab Co. v. Bloom, 472 F.2d 163 (3d Cir. 1972) (per curiam); Church v. Hamilton, 444 F.2d 105 (3d Cir. 1971) (per curiam). . 383 U.S. 715, 725, 30 S.Ct. 1130, 1138,16 L.Ed.2d 218 (1900). . Indeed, Congress has recognized that jurisdictions may be unwilling to establish agencies that conform with the federal guidelines. 42 U.S.C. § 2790(d) provides that: The Director may designate and provide financial assistance to a public or private nonprofit agency as a community action agency in lieu of a community action agency designated under subsection (2) of this section for activities of the kind described in this subchapter where he determines (1) that the community action agency serving the community has failed, after having a reasonable opportunity to do so, to submit a satisfactory plan for a community action program which meets the criteria for approval set forth in this sub-chapter, or to carry out such plan in a satisfactory manner, or (2) that neither the State nor any qualified political subdivision or combination of such subdivisions is willing to be designated as the community action agency for such community or to designate a public or private nonprofit agency or organization to be so designated by the Director. . We express no opinion as to whether or not PAAC has met the requisite federal guidelines. This issue is not before us. . The Ordinance supra at 7-9 does limit this appointment power somewhat, since the Mayor is free to choose only from a list of candidates selected by PAAC. However, the Mayor’s ability to reject -these candidates ad infinitum renders the limitation negligible. . Article 6, section 7 of the Pennsylvania Constitution provides: Appointed civil officers, other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed. The Philadelphia Home Rule Charter is entirely consistent with this constitutional directive, providing in § 9-200 that: “Any appointed officer may be removed at the pleasure of the appointing power.” 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_respond1_3_2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. BANGOR AND AROOSTOOK RAILROAD COMPANY, Petitioner, v. INTERSTATE COMMERCE COMMISSION, Respondent, Maine Central Railroad Company et al., Intervenors. MAINE CENTRAL RAILROAD COMPANY, Petitioner, v. UNITED STATES of America, and Interstate Commerce Commission, Respondents, Bangor and Aroostook Railroad Company, Intervenor. Robert W. MESERVE and Benjamin H. Lacy, Trustees of the Property of Boston and Maine Corporation, Debtor, Petitioners, v. UNITED STATES of America, and Interstate Commerce Commission, Respondents. Nos. 77-1082, 77-1105 and 77-1108. United States Court of Appeals, First Circuit. Argued Sept. 12, 1977. Decided March 30, 1978. Rehearing Denied No. 77-1082 May 12, 1978. See 578 F.2d 444. Laurence S. Fordham, Boston, Mass., with whom Verne W. Vance, Jr., Scott C. Moriearty, Boston, Mass., Todd D. Rakoff, Foley, Hoag & Eliot, Boston, Mass., William M. Houston, Edward T. Robinson, and Ga-ston, Snow & Ely Bartlett, Boston, Mass., were on briefs, for Bangor and Aroostook Railroad Co. Peter J. Nickles and Eugene D. Gulland, Washington, D. C., with whom Covington & Burling, Washington, D. C., and Scott W. Scully, Portland, Me., were on briefs, for Maine Central Railroad Co. Sidney Weinberg, Boston, Mass., for Robert W. Meserve and Benjamin H. Lacy, Trustees of the Property of Boston and Maine Corp., Debtor. Lee A. Monroe and Sidley & Austin, Washington, D. C., on brief for intervenor Canadian Pacific Limited. Charles H. White, Jr., Associate Gen. Counsel, Washington, D. C., with whom Mark L. Evans, Gen. Counsel, John H. Shenefield, Acting Asst. Atty. Gen., Carl D. Lawson, Daniel J. Conway, Attys., Dept, of Justice, and Raymond Michael Ripple, Atty., Washington, D. C., were on briefs, for I. C. C. and the United States. Before CAMPBELL, Circuit Judge, TUTTLE, Circuit Judge, and WOLLENBERG, District Judge. Of the Fifth Circuit, sitting by designation. Of the Northern District of California, sitting by designation. LEVIN H. CAMPBELL, Circuit Judge. These are consolidated petitions to review cease and desist orders and damage awards entered by the Interstate Commerce Commission in a report and order of February 4, 1977. 28 U.S.C. §§ 2321, 2342, 2344. The Commission’s actions followed administrative proceedings concerning the legality of interchange arrangements between the Bangor and Aroostook Railroad Co. (BAR) and Canadian Pacific Ltd. (CP). Initiated in 1973 by the Commission itself, the proceedings focused upon complaints which Maine Central Railroad (MEC) and the Boston and Maine Corporation (B&M) filed in 1974 seeking damages on account of BAR’s purportedly unlawful preference of CP. In agreement with an administrative law judge, the Commission concluded that BAR, “aided” by CP, had “unduly prejudiced Maine Central Railroad Co. and Boston and Maine Corporation ... in the distribution of traffic in violation of section 3(4) of the Interstate Commerce Act [the Act],” 49 U.S.C. § 3(4). Acting under authority of § 16(1) of the Act, 49 U.S.C. § 16(1), the Commission held BAR liable in damages to the two complaining carriers. But the Commission’s assessment of the amount of damages was considerably lower than the ALJ’s. It ordered BAR to pay damages of $176,323 to MEC and $86,917 to B&M, with 4% interest. BAR here challenges the Commission’s ruling that it was guilty of conduct viola-tive of § 3(4). It also challenges the Commission’s awarding damages to MEC and B&M and the amounts assessed. In separate petitions, MEC and B&M also contest the amount of damages, claiming that the ALJ’s higher assessments should have been adopted. We conclude that the Commission had ample basis to find that BAR violated § 3(4) and that its conduct damaged MEC and B&M. We also sustain the Commission’s determination of damages. However, since we find the cease and desist orders to be overly broad, we vacate those orders and remand that aspect of the case for clarification. I At the heart of BAR’s allegedly improper conduct is a formal agreement that BAR and CP concluded in July, 1970, initiating a shipper solicitation program in an attempt to divert “as much traffic as possible” from MEC and B&M onto BAR’s alternative connecting line, CP. The facts we state are drawn from the opinions of the ALJ and the Commission. Except as noted, they are substantially undisputed. BAR’s track network spans 541 miles in Maine. It connects with CP at Brownville Junction, located 45.3 miles north of Northern Maine Junction, where BAR interchanges with MEC. MEC connects further on with B&M. These four railroads skirt and cross the Canadian border in the northeastern reaches of Maine, offering alternative through routes for shippers with goods to be transported across the region. Paper, frozen vegetables, starch, clay, and wood-pulp, primarily, are shipped over these lines. Depending on a shipper’s origination and destination points, he may have the option of routing his traffic via BAR and CP, or via BAR with MEC and B&M. BAR is primarily an originating carrier, receiving goods directly from shippers rather than from other railroads, and shipping them out toward destinations not reached by its lines. In October of 1969, the Amoskeag Co., a company controlled by a “voluntary association” known as Dumaines, purchased 99 percent of BAR stock. Frederic C. Du-maine, who controls Dumaines, became a director and chief executive officer of BAR after the purchase. When this purchase was made, Amoskeag owned 26 percent of MEC stock as well; the Commission found that “word of an impending merger between MEC and BAR became widespread” after the acquisition. In early November, 1969, the president of BAR (who had stayed on at the request of Dumaine) asked that BAR’s general freight manager prepare a traffic study showing which of the cars presently traveling via Northern Maine Junction could instead be interchanged at Brownville Junction, without modifying their destinations. A series of memos on this subject followed; most were passed on to Dumaine by the president of BAR, in late November and early December of 1969. The memos detailed the commodities and numbers of carloads that were subject to such a diversion; one set forth the estimated loss, about $2.8 million per year, that was predicted to accrue to MEC and B&M should all 24,000 such carloads successfully be rerouted. Another memo, circulated in mid-December, compared transit times for goods traveling the alternative routes, and showed little over-all difference between the two routes. Negotiations between CP and BAR to arrange a cooperative effort in support of a freight diversion plan were initiated late in 1969, and continued through the first half of 1970. Salient features of the negotiations were BAR’s undertaking to furnish CP origin and destination statistics of all traffic subject to diversion, CP’s duty aggressively to solicit new traffic, and CP’s agreement to expand and improve its interchange facilities at Brownville Junction in order to handle the expected additional traffic. CP also indicated by letter its understanding that any agreement regarding concerted solicitation efforts that was ultimately concluded would be “long-term and not subject to any reversal of policy” by BAR. In mid-January, BAR investigated the potential financial impact on BAR of the proposed re-routing efforts: it compared the divisions that it would receive from additional traffic of different commodities when shipped over CP instead of over MEC. The investigation showed that diversion would decrease BAR’s revenues in some cases and induced CP to offer to pay BAR a “car allowance” for every additional car moving over its lines that would otherwise give BAR a diminished division. After further discussion and correspondence, the terms of an agreement were reached in early June of 1970, and activity pursuant to that agreement intensified. Under the heading “PRIVATE” a written confirmation of the agreement set forth inter alia that BAR had, “agree[d] to interline with CP Rail via Brownville Junction as many cars of paper products and potatoes as it is possible for it so to interline and anticipates that by reason of this agreement such interline traffic will be increased by approximately 24,000 cars annually as follows: “Forwarded to CP Rail Paper 11,000 Potatoes 4,500 Other 3,500 Sub-total 19,000 Received from CP Rail Misc. 5,000” The agreement described the allowances that CP agreed to pay BAR on additional carloads of potatoes and paper products that would be interlined at Brownville Junction; those payments were to be made “quarterly by check through the Claims Section of the Auditor of Freight Claims”. CP also formally undertook to improve its interchange facilities. Not specifically spelled out in the memorandum, but apparent from the correspondence and testimony regarding the negotiations of early 1970, was the commitment of both parties vigorously to solicit traffic on behalf of CP. The pact was to bind the parties over a fifteen year period; there was provision, however, for reopening and renegotiation every five years, on 180-day notice. The agreement was not formally executed until July 31, 1970, but it was by its terms to take effect retroactively, as of January 1, 1970. The Commission received evidence that pursuant to this agreement, both carriers approached shippers, urging them to route their traffic over CP instead of via MEC. Though service differences such as transit time, reliability, and car supply were sometimes cited to the shippers in support of the solicitations, those comparisons do not appear to have been grounded in either fact or prior study. BAR also “distributed suggested routes to the principal shippers on its lines. ... All suggested routes were via Brownville Junction.” CP and BAR personnel made some solicitation visits jointly, in search of more traffic for CP. The sales efforts of BAR and CP coincided, with a drop in traffic shipment over MEC that was marked enough to prompt MEC’s inquiry of shippers and carriers about the possible reasons behind the decrease. As MEC became generally aware of the intensified promotion campaign on CP’s behalf, MEC engaged in some counter-solicitation in an attempt to stem the tide, and evidently had some success. BAR’s and CP’s efforts continued in varying intensity over five years, until the agreement was terminated at CP’s request on February 18, 1975, retroactive to January 1, 1975. II Liability under § 3(4) Section 3(4) of the Act, entitled “Interchange of traffic”, provides, “All carriers subject to the provisions of this chapter shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term ‘connecting line’ means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.” [Emphasis supplied.] 49 U.S.C. § 3(4). In a rate discrimination case brought under the section, the Supreme Court has commented generally, “In the absence of any settled construction of § 3(4), ... its manifest purpose to deprive railroads of discretion to apportion economic advantage among competitors at a common interchange must be the basic guide to decision.” Western Pacific Ry. Co. v. United States, 382 U.S. 237, 244, 86 S.Ct. 338, 343, 15 L.Ed.2d 294 (1965). The Supreme Court has not had occasion expressly to construe the language in § 3(4) barring “undue prejudice” in the distribution of traffic. However, a three-judge court in Southern Pacific Ry. v. United States, 277 F.Supp. 671 (D.Neb.1967), aff’d mem., 390 U.S. 744, 88 S.Ct. 1442, 20 L.Ed.2d 275 (1968), has interpreted this part of § 3(4) to prohibit a carrier from soliciting traffic preferentially, in favor of one connecting line over another: “The prohibition of Section 3(4) is against discriminatory conduct of the carrier against connecting lines. The Act cannot be circumvented by wrongfully inducing the shipper to commit the discrimination in place of the carrier. In other words, the legislation is not to be so weakly construed that it permits the carrier to accomplish indirectly what he cannot do by direct preferential routing. In view of the clear policy expressed by the statute, we see no meaningful distinction between arbitrarily soliciting the unrouted freight at that time and arbitrarily routing it should the shipper leave it unrout-ed. . . . ‘[T]here is no basis for the contention that Congress intended to exempt any discriminatory action or practice of interstate carriers affecting interstate commerce which it had authority to reach.’ U “. . . [W]e feel that preferential solicitation when done on a ‘preconcerted’ and ‘systematic’ discriminatory basis, . falls within the statutory prohibition of Section 3(4) as well [as preferential routing]. The preferential solicitation dictated by the agreement is without concern for competitive benefits of similar lines and without relationship to the best possible service to the shipper. It is as much an apportionment of ‘economic advantage’ as direct routing itself.” 277 F.Supp. at 685, quoting Houston, East & West Texas R. Co. v. United States, 234 U.S. 342, 356, 34 S.Ct. 833, 58 L.Ed. 1341 (1914), and Western Pacific Ry., supra. It is to be noted that the judgment in Southern Pacific was summarily affirmed by the Supreme Court, although summary affirmance on statutory questions such as were there presented does not inevitably conclude future interpretations of § 3(4). Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam); Fusari v. Steinberg, 419 U.S. 379, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975) (Burger, C. J., concurring). We accept the district court’s interpretation in Southern Pacific, and the Commission’s similar construction in this case. Section 3(4) addresses the “interchange of traffic.” The proscribed act is “unduly prejudicpng] a connecting line in the distribution of traffic.” A defense is provided carriers who route traffic “specifically routed by the shipper,” New York v. United States, 568 F.2d 887, 894 n. 12 (2d Cir. 1977); this is consistent with other provisions of the Act that protect shippers’ freedom. The other subsections within § 3(4) all speak to a carrier’s obligation to afford even-handed treatment to its connecting lines, except room is allowed for different treatment when warranted by so-called “service considerations.” The provision seems obviously meant to avert the anti-competitive effects of a powerful or well-positioned carrier using its influence and position in favor of one connecting line over another, and thus skewing the market as that market is structured under the Act. Especially in light of Southern Pacific, we think the language of the statute put BAR fairly on notice that its conduct was prohibited. BAR, primarily an originating carrier, waged a broad-gauged and long-term solicitation campaign in support of only one of its connecting lines, CP. There is substantial evidence supporting the Commission’s finding that the sales effort was initiated, and continued, not on the basis of any markedly superior service (i. e. “service considerations”) that CP furnished its shippers, but rather for some other motive. The evidence indicated that in the study of comparative transit times undertaken prior to BAR’s broaching the possibility of joint solicitation with CP, no one carrier demonstrated a distinct advantage. Until after the negotiations had begun, BAR attempted no assessment of the reliability of alternative carriers, nor even of BAR’s own divisions in the rates of commodities shipped over the two available routes. An examination of the latter subsequently revealed that BAR itself would lose revenues on potatoes and paper products should those goods be interlined with CP rather than with MEC, causing CP to agree to pay BAR so-called “car allowances” for diverted traffic. The facilities of CP did not dictate that it would be in every shipper’s interest to ship via CP: CP had to expand and upgrade its interchange facilities with BAR as part of the agreement to solicit the divertible traffic. Further, BAR points in its brief to no specific instances where BAR’s recommendations to shippers were individually tailored according to service considerations. BAR’s solicitation efforts were uniformly on behalf of CP. Its undertaking was to solicit “all traffic possible” for CP, not just traffic that CP could, objectively, handle better than others. The agreement BAR entered into with CP committed it to seek traffic on behalf of CP over a fifteen-year period, without provision for release in less than five years. Should CP’s service have deteriorated, BAR remained obliged to solicit on its behalf. The agreement was a secret one; the “car allowances” CP was to pay BAR appear to have been concealed as freight claim payments. BAR favored CP by providing it with a detailed list of shippers and commodities originating on BAR lines; BAR distributed no such lists to other carriers as a matter of policy. This cannot conceivably constituted even-handed treatment in the distribution of traffic. Post hoc characterization of these activities as salutary promotion of competition through fair-minded recommendations to strong and sophisticated shippers is implausible. Though the Commission made no express finding that these solicitations were fraudulent or coercive, nor that competition, as distinct from competitors, was injured by the campaign, its findings did not reveal the impartial approach toward connecting lines in the distribution of traffic that is required of an originating carrier by § 3(4). We therefore have little hesitancy in upholding the Commission on the facts of this case. In so doing, we go no further than to support a ruling that active and deliberate solicitation by an originating carrier for one or more of its connecting lines, to the plain neglect and detriment of other connecting lines, violates § 3(4) of the Act, when such solicitation is not supported by a significant service differential between those carriers (or any other specific exception grounded in the Act) that objectively could justify a departure from impartial treatment. While this construction of § 3(4) seems clear enough, BAR disagrees, and has launched a multi-faceted attack on both the Commission’s interpretation and application of the section. First, with CP, it urges that the traffic that it solicited was “specifically routed by the shipper,” in that it arrived at BAR’s loading platforms, for example, with routing instructions signed by the shipper. BAR argues that it merely followed the shippers’ instructions when it routed the solicited traffic via CP. Moreover, BAR claims to have been prohibited by § 3(4) from rerouting that traffic in derogation of the shippers’ wishes. BAR relies correla-tively on sections 15(10), 15(11), and 15(12) of the Act, 49 U.S.C. §§ 15(10), 15(11), 15(12), as exemplifying Congress’ intention to protect “unfettered shipper choice,” and submits that to construe § 3(4) as prohibiting BAR from routing in accordance with shippers’ instructions would “make a mockery” of § 15(10), and conflict with the purposes of the Act. We find no merit in this argument. Section 3(4), while consistent with the subsections of § 15, does not blindly deify “shipper choice.” Its focus is inter-carrier relations. The shipper choice that BAR relies on in its defense was tainted by BAR and CP’s solicitation efforts, which were not founded upon the shippers’ service interests, and provides no satisfactory justification of the systematic favor BAR bestowed on CP. BAR objects that no inquiry was made into whether the prejudice suffered by MEC and B&M was “undue.” It contends that “undue” prejudice refers to injury incurred as a result of harm to competition, drawing an analogy to antitrust law. But while the Commission has characterized the statute as “pro-competitive”, that characterization does not thrust § 3(4)’s construction into the thick of antitrust doctrine. BAR’s analogy asks too much. Undue prejudice may refer to a disadvantage to a connecting line that is unwarranted by service considerations. Such harm to connecting lines as may result from a carrier’s breach of the strictures of § 3(4) are recoverable in damages under the terms of the Act without an independent assessment of the state of “competition” in the market, and the Commission is empowered to make such an award. 49 U.S.C. §§ 8, 13(1), 16(l). And as the Commission noted, it is “inapposite for BAR and CP to maintain that the BAR-CP agreement promoted competition when a normal competitive situation presupposes that each connecting line has equal advantage and opportunity to solicit shippers.” BAR further urges that its soliciting activities and agreement with CP were not shown to have “distributed traffic.” It says that it would be illogical to conclude that the ultimate routing instructions given by the shippers on each of the thousands of shipments reflected BAR’s choice rather than the shipper’s choice. But while it might be possible for a minor connecting carrier to maintain that its solicitations on behalf of another connecting line did not carry enough weight to amount to “distribution”, an originating carrier such as BAR, controlling many miles of track by which shippers gained railway access to various destination points, could reasonably be found to command a position from which it exerts substantial influence over shippers’ choice of routes, regardless of a shipper’s experience or sophistication. This is not to say that an originating carrier necessarily controls its shippers — it may depend on them collectively as much as they on the carrier — nor that a carrier could sanction noncooperative shippers by simply refusing them service — other sections of the Act limit a carrier’s power in dealing with shippers; but a shipper might well feel compelled to cooperate with an originating carrier rather than incur its disfavor. Further, BAR and CP instituted and carried out a systematic program of solicitation, pursuant to agreement, rather than sporadically asking for business in a few instances. We see no reason not to characterize this as an effort to “distribut[e] traffic” in contravention of § 3(4). Last, BAR asserts that the Commission’s reading of the statute conflicts with the first amendment of the United States Constitution. This contention was not raised before the agency, but even assuming it is now open we see no merit in it. Though first amendment protection has lately been afforded some types of commercial speech, see Bates v. State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (attorney advertising); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (residential “for sale” signs); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (advertising of drug prices), the first amendment has not yet been held to limit regulation in areas of extensive economic supervision, such as the securities, antitrust, and transportation fields, where the exchange of information can be a vital element in an illegal scheme. Shaping the regulation of “speech” in those areas is more a matter of policy development than one of constitutional right; it lies most appropriately with Congress and the regulatory agency. Even if some language in the above-cited cases may have seemed to herald a new era of first amendment law, see Virginia State Board of Pharmacy, supra, 425 U.S. at 762, 96 S.Ct. 1817, the revolution has yet to envelop the transportation field to the extent BAR asserts. Moreover, unlike the statutes questioned in the cases cited by BAR, the challenged construction of § 3(4) does not dictate silence on the part of carriers. It does not prevent an originating carrier from providing information of any and all sorts to shippers on an even-handed basis. It does require that an originating carrier make good faith efforts to ascertain the accuracy of purported “information,” and it limits the pressure that an originating carrier may put on a shipper. Without demonstrable superiority of a connecting line, an originating carrier, in its influential position, is precluded from sponsoring that line. Cf. Bates v. State Bar, supra, 433 U.S. at 4904, 97 S.Ct. 2691. It is hard to see how this standard does violence to first amendment values. In the present case, despite the absence of an express ruling that BAR’s solicitation included statements that were fraudulently or deceptively made, the Commission’s opinion leaves little doubt that BAR’s statements were at least misleading. That a few of the statements were discovered after the fact to have been inadvertently accurate offers no justification for BAR’s manifestly unequal treatment of CP and MEC, and does not rebut an overall judgment that the solicitations were recklessly made. Finally, we dismiss BAR’s argument that the Commission’s findings were not supported by substantial evidence on the record viewed as a whole. Though BAR can point to portions of the record that might have justified findings different from the Commission’s, the Commission could properly choose to rely on the evidence that it found most trustworthy and plausible. Consolo v. FMC, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). Its conclusions derive substantial support from the record: this is the test they must satisfy. Illinois Central RR. Co. v. Norfolk & Western Ry. Co., 385 U.S. 57, 66, 69, 87 S.Ct. 255, 17 L.Ed.2d 162 (1966); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); 5 U.S.C. § 706(2)(E). Ill Damages 1. The Commission’s method of calculation. To calculate the extent of the damage to MEC and B&M resulting from BAR and CP’s unlawful conduct, the Commission applied a “before and after” test. It projected the expected market shares of the two carriers in certain divertible commodity traffic on the basis of previolation market figures, and compared those shares with the actual market shares enjoyed by MEC and B&M over the period from 1970 through 1974, when the unlawful activity was in progress. The market share differential was then translated into terms of carloads lost by the carriers for each commodity. Each carload of a given commodity was assigned a figure representing the average gross revenue brought in by such carloads. To each carload was also attributed a portion of the carrier’s operating expenses, including certain overhead costs which were determined in accordance with guidelines developed in rate-making procedures before the Commission. These costs were integrated into the damage formula by application of certain “operating ratios” calculated in standard fashion by the Commission; those ratios reflect the proportion of expenses to revenues in traffic of a given commodity. The Commission totaled the estimated net revenues lost per carload in each type of traffic, combined with the number of carloads lost per commodity by virtue of BAR’s conduct, to give a monetary estimate of the injury suffered by MEC and B&M. The Commission attempted to exclude from its calculation, traffic that originated or terminated on MEC, B&M, or CP, since that traffic would not have been subject to diversion. B&M’s damages were assessed essentially as a proportion of MEC’s award. See infra. 2. Damages — The carriers’ primary objections All three carriers complain at length about the Commission’s computation of damages. BAR strenuously argues that no damages at all should be recovered by MEC and B&M. It says that the proofs relied on by the Commission and proposed by those carriers are “purely speculative” and fail to satisfy the standards of proximate cause required in a court of law. We find this contention without merit. A similar “before and after” comparison of market shares has been accepted in antitrust litigation when more precise measurements of the plaintiff’s damage would be too burdensome or are unobtainable for some other reason. See, e. g., Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931); Harverhill Gazette Co. v. Union Leader Corp., 333 F.2d 798, 804-07 (1st Cir.), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964). BAR contends that by examining interchange reports for Brownville and Northern Maine Junctions over 1970-74 and interviewing shippers, the injured carriers could and should have reconstructed unlawful solicitations and the shippers’ state of mind with regard to individual shipments in order to arrive at a precise count of shipments that were unlawfully diverted. But such an investigation would have required combing through the records of more than ten thousand shipments in each year of the five-year period. The difficulty of the task has been augmented by BAR’s destruction, since the violation, of interchange information concerning the destinations of the diverted freight, as well as of the computer printouts on shippers that BAR passed on to CP. The law does not demand that injured parties be so burdened. The wrongdoer could be required to bear the risk of uncertainty in the calculation of the number of carloads diverted by its actions, see Story Parchment, supra, 282 U.S. at 563-65, 51 S.Ct. 248. The Commission supportably found that MEC and B&M had met the burden of establishing “some resultant injury” from the § 3(4) violation. This was a rational inference, for, as the ALJ explained, “[tjhere are no facts of record which evidence service superiority in movements via Brownville Junction over Northern Maine Junction. In 1969 the transit times via the two interchange points were comparable. Routing changes resulting from carrier rate adjustments and concessions are short term and occur in both study and compared periods. There is no evidence of any abnormal market trend in the compared periods which affected originations and terminations on BAR. Nor is there any evidence of changes in supply sources and sales outlets that required elimination of MEC or MEC and B&M participation as intermediate carrier or carriers in the movements. What were present in the 1970-74 periods which were not present in 1969 were (1) the BAR-CP agreement and solicitation campaign and (2) the Great Northern-CP 100 car a month agreement.” Once the fact of injury was demonstrated, the Commission was authorized to determine if “any party . is entitled to an award of damages under the provisions of this chapter for a violation thereof.” 49 U.S.C. § 16(1). The method of assessing the damages to be charged to BAR became a matter for the Commission’s reasoned judgment, based on its expertise in the field. NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953); see Bagel Bakers Council v. NLRB, 555 F.2d 304, 305 (2d Cir. 1977). The Commission had merely to settle on a reasonable and rational method of computation, see Bagel Bakers Council, supra. We must defer its choice among rational methods. NLRB v. Seven-Up Bottling Co., supra. The Commission’s decision to award damages for this § 3(4) violation, with its reasoned conclusion as to their measurement, reflected a policy choice peculiarly within its realm. See 49 U.S.C. § 12; Consolo v. FMC, supra, 383 U.S. at 620-21, 86 S.Ct. 1018 (1966); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); United Van Lines, Inc. v. ICC, 545 F.2d 613 (8th Cir. 1976); cf. American Power and Light Co. v. SEC, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103 (1946); Maine Potato Growers v. Butz, 540 F.2d 518 (1st Cir. 1976). See generally 4 Davis, Administrative Law Treatise § 30.10 (1958). Applying these principles, we disagree with BAR that the Commission’s methodology was outside acceptable limits, as providing a reasonable yardstick for estimating the harm visited on MEC and B&M by BAR’s actions. While BAR seeks elimination or reduction of the award, the injured carriers seek reinstatement of the ALJ’s higher assessments. Thus they ask us to remand the case with instructions to reinstate the ALJ’s decision and award. However, it is not our province to choose between the awards of the ALJ and the Commission. Any review of the ALJ’s actions is only incidental to our review of the Commission’s decision. See 28 U.S. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_appbus	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 "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. ROGERS et ux. v. COMMISSIONER OF INTERNAL REVENUE. No. 8256. Circuit Court of Appeals, Sixth Circuit. May 8, 1940. Theodore B. Benson, of Washington, D. C. (Theodore B. Benson, of Washington, D. C., and H. H. Timmering, of Louisville, Ky., on the brief), for petitioners. Harry Marselli, of Washington, D. C. (James W. Morris, Sewall Key, and Helen R. Carloss, all of Washington, D. C., on the brief), for respondent. Before ALLEN, HAMILTON, and ARANT, Circuit Judges-. ALLEN, Circuit Judge. Petitioners appeal from a decision of the Board of Tax Appeals (38 B.T.A. 16), assessing deficiencies in income tax and penalties, as follows: Year Tax 25% Penalty 50% Penalty 1932 $1,004.93 $363.73 $ 545.68 1933 6,955.03 3,477.52 1934 663.41 298.91 The deficiency for 1934 and the 25% penalty assessed because the return for 1932 was delinquent are not contested. Petitioners, Charles A. Rogers and Louise Rogers, are husband and wife, residing at Owensboro, Kentucky. They own one-half of the outstanding stock of the M & R Canning Company. During the period in controversy Rogers was also engaged in farming, and was city clerk and tax collector of Owensboro. From time to time both petitioners received money or checks from the Canning Company, which was credited to them on the company books. The first question is whether the Commissioner erred in including in petitioners’ gross income for the years 1932 and 1933 certain credits to their accounts on the books of the company. The Commissioner gave credit to petitioners for all such charges on the company books which had been explained, but regarded as income to petitioners all credits less the explained charges, and refused to allow petitioners to deduct from income the unexplained charges. In its opinion, the Board said: “Petitioners concede that all amounts added to income by respondent, representing unexplained credits and bank deposits, constitute taxable income derived by them from legitimate sources, with the exception of three items * * *.” Two of the three items were decided by the Board in favor of petitioners, and that conclusion is not here attacked. The remaining item consists of the amount of $12,000 credited to Rogers’ account on the books of the Canning Company and added to income for 1933. The Canning Company borrowed $12,-000 from the Ontario Warehouse Company of Chicago, evidenced by check payable to the Canning Company dated November 29, 1933, which was endorsed by Rogers as president of the Canning Company, and further endorsed by him as tax collector and cashed by him through that office. Rogers received the $12,000 and testified that he used it to reimburse the tax collector’s office for funds taken from it by him to pay bills of the Canning Company and to take up his personal checks which he had substituted for the cash taken from the collector’s office. Petitioners assert that the $12,000 is part of a credit to Rogers on the books of the Canning Company of $17,-582.59, entered December 31, 1933, to offset - advances made to the company by Rogers to pay its bills and should not be included in petitioners’ income. The Commissioner urges that Rogers personally received the $12,000, and that the burden is on petitioners to prove that it was used to pay corporate expenses. We think the Board did not err as to this item. The finding of the Commissioner is prima facie correct, and petitioners have the burden of proving what part of the amount determined to be a deficiency is not due. Welch v. Helvering, 290 U.S. 111, 54 S.Ct. 8, 78 L.Ed. 212; United States v. Peabody Co., 6 Cir., 104 F.2d 267; Commissioner v. Volunteer State Life Ins. Co., 6 Cir., 110 F.2d 879, decided March 12, 1940. Petitioners have not sustained this burden. The records of the company were loosely kept, in that Rogers instructed the bookkeeper what entries to make. Petitioners kept no personal records. Evidence as to their income consists of sketchy memoranda, and information emanating from the uncertain memory of Charles A. Rogers. Rogers’ testimony on the point is confused and evasive. He made references to memoranda which were not produced, and stated that he did not know where they were. It was Rogers who directed that the journal entry of December 31, 1933, of $17,582.59, be made. Rogers at the time of the hearing was serving sentence for conviction of embezzlement of city funds. The Board found that there was nothing in the record to show that the check for $12,000 has any relation to the credit of $17,582.59 on the books of the Canning Company. The Board’s finding is a determination of a question of fact, and if supported by the record, should be affirmed unless clearly erroneous. Helvering v. National Grocery Co., 304 U.S. 282, 294, 58 S.Ct. 932, 82 L.Ed. 1346; Elmhurst Cemetery Co. of Joliet v. Commissioner, 300 U.S. 37, 40, 57 S.Ct. 324, 81 L.Ed. 491; Helvering v. Rankin, 295 U.S. 123, 131, 55 S.Ct. 732, 79 L.Ed. 1343; Commissioner v. Johnston, 6 Cir., 107 F.2d 883; Gamble v. Commissioner, 6 Cir., 101 F.2d 565. Petitioners also contend that the Board erred in holding that petitioners were subject to the 50% penalties for the years 1932, 1933, and 1934, under § 293(b) of the Revenue Acts of 1932 and 1934, 47 Stat. 169, and 48 Stat. 680, 26 U.S.C.A.Int.Rev. Code, § 293(b), which provides for a penalty of 50% of a deficiency to be assessed where any part of the deficiency is due to fraud with intent to evade the tax. The facts as found by the Board clearly show gross discrepancies for all the years in question, as follows: Year Returned Income Net Income 1932 $8,913.78 $18,748.58 1933 1,942.11 44,352.26 1934 6,205.98 12,978.98 Fraud cannot be lightly inferred, but must be established by clear and convincing proof. Duffin v. Lucas, 6 Cir., 55 F.2d 786. It is conceivable that taxpayers may make minor errors in their tax returns, or, owing to different or contradictory theories of tax computation, calculate returns which differ greatly in result from the Commissioner’s assessments. Here petitioners do not have that excuse. Discrepancies of 100% and more between the real net income and the reported income for three successive years strongly evidence an intent to defraud the Government. The Board did not err in deciding that 50% penalties should be assessed. The Board was entitled to consider as a part of the evidence Rogers’ conviction for embezzlement of city funds. Wood v. United States, 16 Pet. 342, 10 L.Ed. 987; Castle v. Bullard, 23 How. 172, 16 L.Ed. 424; Butler v. Watkins, 13 Wall. 456, 20 L.Ed. 629; Malone v. United States, 7 Cir., 94 F.2d 281. It is a fair inference that a man who will embezzle funds in his charge will not hesitate to understate his income with intent to defraud the Government. The fact that Rogers was a convicted embezzler had bearing as affecting his credibility. The Board’s finding is one of fact, and, if supported by clear and convincing evidence, should be affirmed. Such clear and convincing evidence existed here. Petitioners’ final contention is that they are not jointly and severally liable for the deficiencies and penalties for the years in question, but that each is liable for his or her own individual income tax, and that the assessments should have been allocated by the Commissioner. We think the Board was correct in holding that petitioners are jointly and severally liable. All the returns were joint returns. The return for 1932 was not voluntarily filed, but was prepared for petitioners in 1935 by a deputy collector and was signed by both petitioners. The return for 1934 was also signed by both. While the 1933 return was signed only by Rogers, it was stated to be a joint return for himself and wife. Cases relied upon by the petitioners are inapplicable for the reason that in them the source and amount of each spouse’s income was definite and certain and the tax was clearly allocable as to each. In the instant case, the credits to each petitioner appearing on the books of the Canning Company and regarded by the Commissioner as income have no relation to the amount of stock of the company owned by each spouse. Mrs. Rogers owned twice as much stock as her husband, but in 1932 the credits to her account were approximately the same in amount as those of her husband, and in 1933 Rogers was credited with an amount greatly in excess of that of his wife. A proper allocation of the tax is impossible from the information furnished to the Commissioner by petitioners. The decision is affirmed. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Thomas F. FRADY, Appellant, v. Patricia Roberts HARRIS, Secretary of Health and Human Services, Appellee. No. 80-1449. United States Court of Appeals, Fourth Circuit. Argued Jan. 9, 1981. Decided April 9, 1981. George H. Thomason, Spartanburg, S. C. (Thomason & French, Spartanburg, S. C., on brief), for appellant. Holly A. Grimes, Asst. Regional Atty., Dept, of Health and Human Services, Atlanta, Ga. (Thomas E. Lydon, Jr., U. S. Atty., Columbia, S. C., Carl H. Harper, Regional Atty., Dept, of Health and Human Services, Atlanta, Ga., on brief), for appellee. Before RUSSELL, HALL, and MURNA-GHAN, Circuit Judges. MURNAGHAN, Circuit Judge: Once again we confront the reality that the scope of our review of a decision of the Secretary of Health and Human Services holding an applicant for social security benefits not to have qualified is extremely limited. If there is substantial evidence to support the decision, it is our duty to affirm without regard to what result we would have preferred to reach ourselves, were we dealing with the issue afresh. 42 U.S.C. § 405(g). The medical evidence, while conflicting, supported the conclusion that the applicant Frady was possessed of capabilities sufficient to permit him to perform “sedentary work” as that term is defined in the Secretary’s regulations, 20 C.F.R. § 404.1510(b). The record also contains evidence permitting the Secretary’s finding that the applicant’s previous employment, especially as the owner of a tree service and right-of-way contractor, imparted skills that were transferable. See 20 C.F.R. § 404.1513, Rule 201.03, Table No. 1 of Appendix 2, Subpart P; 20 C.F.R. § 404.1511(e). That being so, and the existence in the economy of jobs which a person with such qualifications could fill being established by administrative notice, see 20 C.F.R. § 404.-1509, we are left with no alternative but to affirm the Secretary’s determination that the applicant was not disabled, for purposes of determining his eligibility for regular disability benefits. Stephens v. Harris, 628 F.2d 1353 (5th Cir. 1980) (unpublished opinion); Smith v. Harris, W.D.Tex. No. MO-80-CA-27 (Nov. 7, 1980); Lowery v. Secretary of Health, Education and Welfare, D.S. Car. No. 79-1715-8 (Oct. 24, 1980); Melvin v. Harris, M.D.Tenn. No. 79-3552 (July 15, 1980); Stallings v. Harris, 493 F.Supp. 956, 959 (W.D.Tenn.1980); cf. McLamore v. Weinberger, 538 F.2d 572 (4th Cir. 1976); but see Schmidt v. Harris, N.D.Iowa, No. C 79-2080 (June 19, 1980) (“The Secretary should not be permitted to, in effect, manufacture her own evidence.”); Williams v. Harris, W.D.N.Car., 500 F.Supp. 214 (1980); Santise v. Harris, D.N.J. No. 80-131, 501 F.Supp. 274 (1980); Ockunzzi v. Secretary of Health, Education and Welfare, M.D.Pa. No. 79-1292 (Nov. 18, 1980); Broz v. Harris, S.D.Ala. No. 80-0156-H (Dec. 1, 1980) (appeal pending); Holmes v. Harris, S.D.Ala. No. 79-0730-H (Dec. 11, 1980) (appeal pending). It is understandable that, in an individual case like that of Thomas Frady, the use of administrative tables (commonly called the “grid”), in lieu of live testimony from a vocational expert, may appear to the claimant a lessening of attention, a lowering of quality in the services performed by the agency, uniformly to the detriment of applicants. That overlooks, however, that measurement by the regulations may, in fact, in many cases enhance the likelihood of qualification by applicants for benefits. E. g. Hicks v. Califano, 600 F.2d 1048, 1050 (4th Cir. 1979); Vega v. Harris, 636 F.2d 900 (2d Cir. 1981) (“But the Secretary cannot have it both ways. She cannot escape what may be the conclusive effect of the rules in this case while depending on them to guide and control the discretion of the ALJs in other cases.”). It is important to realize that the decision of the Secretary proceeds from broadly based regulatory “medical vocational guidelines” dealing with what constitutes capacity to perform and with the availability of particular types of employment. A decision such as the present one is not, therefore, to be confused with one where the attempt to rely on administrative notice in lieu of expert testimony antedated adoption of the new regulatory guidelines, see Taylor v. Weinberger, 512 F.2d 664, 668 (4th Cir. 1975), contrast Terry v. Harris, S.D.Ohio No. C-2-80-145 (Dec. 15, 1980); Vincent v. Harris, W.D.Ky. No. 79-0050 — BG (Dec. 24, 1980). Nor is the present case one where the administrative notice was attempted, not on the basis of the broad regulations, but in reliance on some nonspecific knowledge of the ALJ, see Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). AFFIRMED. . Sedentary work. Sedentary work entails lifting 10 pounds maximum and occasionally lifting or carrying such articles as dockets (e. g., files), ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. . The previous employment involved supervising the work of numerous employees (in excess of 100). . We do not mean to suggest that in every case the Secretary can altogether dispense with vocational expert testimony to establish the existence of work in the national economy which an applicant was capable of performing. See Gillstrap v. Harris, N.D.Ga. No. C 79-1684A (Dec. 5, 1980); Moguez v. Harris, D.Colo. No. 80-A-170 (Oct. 20, 1980); Cannon v. Harris, M.D.N.Car. No. C-79-723S (Sept. 25, 1980); Phillips v. Harris, 488 F.Supp. 1161 (W.D.W. Va.1980) (holding the Secretary’s determination unsupported by substantial evidence, but specifying: “The opinion of the court should not be read to indicate that testimony of vocational experts is always necessary.... ”); Long v. Harris, W.D.Va. No. 79-0214R (Nov. 28, 1979). We decide only the case immediately before us. . The two Alabama district court cases, closely interrelated, rely, to a prominant degree, on a supposed failure of the Secretary’s regulations to comply with Administrative Procedure Act requirements. No such attack was mounted in the present case. Nor did Frady argue that notice by the ALJ of an intention to rely on administrative notice was insufficient. Cf. Fruge v. Harris, 631 F.2d 1244 (5th Cir. 1980); Mason v. Harris, N.D.Tex. No. 3-80-0873-H (Dec. 23, 1980). . Adopted February 26, 1979. 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_othappth	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? (e.g., the case became moot after the original trial)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". In re GRANADA APARTMENTS, Inc. CITY NAT. BANK & TRUST CO. OF CHICAGO v. GRANADA APARTMENTS HOTEL CORPORATION. No. 8761. Circuit Court of Appeals, Seventh Circuit. June 6, 1946. As Amended on Denial of Rehearing July 17, 1946. Vincent O’Brien and Defrees, Fiske, O’Brien & Thomson, all of Chicago, Ill. (John Merrill Baker, of Chicago, Ill., of counsel), for appellant. Henry L. Kohn, Edward P. Morse, and I. E. Ferguson, all of Chicago, Ill., for appellee. Before SPARKS, Circuit Judge, and LINDLEY, District Judge; SPARKS, Circuit Judge. This action, by City National Bank and Trust Company of Chicago, referred to hereafter as claimant, is based on a claim made by it as successor Trustee under a trust indenture from the debtor to Chicago Trust Company, as trustee, on September 1, 1928, and duly recorded on October 1, 1928, on behalf of such successor trustee, and of the holders of bonds and interest coupons appertaining thereto, issued and outstanding under the indenture. The Chicago Trust Company, the Central Republic Bank and Trust Company, and eventually the claimant, were successively trustees under this first mortgage trust deed, securing the first mortgage bond issue above referred to, on the Granada Hotel, which was the property of the debtor. Default in the payment of these bonds occurred prior to August 7, 1933, and on that date a foreclosure suit was begun in the Superior Court of Cook County, Illinois, by the Chicago Trust Company, the then trustee. The decree of sale by the Superior Court was entered December 18, 1936, finding there was due claimant certain prior lien items, consisting of its trustees’ and attorneys’ fees and certain costs, all incurred in connection with the foreclosure proceedings. During the pendency of the State court foreclosure proceeding, claimant was operating the property not as a receiver or Court officer, but as trustee in possession under the terms of its mortgage indenture. The petition under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, was filed April 23, 1937, and approved as properly filed on May 17, 1937, at which time claimant, as trustee in possession, by order of the Bankruptcy Court, turned over the property to the trastee in bankruptcy. During the foreclosure proceedings, a bondholders’ committee was organized, which consisted of certain officers of claimant. It tendered a plan of reorganization which was approved on July 15, 1937, and carried into effect. On June 23, 1937, claimant filed a proof of claim in the Referee’s office, and on September 14, 1937, it was filed in the clerk’s office of the Bankruptcy Court. It is referred to as Claim No. 9, paragraph 5 of .which relates to fees of claimant as trustee under the mortgage and the trustee’s attorney fees, and court reporter charges as fixed and allowed in the foreclosure decree. The various items of such alleged indebtedness, as set forth in paragraph 5 of the claim are: Fees for services as successor trustee .................... $ 2,560. Solicitor’s fees, less those not rendered at date of decree.... 8,250. Court reporter’s and stenographer’s fees................. 39.90 $10,849.90 On July 8, 1937, the trustee filed general objections to the claim on the ground that it was informal, lacked the original documents and was unfounded and lacking in merit. On August 30, 1937, claimant filed in the bankruptcy proceeding a report of its operation of the property, as trustee during its incumbency as such. It disclosed the balance on hand which it had theretofore been directed by the bankruptcy court to deliver to the bankruptcy trustee, and asked that court’s approval of the account. To this report and petition, Woods, the bankruptcy trustee, on September 9, 1937, filed what he terms an enlargement of his objections filed on July 8, 1937, together with a counterclaim under which he sought to surcharge and falsify certain items in claimant’s account as trustee in possession, and to recover moneys alleged to be due from it. The remainder of this pleading is divided into three separate headings: (1) “Facts to Sustain Denial of Claims Made Herein by City National, Its Committee and Its Counsel”; (2) “Additional Facts to Sustain Counterclaim by Debtor Estate” ; and (3) “Suggestions Against Account and Report by City National and Its Counsel Filed August 30, 1937 in This Court.” Under the first heading Woods alleged that the decree of the Superior Court of Cook County is void because claimant and its counsel have sought to serve conflicting interests, and that Granada Hotel Corporation was dissolved more than two years before the complaint to foreclose was filed. He further alleged that as claimant was in possession of the property as owner, it cannot charge for its services or those of its counsel. Under the second heading, Woods alleged that claimant’s management lacked reasonable skill and diligence; that the incinerator was not kept in repair; that the auxiliary pump of the refrigeration system was left out of repair and that such system was thereby damaged; that needed repairs were not made, nor were tenants sought for vacant lobby space, and that taxes should have been paid to prevent accruing penalties. Under the third heading objection was made to specific items charged as expense in claimant’s account as trustee in possession, such as payment of a receiver’s certificate, payment on a furniture contract, and the Master’s fee and expenses incurred in Harris v. Tuttle, a prior bankruptcy proceeding. By such surcharges and counterclaim, the trustee in bankruptcy sought judgment against claimant for $100,000 which he asked to have trebled under the statutes of Gloucester and Marlborough, which he alleged were a part of the common law of Illinois, and which provide that a trustee who commits waste in the administration of an estate is liable for thrice the resulting damage. On September 18, 1937, claimant answered the counterclaim, denying its guilt of the alleged acta of malfeasance and misfeasance. The sume firm of attorneys which now represent claimant also represented it at all times herein referred to, including the foreclosure of the mortgage in the State Court, and it also represented the bondholders’ committee. On account of the services rendered in connection with the plan of reorganization which was approved, two petitions for administrative allowances were filed in the bankruptcy court. The first was that of the bondholders’ committee. It asked only for reimbursement of its out-of-pocket expenses incurred by it for the use of the personnel and facilities of claimant. The second petition was by the attorneys for the bondholders’ committee for fees for representing the Committee in the 77B proceedings. Both claims were filed on September 14, 1937. Of the various issues thus raised, the district judge retained and heard evidence on the court trustee’s counterclaim and claimant’s answer thereto, and that relating to the surcharging and falsifying of claimant’s account as trustee in possession. The petitions of the bondholders’ committee and i¿s attorney for expenses and services in connection with the plan, and also the claim of City National and the objections of Woods, trustee, to paragraph 5 thereof, were referred to a special master to take and report the evidence without findings of fact or conclusions of law. The District Court, in its special findings of fact, expressly stated that its trial of the issues formed by the cross-complaint and claimant’s answer thereto constituted a plenary submission. It said: “City National Bondholders Committee and their counsel by pleadings filed, agreements made and evidence offered before the Judge in open court, have all consented to and conducted here a plenary litigation. They have asked the Court to decide a plenary accounting in equity. Upon this record * * * respondents * * * cannot be permitted to say that the proceedings were or are summary. These proceedings are plenary * * The District Court consolidated for hearing the evidence taken before the referee on the fee and expense petitions of the Committee and its counsel on claimant’s claim, with the evidence taken before the court on the court trustee’s objections to claimant’s account and report as trustee in possession and on the court trustee’s counterclaim and claimant’s answer thereto. On May 2, 1939, the District Court entered its findings of fact and conclusions of law thereon. Because of the inter-relation and conflicting interests of claimant, the bondholders’ committee, and the firm of attorneys acting for both, the court found that the fee petition of the Committee and the fee petition of the firm of attorneys for the Committee for administrative allowance, as well as paragraph 5 of claimant’s claim, based on the foreclosure decree, should be disallowed and dismissed for want of equity. It further found and concluded that the allegations of the court trustee’s answer and counterclaim were fully established by the evidence, and that the specific amounts named therein, with interest from the several respective dates therein were due to Debtor, from claimant, in an approximate total of $100,000. It further found that justice would best be served by merely setting off opposing claims and contentions and leaving the parties to the accounting where they were, with no cash recovery to be allowed the court trustee. On the same day, a decree was entered in accordance with the court’s findings and conclusions. On June 1, 1939, claimant, the Committee, and its attorneys filed a notice of appeal from those portions of the decree which disallowed paragraph 5 of claim 9, and which denied the petitions of the Committee and its attorneys for administrative allowances on account of the services performed and expenses incurred in the 77B proceeding, and which found that the Court Trustee had sustained his objections to claimant’s account and his counterclaim. That appeal was docketed here as 7060. In view of our decision in Cowan v. Dickinson Co., 7 Cir., 104 F.2d 771, the same parties filed in this court a petition for leave to appeal from part of the District Court’s decree disallowing paragraph 5 of claim 9, and disallowing the petitions of the Committee and its attorneys for administrative allowances. That appeal was docketed here as 6986. In it a short record was filed, and on appellant’s motion, this court consolidated the two appeals for argument and directed that the transcripts of record be consolidated and stand as a single transcript of record in both appeals. The parties were permitted to file a single brief with respect to both appeals. On June 10, 1939, the Court Trustee filed a notice of appeal from that part of the District Court’s decree which denied him a money judgment against claimant on the court’s finding that the trustee’s suggestion for surcharging and falsifying claimant’s account and the counterclaim were sustained by substantial evidence. That appeal was docketed here as 7061. In that case the trustee filed his praecipe for additional record in which he specified a few items not included in the record of 7060, but he did not include any of the evidence relating to his attempted surcharge of claimant’s account. This court on November 27, 1939, entered an order in 7061 directing that the transcript of evidence contained in the consolidated records in Causes Nos. 6986 and 7060 be incorporated in the record in the Court Trustee’s appeal, 7061, but that the transcript of evidence need not be printed but could be referred to by the parties. That order further directed that the appeals be heard on the same date. Upon hearing, this court held that the District Court’s finding that approximately $100,000 was due from claimant, was not supported by the evidence, and it affirmed that portion of the decree by which the lower court refused to enter a money judgment against it. This court further held that the evidence did not warrant the District Court’s finding that the inter-relation of claimant, as Trustee, and the Committee and the attorneys was entered into for the purpose or with the result of keeping the property in court for the benefit of the Indenture Trustee or the Committee, or for any other fraudulent purpose, and that paragraph 5 of claim 9 and the fee petitions should have been allowed. The Court Trustee applied for two writs of certiorari to the United States Supreme Court. In one he sought a reversal of the holding of this court that he was not entitled to an affirmative money judgment. This petition for certiorari was denied. Woods v. City National Bank & Trust Co., 311 U.S. 676, 61 S.Ct. 43, 85 L.Ed. 435. In the other petition for certiorari, the Court Trustee sought to reverse the holding of this court that paragraph 5 of claim 9 should be allowed and that the petitions for administrative allowances should also be allowed. This petition was granted. 311 U.S. 629, 61 S.Ct. 39, 85 L.Ed. 400. The basic question before the Supreme Court in that case concerned “the power of the District Court in proceedings under Ch. X of the Chandler Act * * * to disallow claims for compensation and reimbursement on the grounds that the claimants were serving dual or conflicting interests.” 312 U.S. 262, 61 S.Ct. 493, 494, 85 L.Ed. 820. The Supreme Court held that the findings of the District Court that the claimants represented conflicting interests were amply supported by the evidence and should be denied compensation, and it reversed this court on its rulings to the contrary. Those claims were for services alleged to have been rendered by claimants with respect to the preparation, the acceptance and the carrying out of the plan of reorganization, together with paragraph 5 of claim 9 which sets forth the claims allowed by the State Court in the foreclosure proceedings, hereinbefore mentioned. The Court further said that they agreed “that on this record recovery on the counterclaim would not be warranted,” and that, “The other points raised by petitioner are so plainly without merit that they do not warrant mention.” The Court further held that under the Act, such of the expenditures of the indenture trustee, the Committee and its counsel, as benefited the estate should be allowed by the District Court. In this respect the Court said: “Thus where taxes have been paid, needful repairs or additions to the property have been made, or the like, equity does not permit the estate to retain those benefits without paying for them. Such classification of expenses, at times difficult, rests in the sound discretion of the bankruptcy court. The District Court drew no such distinction but proceeded on the theory that reimbursement for all expenses must be denied. But it is not apparent that all of them fall within the prohibited category.” The cause was remanded to the District Court for further proceedings in conformity with the opinion. Subsequently, on May 12, 1941, claimant, as indenture trustee, filed its petition with the District Court to recover out of the trust estate, then under the jurisdiction of that court, all expenses and charges including those of its counsel, reasonably and necessarily incurred in the defense against the Court Trustee’s counterclaim, which were successfully defended on appeal in this court and the Supreme Court by claimant. The petition was addressed to the court as a court of equity, and was not drawn under any provisions of the bankruptcy law. We are first confronted with debtor’s contention that this appeal should be dismissed because not prosecuted by leave to appeal but only by notice of appeal. It relies upon 11 U.S.C.A. §§ 642, 650; Dickinson Industrial Site, Inc. v. Cowan, 309 U. S. 382, 60 S.Ct. 595, 84 L.Ed. 819; In re Country Club Building Corporation, 7 Cir., 128 F.2d 36; and analogous Illinois cases. We are convinced that the claim here in issue is not a claim within the meaning of the Bankruptcy Act, nor is it a petition for an allowance of compensation or reimbursement within the meaning of sections 642, 650 or 656. It is elemental that a trustee is entitled to reimbursement out of the trust estate for its expenses, including attorneys’ fees, in successfully defending against a debtor’s attempt to surcharge or falsify the trustee’s account or to obtain a money judgment against it for acts of misfeasance or malfeasance. The issues on the» cross complaint were tried separately in a plenary proceeding, and appealed separately, as a matter of right, and we think correctly so. However, if it be conceded that this appeal, to be effective, should have been by permission of this court, such defect is not a jurisdictional one in the sense that it deprives this court of power to allow the appeal, and we now allow it. This appeal was perfected within the time required by either method, and the scope of the review is in no manner affected. See Reconstruction Finance Corporation v. Prudence Securities Advisory Group, 311 U.S. 579, 61 S.Ct. 331, 85 L.Ed. 364. The issues raised by the counterclaim and answer had no connection with the preparation, adoption or the carrying out of the plan of reorganization, and either party to those issues was rightfully entitled to a plenary hearing before another court of competent jurisdiction, or they could by agreement or acquiescence try those issues in a plenary hearing before Judge Barnes, sitting as a court of equity. They chose the latter and that court warned the parties in no uncertain terms that neither party would be heard to say thereafter that it was not a plenary hearing. This claim for expenses in defending against and defeating the counterclaim of the Court Trustee was filed and tried after the decision in Woods v. City National Bank & Trust Co., supra. It must be remembered that in the latter case the only issues presented involved the services and expenses of claimant, the Bondholders’ Committee and the attorneys of both, with relation to the formation, approval and carrying out of • the plan of reorganization. The Supreme Court disallowed those claims but said that any out-of-pocket expenses incurred by them which benefited the estate should be allowed and paid by the estate, and that no such claim which did not benefit the estate should be allowed. • [5] It is this expression of the Supreme Court which constitutes the basis of this controversy. In other words the debtor claims that because claimant’s expense in successfully defending itself against the counterclaim for $300,000 was not beneficial to the estate, it cannot be allowed under the Supreme Court’s ruling in the Woods case. We do not so interpret that opinion. It does not expressly say so, nor was the Court there dealing with this kind of a claim. It was there dealing with claims alleged to be beneficial to the estate, and the Court merely held that claims for out-of-pocket expense in such cases must be proved to be beneficial to the estate. Here, the counterclaim was directed against claimant, not against the debtor or the Bondholders’ Committee, for the Court Trustee was prosecuting the case for their benefit. Under such circumstances claimant had a right to defend its liability and its honor. It did so successfully and nothing was recovered on the cross complaint. The basic question involved in the appeal to the Supreme Court concerned the power of the District Court in proceedings under Chapter X of the Chandler Act, 11 U.S. C.A. § 501 et seq., to disallow the claims of the indenture trustee, the Bondholders’ Committee, and the counsel for both, for compensation and reimbursement on the grounds that the claimants were serving dual or conflicting interests. As to the other points raised by the Court Trustee, which included those raised by his counterclaim, the Court said they were “so plainly without merit that they do not warrant mention.” Yet debtor’s counsel urges that claimant cannot recover for his out-of-pocket expenses, including a reasonable attorney fee, occasioned by its successful defense against the counterclaims, merely because the debtor was completely unsuccessful in the result of that issue. The Special Master found, and the District Court approved the finding, that the attorney fee of $15,000 for defending against the counterclaim was reasonable, and that claimant’s items of out-of-pocket expense, except an item of title expense for $1135.30, which has been paid, were proper items of allowance. Under broad equitable principles those findings are certainly sound. Patterson v. Northern Trust Co., 286 Ill., 564, 122 N.E. 55; Waterman v. Alden, 144 Ill. 90, 32 N.E. 972; Scott on Trusts, Vol. 2, sec. 188.4; Perry on Trusts (7th Ed.), sec. 894; Bogert on Trusts, Vol. 4, § 805. The fact that the issues on the counterclaims were tried before the bankruptcy court, at a plenary hearing, with the knowledge and consent of the parties, did not alter the character of that proceeding. It remained a suit in equity and was governed by equity rules. In re Rockford Produce and Sales Co., 7 Cir., 275 F. 811; Board of Trade of Chicago v. Johnson, 7 Cir., 283 F. 374. In defending against the counterclaim, claimant was not engaged in maintaining its claim 9, nor the fee petitions of the Bondholders’ Committee and its counsel. It was merely engaged in defending itself against a plenary action for damages, and under the well-recognized general rule, it was entitled to reimbursement of its expense so incurred. Appellee recognizes this general rule, but it contends that the ruling in Woods v. City Bank Co., supra, constitutes an exception thereto. For the reasons above stated we think that that ruling does not create an exception to the general rule, and that so much of the claim as found by the Special Master and approved by the District Court to be proper allowances to claimant for expenses in its defense to the counterclaim should be paid out of the assets of the estate. Likewise there should be an allowance out of those assets for the attorney’s fee of claimant’s attorneys, which both the Special Master and the District Judge found to be reasonable for the services rendered by them in its defense to the counterclaim. However, the Master found that if the court concluded that claimant was entitled to recover its costs incurred in defending itself against the counterclaim and surcharge, then only. 35% of the attorneys’ fees should be allowed because, “ * * * under approval and order of this Court, the property subject to reorganization was sold in the year 1942, and the return to-holders of certificates of beneficial interest approximated 35% of their capital investment with no interest from the year 1928.”’ That this property was ever sold is not supported by any evidence in this record. The facts as stipulated are in substance as. follows: 5357 shares of Granada Participation Certificates were issued under the-trust agreement by the trustees of the property reorganized in this proceeding. On-March 13, 1941, 3572.78 shares’were owned or controlled by a group represented by Fred E. Law, who is one of the parties to-this proceeding. On that date, Law offered on behalf of this group to purchase all outstanding shares of the Participation Certificates, or capital stock, as the unit certificates were referred' to in Law’s letter of that date. Thereafter, the trustees were-authorized by the District Court to sell all! of the outstanding shares of capital stock of Granada at a price of $35 a share for each share represented by outstanding Participation Certificates. At that time the number of outstanding shares was 1759.48, of which 53.74 had no beneficial owner and had been issued in excess of the requirements for the reorganization. Thus the total outstanding shares including those held by the Law group were 5303.26. On July 9, 1941, the Trustees sold and delivered to Fred E. Law, at a price of $35 per share, all the capital stock of Granada Apartments Hotel Corporation numbering 1759.48 shares. This certainly did not constitute a sale of the entire property, however, if it did, no authority has been cited to us, and we have found none, which in such event would authorize a deduction from the reasonable value of claimant’s attorneys’ fees for services rendered for claimant in its defense against the Trustees’ counterclaim which Mr. Law and his associates were greatly interested in sustaining. The order approving the Master’s report is reversed and the cause is ordered remanded to the District Court with instructions to enter an order directing the Granada Apartments Hotel Corporation to pay to City National Bank and Trust Company of Chicago the amounts prayed for in its petition, after deducting the title expense in the sum of $1135.30 which has been paid to Gty National, and decreeing that City National has a lien on the property of Granada Apartments Hotel Corporation for the payment thereof. In all other respects the District Court’s ruling approving the Master’s report is affirmed. This cause was argued before Evans and Sparks, Circuit Judges, and Lindley, District Judge, on April 17, 1946. On the same day we held consultation on the case and agreed that it should be decided as it is here written. On April 30, 1946, Judge Evans became seriously and dangerously ill and has since been confined in the hospital. He is unable at this time to be consulted on business matters. Under these circumstances the opinion is announced as a majority one. Question: Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? A. No B. Yes C. Mixed answer D. Issue not discussed 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, Appellant, v. Eric Wesley VALEN. No. 72-2017. United States Court of Appeals, Third Circuit. Argued March 22,1973. Decided May 22, 1973. Adams, Circuit Judge, concurred and filed opinion. S. John Cottone, U. S. Atty., Laurence M. Kelly, Asst. U. S. Atty., Scranton, Pa., for appellant. David Rudovsky, Kairys & Rudovsky, Philadelphia, Pa., Frank G. Harrison, Rosenn, Jenkins & Greenwald, Wilkes-Barre, Pa., for appellee. Before SEITZ, Chief Judge, and ALDISERT and ADAMS, Circuit Judges. OPINION OF THE COURT ALDISERT, Circuit Judge. In this appeal by the government from a district court order suppressing the admission of two suitcases of marijuana in a prosecution under 21 U.S.C. § 841 (a)(1), we are called upon to decide whether a government agent, having probable cause to search the suitcases, nevertheless should have obtained a warrant before doing so. The district court held that the general principles of search and seizure applied and that the agent should have obtained the warrant. We are to determine whether “exigent circumstances” were present, United States v. Menke, 468 F.2d 20 (3d Cir. 1972), so as to obviate the necessity for the warrant. Two suitcases were left at the Tucson, Arizona, offices of Emery Air Freight Corporation on the morning of May 25, 1971, to be shipped by Emery to Eric Valen, the appellee, in Scranton, Pennsylvania. Emery scheduled shipment of the suitcases on a flight leaving Tucson at approximately 12:30 p. m. that same day. Sometime between 11:30 a. m. and 12 o’clock, noon, an Emery employee, Dennis Thompson, detected an odor of marijuana emanating from this baggage. He immediately opened the suitcases and discovered them to be chock-full of the contraband weed. Thompson notified the U. S. Customs office at Tucson International Airport, and thereafter delivered the suitcases to the airport and identified them to Special Agent Donald Clements. Thompson advised Agent Clements that he had smelled marijuana but did not tell him he had opened the suitcases and seen the contents. Special Agent Clements learned that the suitcases were scheduled to be shipped to Scranton, Pennsylvania, on a flight departing within the hour and, upon examining the suitcases, he too detected the smell of marijuana. He, too, opened them and saw the marijuana. The suitcases were thereafter turned over to the Bureau of Narcotics and Dangerous Drugs (BNDD) for further investigation. BNDD agents conducted a further search of the suitcases preliminary to arranging for a controlled delivery at Scranton, Pennsylvania. Twelve hours after their originally scheduled departure, the suitcases were shipped to Scranton via New York City by commercial airline under the surveillance of agents. On May 27, 1971, Valen appeared at the Scranton-Wilkes-Barre Airport office of Emery, claimed the suitcases, left the airport building, placed the suitcases in the trunk of his car and began to drive away. He was arrested leaving the airport by BNDD agents who opened the trunk of Valen’s car, seized the suitcases and immediately opened them, verifying the contents to be forty-four pounds of marijuana. Valen filed a motion to suppress, contending that the various openings of his suitcases were warrantless searches and, as such, offended the Fourth Amendment. The district court agreed, observing that the critical search was the examination by Agent Clements. The court specifically found that although Clements had probable cause to search, and “under the circumstances a search warrant could not have been obtained at the [Tucson] airport [, .. .he] could have notified government officials at either New York or Scranton and a warrant [could have been] obtained and the suitcases searched at either of these locations.” United States v. Valen, 348 F.Supp. 1163, 1167-1168 (M.D.Pa.1972). At the suppression hearing, Thompson testified that on a previous occasion he had supplied Customs agents with similar information for which assistance he had been paid $375.00, and that he was told by Agent Clements to notify Customs officials if he came across anything suspicious in the future. For the information supplied in this case, Thompson was paid $100.00 by the government. Valen would have us conclude that this association with a government law enforcement agency was sufficient to render Thompson himself a government agent. Such a conclusion is essential to justify suppression on the theory that Thompson’s search was tantamount to that of a government agent. Activities of government agents, as distinguished from those of private persons, come within the ambit of the exclusionary rule if the conduct is violative of the Fourth Amendment. Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L.Ed. 1048 (1921); United States v. Goldberg, 330 F.2d 30, 35 (3d Cir.), cert. denied, 377 U.S. 953, 84 S. Ct. 1630, 12 L.Ed.2d 497 (1964). We are satisfied that the minimal contacts between Thompson and the government do not make out a prima facie case of government participation in Thompson’s search. Circumstances are not present here as existed in Corngold v. United States, 367 F.2d 1 (9th Cir. 1966) (en banc), in which a search by an airline employee was conducted at the request and under the supervision of government agents. Thompson was requested to do no more than report suspicious parcels; no attempt was made by the government to use him to do that which the agents themselves were forbidden to do. Thompson’s testimony fully supports the court’s conclusion that his search was conducted solely as a private party in order to protect himself and his employer, Emery. See Gold v. United States, 378 F.2d 588 (9th Cir. 1967). Moreover, the district court found that the status of Thompson as a private party or a government agent was immaterial because Thompson had not told Clements that he had previously opened the suitcases; he had told him only that he had detected the odor of marijuana. We agree with the district court's conclusion that no activity on the part of Thompson tainted the subsequent activity of Agent Clements. We therefore do not have the problem of the fruit of the poisonous tree doctrine, Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). As we said in United States v. Barrow, 363 F.2d 62, 66 (3d Cir. 1966), cert. denied, 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 (1967): “The doctrine ‘excludes evidence obtained from or as a consequence of lawless official acts, not evidence obtained from an “independent source.” ’ Costello v. United States, 365 U.S. 265, 280, 81 S. Ct. 534, 542, 5 L.Ed.2d 551 (1961).” In this case, Clements’ personal detection of the smell of marijuana is the independent basis of Clements’ search. • This brings us to a consideration of what the district court properly characterized as the critical issue in the case, the Tucson Airport search by Agent Clements. In the district court the government placed great dependence upon the “border search” doctrine as justification for Clements’ warrantless search. This contention is not pressed on appeal. Rather the government relies on the “exigent circumstances” exception to the warrant requirement announced in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and refined in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and United States v. Menke, supra. This exception to the warrant requirement, authorized for certain automobile searches, is premised on the theory that the mobility of the automobile presents a danger that contraband will move or disappear. Justice White put it succinctly: “But when there are exigent circumstances, and probable cause, then the search may be made without a warrant, reasonably.” Chimel v. California, 395 U.S. 752, 773, 89 S. Ct. 2034, 2046, 23 L.Ed.2d 685 (1969) (dissenting). The “exigent circumstances” exception is not a per se rule to be applied indiscriminately to every automobile containing contraband, nor should it be applied to every object that has the capacity for movement. Rather, its application should depend upon an evaluation of attendant circumstances. At a very minimum there must be probable cause to make a search for contraband. In United States v. Menke, supra, 468 F.2d at 23, we noted that a critical “distinction [exists] between the holding in Coolidge with respect to non-contraband goods, and the holding in Carroll that ‘contraband goods concealed and transported in an automobile or other vehicle may be searched for without a warrant.’ 267 U.S. at 153, 45 S.Ct. at 285.” A further consideration is the reasonable possibility of the agent’s loss of dominion and control over the object to be searched and the consequential loss of the contraband contained therein. “Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.” Chambers v. Maroney, supra, 399 U.S. at 51, 90 S.Ct. at 1981. This consideration should be balanced with the time which would be required to obtain a search warrant after it has been determined there is probable cause to make the search. Turning to the instant case, the government contended there was probable cause for Clements to make the search. The district court agreed. Additionally, the government emphasizes the extremely high mobility factor of the suitcases confronting Agent Clements. They were due to leave Tucson by air within the hour. They were destined for Scranton, Pennsylvania, with at least one plane change at New York. The agent did not know then whether the freight company was committed to shipping these bags on this particular flight. On the basis of these circumstances, considered at the time of Clements’ action, without the benefit of hindsight or later developments, it was reasonable for the agent to recognize the very real possibility that the contraband could disappear: an air freight handler could have removed the contraband in Tucson, New York, or Scranton. Thus, it was reasonable for him to conclude that a very real possibility existed that the government could lose the contraband, important evidence of a possible violation of federal laws. There was testimony that a minimum of six hours was required to obtain a search warrant. Under the totality of these circumstances, we hold that there were “exigent circumstances” to make the search without the warrant. At oral argument, Valen contended that at best the government had the right to “seize” and detain for a reasonable time, United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), but no right to “search.” However, as Chambers indicated with respect to temporary detention as an alternative to an immediate warrantless search, “[W]hich is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question. . . .” 399 U.S. at 51, 90 S.Ct. at 1981. Applying the language of that case to the ease at bar: For constitutional purposes, we see no difference between on the one hand seizing and holding a [suitcase] before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. [Where there is the danger of disappearance of contraband] there is little to choose in terms of practical consequences between an immediate search without a warrant and the [suitcases’] immobilization until a warrant is obtained. 399 U.S. at 52, 90 S.Ct. at 1981. Accordingly, we hold that Clements’ warrantless search of the suitcases was constitutionally permissible. As to the activities of the BNDD agents, it would exalt form over substance to have required them to have obtained a warrant to conduct a confirmatory search of the suitcases. Valen has not indicated any manner in which the BNDD search is distinguishable from that of Clements’; we view the two searches as constitutionally indistinguishable. We may consider the suitcases as seized and searched by Agent Clements. Without belaboring the point, the mere closing of the suitcases by Clements for transport to the BNDD does not make each reopening of the suitcases a new search. See Westover v. United States, 394 F.2d 164 (9th Cir. 1968). Chambers makes clear that the right to search which attaches at the time of seizure, continues to exist for a reasonable time after the seizure. See also, United States v. Dento, 382 F.2d 361 (3d Cir.), cert. denied, 389 U.S. 944, 88 S.Ct. 307, 19 L.Ed.2d 299 (1967). We conclude, therefore, the search in Arizona by BNDD agents was not prohibited. Unlike the BNDD search in Arizona, the Scranton search is distinguishable from Clements’ search. First, the suitcases must be viewed as no longer in the exclusive custody of the government at the time of the search. Although agents continued to observe the movement of the suitcases, Valen had asserted a possessory interest over them. Second, the suitcases were removed from the locked trunk of Valen’s automobile. The opening of the trunk, even though for the singular purpose of obtaining the suitcases, was a separate search; and we have concluded that this search is controlled by United States v. Menke, supra. Having concluded that none of the searches here involved violated Valen’s constitutional rights, we do not consider Valen’s “fruit of the poisonous tree” arguments. The order of the district court suppressing the marijuana evidence will be reversed. 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_indict	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the indictment was defective?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". McGOWAN v. J. H. WINCHESTER & CO., Inc. BURO v. AMERICAN PETROLEUM TRANSPORT CORPORATION. Nos. 255, 265, Dockets 20966, 20986. Circuit Court of Appeals, Second Circuit. June 24, 1948. Action by Pasquale Buro against American Petroleum Transport Corp., brought in the Supreme Court of the State of New York and removed by the defendant to the District Court of the United States for the Eastern District of New York. From a summary judgment for defendant dismissing the complaint, 75 F.Supp. 371, plaintiff appeals. Affirmed. Jacob Rassner, of New York City (Nathan Baker, Jack Steinman, and Robert Klonslcy, all of New York City, on the brief), for plaintiff-appellant Joseph McGowan. Jacob Rassner, of New York City (Thomas O’Rourke Gallagher, of Brooklyn, N. Y., and Jack Steinman and Robert Klonsky, both of New York City, on the brief), for plaintiff-appellant Pasquale Buro. Michael E. Hanrahan, of New York City (Gerard A. Connolly, Franklin Square, L. I., N. Y., on the brief), for defendantappellee J. H. Winchester & Co., Inc. John L. Quinlan, of New York City (Bigham, Englar, Jones & Houston and John M. Aheuae, all of New York City, on the brief), for defendant-appellee American Petroleum Transport Corporation. Leavenworth Colby, Sp. Asst, to Atty. Gen., Admiralty and Shipping Sec., Dept, of Justice (H. G. Morison, Asst. Atty. Gen., Edward L. Smith, Sp. Asst, to Atty. Gen., Admiralty and Shipping Sec., Dept, of Justice, and Martin J. Norris, Atty., U. S. Maritime Com’n, of New York City, on the brief), for the United States as amicus curiae. Before SWAN, CLARK, and FRANK, Circuit Judges. CLARK, Circuit Judge. These appeals were argued at the same time; and since each presents the same question, they may be disposed of in one opinion. The question is whether the general agent operating for the United States vessel owned by the latter is responsible for an injury to a third party caused by the negligence of the ship’s crew. There is no dispute as to the facts in either case, and they may be briefly stated. Both plaintiffs were employees of contractors engaged on behalf of the United States to repair vessels owned and operated by the Government. The defendants, by virtue of contracts with the United States acting by and through the War Shipping" Administration, were the general agents-for the vessels involved. McGowan, a rigger employed by the Seaboard Marine Co., Inc., was engaged in operating a winch on the S.S. “William A. Graham,” while Buro was a scaler employed by Tollefsen Brothers aboard the S.S. “William Penn.” The injury to McGowan occurred in the course of his work aboard the “Graham” when, as a result of negligence on the part of the ship’s crew, a metal shackle attached to a gantline struck him, causing the injury of which he complains. Buro, on the other hand, was injured as a consequence of the negligence of the “Penn’s” owner in failing to fit a proper platform at the point where the latter from a manhole on deck ended in the curved top of a shaft alley. It appears that he was descending into a tank when he slipped and fell because of this described negligence. Although it is conceded that upon proof of negligence each could have recovered from the United States as operating owner in possession of the vessels, each, instead, sued the general agent which the United States had employed under a standard form of agreement to manage and conduct the accounting and certain other shoreside business operations of the vessels. The claim is made that the defendants were in fact in possession and control of the vessels, and hence liable for the negligence that caused the injuries suffered. The McGowan case proceeded to trial before a jury. The district judge expressly reserved decision on the question of the possession and control of the vessel as a matter of law for his determination. He therefore instructed the jury that, if it found that negligence on the part of the crew had caused the injury, then it should return a verdict for the plaintiff. The jury so found and returned a verdict for the plaintiff for $13,000. Thereafter the district judge granted the defendant’s motion to set aside the verdict and dismiss the complaint. In his memorandum of opinion, 78 F.Supp. 507, he concluded that the members of the crew were exclusively the agents and employees of the United States, and not of the defendant. In reaching this result he relied on the holding in Caldarola v. Thor Eckert & Co., 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968. The Buro case never reached the jury. Buro began his suit in the Supreme Court of the State of New York, and the defendant removed it to the District Court of the United States for the Eastern District of New York. There the judge granted a motion for summary judgment made by the defendant on the basis of the plaintiff’s deposition and the terms of the general agency agreement entered into by the ■ defendant with the United States through the War Shipping Administration. The plaintiff failed to challenge an affidavit of the defendant’s treasurer to the effect that his company managed the “William Penn” “in accordance with the terms of the aforementioned General Agency Agreement, and not otherwise.” As in the McGowan case, the opinion of the district court, D.C.E.D.N.Y., 75 F.Supp. 371, relied on the Caldarola case, supra, as establishing that the agent was not liable for the negligence of the personnel employed by the Government to operate the vessel. We agree with the result in each case. Indeed, the situations here in their major outlines are the same as those which confronted the Supreme Court in the Caldarola case. There the defendant was the general agent for a vessel owned by the United States under an agreement substantially the same as the ones here involved. There, too, the plaintiff was the employee of a firm engaged to work on the vessel. In the course of his work he was injured by the negligent operation and maintenance of the vessel. The Supreme Court concluded that such general agency agreements should not be read “so as to find the Agents to be owners pro hac vice in possession and control of the vessel.” 332 U.S. 155, at page 159, 67 S.Ct. 1571, 91 L.Ed. 1968. Moreover, .that Court particularly noted the contention urged by the Government as amicus curiae, namely, that, if a contrary result obtained, issues affecting the immunity of such vessels in foreign ports, as well as questions of local taxation, would plague the operation of Government-owned vessels. Indeed, these very considerations in a large measure accounted for the result there reached. They are equally applicable here. The facts before us fall within the 'holding in the Caldarola case. The plaintiffs argue, however, that, where the general agent is in fact in possession and control of the vessel, it is liable for negligence resulting from its conduct. They say, further, that in such a situation the agency contract with the Government will not relieve it of responsibility for its torts. We need not consider the validity of this assumption, for the plaintiffs have failed to make any showing of such control and possession on the part of the defendants. The evidence relied on by McGowan no more than demonstrates that the defendant’s acts were consistent with the contractual provisions entered into with the Government, while in the Buro case, the defendant’s affidavit that it managed the “William Penn” “in accordance with the terms of the aforementioned General Agency Agreement, and not otherwise,” was not denied. It is settled that the general agency agreement does not make the agent the owner pro hac vice of the vessel so as to impose liability on the agent for injuries such as we have here. It would be an absurdity in such circumstances to impose liability on the agent where its acts have been in accordance with the provisions of the agreement and consistent therewith. That is the situation we have here. Nor does Hust v. Moore-McCormack Lines, 328 U.S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534, aid the plaintiffs. The Caldarola decision has narrowed the holding in the Hust case to such an extent that the general agent is liable only as “employer” to those seamen on the vessel who are injured as a result of negligence in connection with its operation. The case goes no further than that. Shilman v. United States, 2 Cir., 164 F.2d 649, certiorari denied 333 U.S. 837, 68 S.Ct. 608; Dichmann, Wright & Pugh, Inc. v. Weade, 4 Cir., 168 F.2d 914; Publicker Commercial Alcohol Co. v. Independent Towing Co., 3 Cir., 165 F. 2d 1002. Indeed, in Shilman v. United States, supra, this court held that the agent was not even the “employer” so as to be liable to the seamen for their wages or other contractual obligations. Accordingly we affirm the judgment in each case. Question: Did the court rule that the indictment was defective? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

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