Split (2)

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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. POPE v. UNITED STATES. No. 34, Misc. Decided June 17, 1968. Wallace M. Rudolph for petitioner. Solicitor General Griswold, Assistant Attorney General Vinson, Ralph S. Spritzer, Beatrice Rosenberg, and Jerome M. Feit for the United States. Per Curiam. The petitioner was convicted by a jury and sentenced to death under the Federal Bank Robbery Act, 18 U. S. C. § 2113(e). The Solicitor General has filed a memorandum for the United States conceding that this death penalty provision “suffers from the same constitutional infirmity” as that found in the Federal Kidnaping Act, 18 U. S. C. § 1201 (a). United States v. Jackson, 390 U. S. 570. Accordingly, the Solicitor General concedes that the petitioner’s “sentence must be vacated and the cause remanded ... for resentencing.” In light of this concession and upon an independent examination of the record, but without reaching any of the petitioner’s other claims, the motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted, the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further proceedings consistent with this opinion. Mr. Justice Black and Mr. Justice White dissent for the reasons stated in the dissenting opinion of Mr. Justice White in United States v. Jackson, 390 U. S. 570, 591. Mr. Justice Black dissents for the further reasons stated in his dissenting opinion in Lopinson v. Pennsylvania, ante, p. 648. Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:
sc_lcdisagreement	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. BROWNELL, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN, v. CHASE NATIONAL BANK OF NEW YORK, TRUSTEE, et al. No. 24. Argued October 16-17, 1956. Decided November 19, 1956. George B. Searls argued the cause for petitioner. With him on a brief were Solicitor General Rankin, Assistant Attorney General Townsend and James D. Hill. Simon E. Sobeloff, then Solicitor General, was also on a brief with Mr. Townsend, Mr. Hill and Mr. Searls. Thomas A. Ryan argued the cause and filed a brief for the Chase National Bank of New York, Trustee, respondent. Samuel Anatole Lourie argued the cause and filed a brief for Schaefer et ah, respondents. Arthur J. O’Leary argued the cause for Schwarzburger et al., respondents. With him on the brief was Kenneth J. Mullane. Mr. Justice Douglas delivered the opinion of the Court. The question in the case is whether petitioner, by virtue of a vesting order issued under § 5 of the Trading with the Enemy Act, as amended, 40 Stat. 411, 50 U. S. C. App. § 5, is entitled to the res of a trust established in 1928 by one Cobb and administered by respondent under an indenture. The trust was created for the benefit of the descendants of Bruno Reinicke who, by reason of his powers over the trust and his ownership of the right of reversion, was the real settlor. In 1945, when this Nation was at war with Germany, the Alien Property Custodian issued an order vesting “all right, title, interest and claim of any kind or character whatsoever” of the beneficiaries of the trust, declaring that they were nationals of Germany. Subsequently the Custodian (for whom the Attorney General was later substituted) intervened in an action brought by the trustee in the New York courts for a construction of the indenture and for an accounting. Relief sought by that intervention was that the income of the trust be paid to the Attorney General and that the powers reserved to the settlor be held to have passed by virtue of the vesting order to the Attorney General. We are also advised by the report of the case in the Court of Appeals that the Attorney General also claimed that, if the vesting order had not transferred the settlor’s powers to the Attorney General, “then the trust had failed and all of the trust property should pass to the Attorney General under the vesting order as being property of alien enemies.” Chase National Bank v. McGrath, 301 N. Y. 602, 603-604, 93 N. E. 2d 495. The New York Supreme Court denied the relief asked by the Attorney General, holding he was not entitled to the income of the trust, that he had not succeeded to the powers of the settlor, and that those powers were vested in the trustee as long as the settlor was barred from asserting them. On appeal the Appellate Division affirmed. Chase National Bank v. McGrath, 276 App. Div. 831, 93 N. Y. S. 2d 724. The Court of Appeals in turn affirmed. Chase National Bank v. McGrath, 301 N. Y. 602, 93 N. E. 2d 495. No review of that order was sought here. Some years passed, when, in 1953, the Attorney General amended the vesting order by undertaking to appropriate “all property in the possession, custody or control” of the trustee. In a suit in the New York courts he asked, among other things, that the principal of the trust be transferred to him. The Supreme Court of New York denied the relief. The Appellate Division affirmed without opinion. Chase National Bank v. Reinicke, 286 App. Div. 808, 143 N. Y. S. 2d 623. The Court of Appeals denied leave to appeal. Chase National Bank v. Reinicke, 309 N. Y. 1030, 129 N. E. 2d 790. The case is here on certiorari. 350 U. S. 964. We do not reach the several questions presented under the Trading with the Enemy Act for we are of the view that the principles of res judicata require an affirmance. In the first litigation, the Attorney General sought to reach the equitable interests in the trust and the powers of the settlor. When the Attorney General now seeks the entire bundle of rights, he is claiming for the most part what was denied him in the first suit. That is not all. In the first suit he claimed that if he were denied the powers which the settlor had over the trust, the trust must fail and all the trust property must be transferred to him. In other words, the Attorney General tendered in the first suit his claim to the entire property. Cf. Young v. Higbee Co., 324 U. S. 204, 208-209. Under familiar principles of res judicata, the claim so tendered may not be relitigated. Cromwell v. County of Sac, 94 U. S. 351, 352; Tait v. Western Maryland R. Co., 289 U. S. 620, 623. If he was not content with the first ruling, his remedy was by certiorari to this Court. Angel v. Bullington, 330 U. S. 183, 189. Having failed to seek and obtain that review, he is barred from relitigating the issues tendered in the first suit. Affirmed. Mr. Justice Clark and Mr. Justice Harlan took no part in the consideration or decision of the case. The state of war between this country and Germany was declared ended by the Joint Resolution of October 19, 1951, 65 Stat. 451. That Resolution contained, however, a proviso that all property, which, prior to January 1, 1947, was subject to seizure under the Act, continued to be subject to the Act. The 1953 vesting order preceded by a few days the termination of the vesting program of German-owned properties announced by the President on April 17, 1953. Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
songer_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. Leslie Stilman WIGAND, Appellant, v. J. C. TAYLOR, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee. No. 6560. United States Court of Appeals Tenth Circuit. Dec. 23, 1960. Roy Cook, Kansas City, Kan., for appellant. James C. Waller, Jr., Major, JAGC, Office of Judge Advocate General, Washington, D. C., (Wilbur G. Leonard, U. S. Atty., Topeka, Kan., and Alden Lowell Doud, First Lieutenant, JAGC, Office of Judge Advocate General, Washington, D. C., with him on the brief), for appellee. Before BRATTON, PICKETT and BREITENSTEIN, Circuit Judges. PICKETT, Circuit Judge. The petitioner, while on active duty with the United States Army in Germany, was tried and convicted in two courts-martial proceedings in each of which the crime of rape was charged, together with other offenses committed in connection with rape. The two sentences totaled 50 years, which the petitioner is now serving at the United States Penitentiary at Leavenworth, Kansas. The trials were reviewed as required by Article 66 of the Uniform Code of Military Justice, 10 U.S.C. § 866. In this habeas corpus proceeding it is contended that the failure to consolidate the charges for trial as provided for in Paragraph 30f of the Manual for Courts-Martial, United States, 1951, invalidates the second sentence, and that the prisoner is now entitled to his release. This is an appeal from a judgment of the District Court dismissing the petition and remanding the petitioner to the custody of the Warden. Briefly, the facts are these. On July 22, 1953 the petitioner, with an unknown accomplice, assaulted and raped a German girl near the town of Oberbernbach, Germany. On the 23rd of August, 1953, the petitioner, with two other American soldiers, made a similar attack upon another German girl at Box-burg, Germany. On September 28, 1953, a general court-martial was convened at Goeppingen, Germany to try the petitioner and his confederates for the offense of August 23rd. Upon conviction each of the three defendants was sentenced to 20 years confinement at hard labor. On February 8, 1954 a general court-martial was convened at Augsburg, Germany to try the petitioner for the offenses of July 22nd. Upon conviction he was sentenced to be confined at hard labor for a term of 30 years. No contention is made that the petitioner was not represented by qualified counsel during the two trials or throughout the appellate proceedings which followed his convictions. Likewise, no contention is made that the military tribunals which tried the appellant were improperly constituted or lacked jurisdiction over the offenses charged. We find no merit in the claim that the failure to consolidate the trial of the two offenses violated any fundamental right of the petitioner which is subject to review by a civil court. As a general rule, a review of a court-martial conviction in a civil court is limited to an inquiry as to whether the tribunal had jurisdiction over the person and the offense charged, and acted within its lawful powers. Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691 ; In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636; Sutiles v. Davis, 10 Cir., 215 F.2d 760, certiorari denied 348 U.S. 903, 75 S.Ct. 228, 99 L.Ed. 709; Easley v. Hunter, 10 Cir., 209 F.2d 483. In Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508, it was said: “In military habeas corpus cases, even more than in ^tate habeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings — of the fair determinations of the military tribunals after all military remedies have been exhausted. Congress has provided that these determinations are ‘final’ and ‘binding’ upon all courts. We have held before that this does not displace the civil courts’ jurisdiction over an application for habeas corpus from the military prisoner. Gusik v. Schilder, 340 U.S. 128 [71 S.Ct. 149, 95 L.Ed. 146] (1950) * * * (Footnote omitted.) The Court was careful to point out that -the military courts have the same responsibility as the federal courts to protect an accused from a violation of his ■Constitutional rights. But when the military court has fairly dealt with the ■question involving Constitutional guarantees, the Court concluded that “it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence.” In the present case, the error •complained of is not one which affects fundamental rights of the petitioner. 'The consolidation suggested in Paragraph 30 f of the Manual for Courts-Martial is a procedural matter, and is qualified by Paragraph 33 l, which provides in -part that “offenses charged against different accused which are not closely related should not be tried in a common trial, notwithstanding the fact that some other offenses with which each accused is charged may be closely related.” Under Paragraph 33 l, the charges arising out of the first rape were not subject to consolidation in a common trial of the petitioner and his co-defendants for the charges arising out of the second rape. In this event, the same paragraph further provides that “the convening authority may exercise his discretion in determining the order in which such charges shall be tried.” An abuse of this discretion is subject to correction in the military courts, but the procedural question is not reviewable in a habeas corpus proceeding in the civil courts. Casey v. Taylor, 10 Cir., 281 F.2d 549. Furthermore, the record does not disclose that the question was presented to the military courts. It may not be raised for the first time in a habeas corpus proceeding Bennett v. Davis, 10 Cir., 267 F.2d 15; Thomas v. Davis, 10 Cir., 249 F.2d 232, certiorari denied 355 U.S. 927, 78 S.Ct. 385, 2 L.Ed.2d 358; Suttles v. Davis, supra. Affirmed. . Paragraph 30f, Manual for Courts-Martial, United States, 1951, provides: “f. Subject to jurisdictional limitations, charges against an accused, if tried at all, should be tried at a single trial by the lowest court that has power to adjudge an appropriate and adequate punishment. See 33h and 1.” . Petitioner’s accomplice in this offense was never apprehended. . In Easley v. Hunter, 10 Cir., 209 F.2d 483, 487, we said: “The court held that from an examination of the record the questions presented in the habeas corpus action had been fully and fairly considered and decided by the reviewing authorities provided for in the procedure for courts-martial and could not be retried in the civil courts. In other words, as we understand the Burns decision, it does no more than hold that a military court must consider questions relating to the guarantees afforded an accused by the Constitution and when this is done, the civil courts will not review its action.” Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_r_natpr	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 "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. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a corporation, Appellant, v. BANK OF ALTENBURG, Appellee. No. 15052. United States Court of Appeals Eighth Circuit. Oct. 27, 1954. Gerald B. Rowan and Allen L. Oliver, Cape Girardeau, Mo. (Oliver & Oliver, Cape Girardeau, Mo., with them on the brief), for appellant. Rush H. Limbaugh, Cape Girardeau, Mo. (Limbaugh & Limbaugh, Cape Girardeau, Mo., on the brief), for appellee. Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges. COLLET, Circuit Judge. This action is brought by the plaintiff, a small bank, to recover on a bond executed by defendant insuring it against losses caused by “false pretenses”. The loss resulted from a “check kiting” scheme conceived and carried out by one William J. Schneier. Usually there are two banking institutions involved in such a scheme. In this instance they were the plaintiff and the Brazeau Bank. Both were small banks in rural communities only a few miles apart. Both incurred losses in substantial amounts. The Brazeau Bank closed as a result. It was taken over by the Federal Deposit Insurance Corporation, which instituted an action on a bond substantially similar to the one involved herein for its loss. That case was determined by this court on appeal in Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933. The factual details in this case are amply stated in the trial court’s memorandum opinion, Bank of Altenburg v. Fidelity & Casualty Co., D.C., 118 F.Supp. 529, 530: “This case is a sequel to Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933. “William J. Schneier obtained money by false pretenses, from the Brazeau Bank, by depositing checks in his personal account in the Brazeau Bank, drawn on his partnership account in the name of H & F Truck Service in the plaintiff bank. Schneier, as an integral part of the fraud perpetrated on the Brazeau Bank, was drawing checks on his personal account in the Brazeau Bank and depositing them in the H & F Truck Service account in plaintiff bank, to cover checks deposited in the Brazeau Bank. Schneier was engaged in ‘check kiting’ and on a large scale. “The plaintiff bank apparently first broke the chain when it refused payment on a check, drawn on it and deposited in the Brazeau Bank, for ‘insufficient funds.’ Thereafter, and within a period of days, each of the banks named returned all outstanding checks drawn by Schneier. “Schneier’s relations with plaintiff bank extend from February to late December, 1950. The Brazeau Bank lost $18,490 and the loss forced it to close. Suit was brought and recovery had by the Brazeau Bank on a bond of the Hartford Accident & Indemnity Co., v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933, protecting against loss resulting from false pretense. In this case the Bank of Altenburg seeks recovery of $15,338.71, plus interest, damages and attorney’s fees, on the same basis. Jury was waived. We now have the case for ruling on its merits. “The principal issue now turns on defendant’s claim that plaintiff did not rely on Sehneier’s representation that checks deposited in it would be paid on presentation and Schneier did not deceive the plaintiff, and that the transactions between plaintiff and Schneier were in fact granting of loans and plaintiff’s loss results from nonpayment of the loans. “The terms in the policy relied on for recovery are: “‘(B) Any loss of Property through robbery, larceny (whether common-law or statutory), burglary, theft, false pretenses, hold-up, misplacement, mysterious unexplainable disappearance, damage thereto or destruction thereof, whether effected with or without violence or with or without negligence on the part of any of the Employees, * * .’ “The record shows that at the very time Schneier opened his account with plaintiff in February, 1950, he initiated his check kiting scheme and that it continued regularly thereafter until December 30, 1950. On December 26th Schneier deposited in the H & F Truck Service account in plaintiff bank a check in the sum of $6,963.14 drawn on the Brazeau Bank. On December 28th he made a deposit of a like check for $6,894.70. On December 30th he made a deposit of a like check for $6,930.42. On December 30, 1950, a check was presented to plaintiff bank drawn by Schneier on the H & F Truck Service account which had been deposited in the Brazeau Bank. There were not sufficient funds in the account to pay it and the check was returned to the Brazeau Bank. In due course (three, four or five days), clearing through a St. Louis bank, the three checks drawn on the Brazeau Bank described above were returned to plaintiff marked ‘insufficient funds’ by the Brazeau Bank. Prior to the return of these three checks plaintiff had permitted Schneier to check out most of the money purported to be represented by the three checks. Plaintiff was able to reduce its loss from a balance in the account and by other means, from $20,788.26 to $15,338.-71. After notice to defendant of such loss, payment on the bond was refused. This suit followed. There is no controversy as to the physical manner in which Schneier operated to obtain the funds from the two banks, or the amount of plaintiff’s loss on the three checks. “Defendant charges, and plaintiff concedes, before recovery can be had in this suit, plaintiff must establish that the essential elements of obtaining money by false pretenses existed at the time it paid out funds on the three checks which caused its loss. One essential element of a case based on false pretense, and which is brought into issue, is that ‘the representation must be believed by the person allegedly defrauded and must be relied on and be the effective cause in inducing the party to whom it was made, to part with his property.’ (Defendant’s brief.) By brief, defendant reduces its defense to a charge that plaintiff ‘was in fact simply loaning Schneier the money represented by the checks for the three, four or five days it took them to clear through the St. Louis Clearing House.’ “The details of Schneier’s fraudulent operations are more fully developed in this case than in the Brazeau Bank case. To reach a conclusion as to whether plaintiff did or did not believe and rely upon Schneier’s representations that the three checks involved would be paid on presentation to the Brazeau Bank, we must view the case as the situation was presented to those in charge of plaintiff bank on the occasions and at the time under inquiry. Objectively, the issue before the court is not a simple one. This results in part from a record that reveals at once all the facts of Schneier’s transactions with the plaintiff, from the inception of his account until the fraud was stripped of all pretense, rather than as Schneier’s operations were presented from day to day to those in charge of plaintiff bank’s operations. “The deposit slips and the records of the H & F Truck Service account in plaintiff bank shed light on the question as to how the situation developed to those in charge of plaintiff bank, at the time the deposits were made. From the inception of the account on February 14th until December 30th, the deposit slips are uniform in some particulars. Excepting one on April 20, 1950, for $22.50, all deposits are for large sums. They vary from $6,000 to $8,000. With the exception of two deposits they were always made up of one large check and a number of small items, and in some cases currency was included. The large check in each deposit was, according to the undisputed testimony, drawn on the Brazeau Bank. The large check in each deposit did not change significantly in the account throughout the whole period. They were for odd sums and varied between $6,000 and $7,000. The one included in the initial deposit was for $6,361.69, in a total deposit of $6,431.43. The last one was for $6,930.42, included in a total deposit of $7,064.11. The deposit slips show deposits made with substantial regularity, generally from two to three to four days apart. “The ledger sheets are also material on the issue. They show the account, opening on February 14, 1950, was first overdrawn on April 14th in the sum of $4,026.80. This overdraft was taken up the following day by a deposit of $6,546.33, including a check on the Brazeau Bank for $6,352.25. Thereafter the overdrafts were as follows: On May 24, $122.34; May 26, $4.78; May 29, $97.76; June 12, $766.62; June 16, $1,101.95; June 19, $926.50; June 23, $1,140.02. There were no more overdrafts until October 13 when there was one for $5,398.32. On October 30 there was an overdraft of $103.07; November 3,, $521.93; November 6, $10.28; November 10, $264.19; November 13, $232.40; November 29, $46.88; December 15, $313.09; December 16, $827.55; December 18, $919.88. In every instance of overdraft it was taken up the day following by a substantial deposit which always included a check drawn by defendant on his personal account in the Brazeau Bank. The average daily balance was in excess of $3,400. “The large checks included in Schneier’s deposits drawn on the Brazeau Bank eventually gave concern to the employees in charge of plaintiff bank. After the November board meeting Mr. Poppitz, the cashier, told Mr. Mueller, a member of the Board of Directors, of the large cheeks being deposited by Schneier. Mueller lived in the same village as Schneier and was acquainted with him. Poppitz asked Mueller to see Schneier ‘and find out why he was writing such big checks.’ Mueller talked to Schneier with the result: “ ‘Mr. Schneier told me that he was buying a lot of poultry and eggs and livestock, that he was selling that here in St. Louis, collecting the money in his name, taking it to Brazeau and depositing it in his account, and then he would write a check to the H. & F. Truck Line to settle it, trucking and all/ “The regularity of the inclusion by Schneier in his deposits in plaintiff bank of large checks drawn by him on the Brazeau Bank raised a question, among those who were in charge of plaintiff bank, as to Schneier’s method of financial operations. The subject was discussed among the employees. Mr. Preusser, assistant cashier of plaintiff bank, testified to this. He summed up the conversations among the employees as follows: “ ‘We discussed the matter, and whenever we discussed it, we always ended in the same conclusion, that the H. & F. Truck Service met their obligations, and just a few times it happened that they did not have enough there, and we called them by telephone and they brought a deposit so we could pay their checks.’ “On cross-examination he gave the following testimony: “‘Q. * * if you had not permitted the drawing against an account until a check had time to clear and be collected, then Mr. - the H. & F. Truck Service account in that sense, during all the period of 1950, would never have had a balance in it, would it? A. Could be. ****** “ ‘Q. It was obvious to you during your conversations with Mr. Poppitz and Mr. Meyr that what Mr. Schneier was doing was covering a check drawn against the H. & F. Truck Service account by a check drawn against his personal account in the Bank of Brazeau? A. That is the way it seemed. “ ‘Q. Yes. And that is what you discussed with each other, is it not? A. Yes.’ “Under examination by the Court the witness testified: “ ‘Q. You never did think he had enough money to cover those checks? A. No, mostly likely not. “ ‘Q. Did you think then that he was using the funds of the two banks to finance his business with? A. Well, that is the way it seemed.' “The above testimony was qualified on re-examination as follows: “ <q_ * * * Now, did you say that that was obvious to you then or that it is obvious to you now? A. No, toward the last. It wasn’t about every one of the checks.’ “This testimony reflects the attitude and reasoning with respect to care and judgment of those in charge of plaintiff bank at the time the transactions were taking place that eventually led to plaintiff’s loss. We quote further: “ ‘Q. * * * when you were discussing the matter with the other employes of the bank, did you ever take the account and compare the deposits of checks on the Bank of Brazeau with checks drawn on your bank and deposited with the Bank of Brazeau, how they seemed to correspond, did you ever do that? A. No, we did not do that. ****** “ ‘A. We noticed the big checks. “ ‘Q. You noticed they were substantial, in like amounts ? A. That is right. “ ‘Q. What conclusion did you draw from that? A. Well, we just did not know what he was doing. “ ‘Q. * * * did you have any question whether he was transacting a legitimate business or not, so far as the two banks were concerned ? ****** “ ‘A. Well, we discussed that, too, and the conclusion we always got or the point we always arrived at was that he did meet his obligations. “ ‘Q. That he did? A. That he did meet his obligations at the bank and did not overdraw. “ ‘Q. As long as that was the situation, you would let the matter ride, is that right? A. That is right.’ “On October 28, 1950, the cashier of the Brazeau Bank wrote to plaintiff bank regarding the activities of Schneier. In this letter it was indicated that the Brazeau Bank was suspicious about the large checks which were coming through for deposit drawn on the H & F Truck Service and the large checks being drawn on Schneier’s personal account in the Brazeau Bank. This letter mentioned that these transactions happened about three times a week. The letter of the Brazeau Bank was not answered. Several weeks later a member of the board and another officer from plaintiff bank visited the Brazeau Bank. Only generalities were discussed. No examination was made of the personal account of Schneier. “About December 15th Mr. Vogel, who was the partner of Schneier in the H & F Truck Service, showed Mueller the H & F Truck Service bank statement. The partner was without knowledge why Schneier was writing the large checks. “Mr. Mueller again saw Schneier about December 15th. This time Schneier volunteered a statement about getting working capital in St. Louis. Again the discussion was general, surrounded with uncertainty. “ ‘Questions by the Court: “ ‘Q. * * * You say when you went to see Mr. Schneier, about December 15, 1950, is that correct? A. Yes. “ ‘Q. That he said after the first of January he was going to get some working capital from St. Louis? A. Yes. “ ‘Q. And he said he would not write any more big checks? A. That is right. “ ‘Q. How did you associate the getting of capital with ceasing to write big checks? A. I just did not understand it. I did not know how he really was operating. “ ‘Q. You did not put any significance in the connection of those two? A. No.’ “Mueller was asked if he had ever heard of the term ‘check kiting.’ It was a new word to him. T always figured the bank account, there is enough money there to cover it, alt your checks, and there is a balance over, there couldn’t be anything wrong with the bank account.’ “The assistant cashier’s lack of knowledge of kiting checks is typical of the other employees of the bank. He had never had any experience with the fraudulent process. It had never happened before in the experience of the Bank of Altenburg. “A Judge, over the years, hears detailed various schemes used by cunning and resourceful criminals to defraud. This does not aid in understanding the viewpoint of the operators of small banks in isolated communities, such as the plaintiff bank and the Brazeau Bank. It will not do to use the norm of urban bankers, lawyers or businessmen. We must not forget the customers of these two banks are the neighbors of the directors and employees of the banks. Small town and isolated residents are just as inclined to suspect strangers as they are prone to trust their neighbors. There is. very little in the life of the individual, business or otherwise, that is not common knowledge in the small community. Belief in the integrity of their neighbors is seldom disappointed. How long plaintiff bank has operated we do not know, but until Schneier disrupted the quiet complacency of the community, apparently no one in it had ever heard of check kiting. The record reveals the employees of plaintiff bank first had a question about Schneier’s account and eventually the question became a suspicion, but to reach a conclusion that Schneier was engaged in a fraudulent enterprise was a thought they resisted as though it were the plague. That this attitude is real we think is evidenced by the bank’s action when at last they were compelled to face the reality of Schneier’s fraud. A number of checks given by Schneier for small sums, but in their total several hundred dollars, came to the bank for payment. Apparently they were in payment to small farmers for livestock that Schneier had purchased. These checks were paid with full knowledge on the part of the bank that the act of paying them was increasing the bank’s loss. When the Court asked the official, while on the stand, why the bank would do such a thing, his face took on a pained expression and without any hesitancy or apparent feeling of lack of business judgment, he replied that the bank did not want to disappoint the holders of the checks, or words to that effect. The naiveness of the operators of plaintiff bank, in their belief in the common honesty of a man they knew, would be refreshing did it not at the same time represent, in its use, such utter incompetence for the work of handling other people’s money. But defendant wrote the bond in issue with full knowledge of the bank’s location. “There is direct evidence that the employees in charge of plaintiff bank, believed Schneier’s checks, constituting the loss in suit, would be honored on presentation to the Bank of Brazeau. There is circum-; stantial evidence of such belief in the payment of the amount of the checks, excepting a small sum, out of the bank’s funds before the checks cleared. Additional facts presented by this record support the contention of plaintiff that they relied upon Schneier’s representation that the checks would be paid on presentation to the Brazeau Bank. Plaintiff was dealing with Schneier as a resident of the community of long standing, a man of supposed honor and good reputation. Schneier was in a business of large operations involving substantial sums of money for the purchase of livestock and its transportation- to St. Louis. The plaintiff bank and the Brazeau Bank were competitors. Schneier’s account on paper was a valuable account with its daily balance in excess of $3,400 and neither bank was willing to reveal its records to the other bank or do anything to lose Schneier’s account except as a last resort. Schneier had always taken care of overdrafts promptly. The Brazeau Bank, with as much knowledge apparently as plaintiff bank, permitted itself to be used by Schneier with the same apparent lack of grasp of the true situation as did plaintiff, to its loss and destruction. “We find plaintiff has carried the burden of proof by showing, by the greater weight of the credible evidence, that the losses sued for come within the provisions of the bond. “The plaintiff bank was negligent in handling the Schneier account in that it failed to use that degree of care to protect itself from loss which an ordinarily prudent person would use under the same or like circumstances. Loss by false representation, incurred as the result of negligence, is not a defense. “The deposit of the three checks sued on did not constitute a loan by the plaintiff bank to Schneier. When the loan theory of defense is rejected, we must find that the plaintiff either was the victim of Schneier’s false pretenses, or hold that plaintiff bank deliberately gave away' its funds in an amount equal to almost one-third of its capital. To hold plaintiff did not rely on Schneier’s representations, and did not believe the checks would be paid on presentation can lead to no other conclusion. The latter conclusion we cannot accept. It would be an act of such character as to be dishonest. We think plaintiff bank’s officers and employees were grossly negligent, but not dishonest. “Other issues raised by the answer are determined by the law as declared by the Court of Appeals in the Brazeau Bank case.” The defenses relied upon, which are preserved on this appeal are (1) “that the evidence does not establish the essential elements to make a case of obtaining money or property by false pretenses,” (2) that the case is controlled by the law of Missouri, that the offense of false pretense has been defined by Missouri Statute, and under that law the facts do not make out the Missouri statutory crime of obtaining money by false pretenses, (3) that the loss sustained by plaintiff was not covered by the bond because it was not a loss from plaintiff’s premises, and (4) that the loss resulted from a transaction in the nature of a loan which was specifically excluded from coverage in the bond. Concerning the first assignment, it is asserted that two essential elements of the offense of obtaining money by false pretense are lacking — that there must be a representation of a past or existing (but not future) fact, and the representation must be believed by the person defrauded and must be relied upon and be the effective cause in inducing the party to whom it was made to part with his property. (We have stated those elements in the language used by defendant in its brief.) Defendant says that Schneier’s representation to plaintiff bank was in effect that the checks he deposited with it drawn on the Brazeau Bank would be paid when presented to that bank. It says that was a representation of a promissory nature of a future, not an existing fact. But that is not the manner in which the plaintiff’s officials construed Schneier’s conduct in presenting the checks to it for deposit. The representation implied was that sufficient funds were on deposit to meet the checks. That was a representation of a present existing fact. The second element said to be lacking, that the bank officers must have believed the implied representation of Schneier that the checks were good, either existed or was absent, dependent upon the facts developed at the trial. The charge that this element was not established amounts to an assertion that the evidence did not sustain the trial court’s conclusion to the contrary. The case was tried without a jury. The trial court developed this question in some detail in the memorandum opinion heretofore quoted. Our examination of the record discloses no justification for rejecting that finding. The further contention made in connection with the foregoing argument, that if plaintiff’s officials did not actually know the implied representation was false they should have known, was properly answered by the trial court that negligence of those officials is not, under the bond, a defense to a loss from false representations. The second assignment that under the law of Missouri the established facts did not make out a case of false pretenses but at most only constituted the misdemeanor of uttering a check with knowledge that there were insufficient funds in the bank upon which it was drawn for its payment, is based upon the premise that the term “false pretenses” used in the bond must be given the same technical meaning in which the term is used in the Missouri statute defining that criminal offense. We do not explore that question further than the authorities cited by both parties. Those authorities are not decisive of the question either way. For present purposes we will assume that defendant’s statement of the law of Missouri is correct. We do not recommend that assumption when the correctness thereof is decisive. It is not decisive here, because the scheme practiced did fall within the Missouri statutory definition of false pretenses. Defendant assumes that all that was involved in the false pretenses practiced was the presentation of a check and obtaining money or something of value therefor, knowing at the time that there were insufficient funds in the bank upon which it was drawn. Such conduct is characterized by § 561.460, RSMo 1949, V.A.M.S., as a misdemeanor and does not use the term false pretense in defining the offense. In that respect the definition of the misdemeanor differs from the definition of other offenses which do include in their definition the term false pretenses. Statutes defining offenses in which the term false pretenses is used are § 561.370 and § 561.-450 RSMo 1949, V.A.M.S. Section 561.-370 uses the following language: “561.370. Obtaining money, goods, by false pretenses. — Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing or by any other false pretense, * * * obtain from any person any money, personal property, right in action or other valuable thing or effects whatsoever, * * * shall upon conviction thereof be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained.” The pertinent language of § 561.450 is: “561.450. Confidence game or fraudulent checks — penalties.—Every person who, with the intent to cheat and defraud, shall obtain or attempt to obtain, from any other person, or persons, any money, property or valuable thing whatever by means or by use of any trick or deception, or false and fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly called ‘the confidence game,’ or by means or by use, of any false or bogus check or by means of a cheek drawn, with intent to cheat and defraud, on a bank in which the drawer of the check knows he has no funds or by means or by use, of any corporation stock or bonds or by any other written or printed or engraved instrument or spurious coin or metal, shall be deemed guilty of a felony and upon conviction thereof be punished by imprisonment in the state penitentiary for a term not exceeding seven years.” (Italics supplied.) Check kiting, as practiced here, involves more than the mere use of a check with insufficient funds in the bank to meet it. It involves a series of acts which together constitute a scheme, a studied device, false pretenses built upon a series of false representations designed to lull the banks involved into a feeling of confidence and security. The bad check is given. Money or credit is received from a bank other than the one on which the check is drawn. If credit is taken, that credit is usually drawn on immediately. The check kiter then deposits a check in the bank upon which the first check is drawn before the first check arrives there. The second check is drawn on the bank from which the first money or credit is received. Credit is taken for it and that credit covers the first check when it comes in and possibly additional credit. Then the process is carried on, back and forth, until the scheme is discovered. In this instance it went on from February, 1950, until late in December, 1950. The practice is a false pretense under § 561.370, if not a “trick” or “deception” involving a false and fradulent representation, or a “confidence game” under § 561.450. See State v. Whitledge, Mo., 269 S.W.2d 748, 751 The mere fact that the giving of a check with insufficient funds in the bank to meet it is one of the series of acts constituting the false pretense or the trick, device, or game, does not take the practice of “check kiting” out of the definition of the offenses defined by § 561.370 or § 561.450. Neither State v. Richman, 347 Mo. 595, 148 S.W.2d 796, nor State v. Griggs, Mo., 236 S.W.2d 588, relied on by the defendant, so holds. In each of those cases (which were criminal prosecutions) the act constituting the offense charged was the giving of a worthless check, in the Richman case a check with insufficient funds in the bank to meet it, in the Griggs case with no funds in the bank upon which it was drawn. No such scheme, device, game or false pretenses involved in check kiting was involved in those cases. We held in the Brazeau Bank case, Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933, 937: “We think the District Court correctly concluded that the loss sustained by the Brazeau Bank was directly caused by false pretenses and was within the coverage of the bond.” (See also Federal Deposit Ins. Corp. v. Hartford Ace. & Indem. Co., D.C., 106 F.Supp. 602.) While the question was not presented in the Brazeau Bank case in the way it is now presented, we adhere to the opinion there expressed and supplement our former expression by now further holding that the conduct practiced on plaintiff herein not only constituted false pretenses under the ordinary meaning of the term but also constituted false pretenses under the Missouri statutory definition of the criminal offense. The third assignment is based upon the following premises. It is said that “Property”, as defined in the bond, refers to tangible property, that the insuring clause requires that a loss of such tangible property must occur through false pretenses and that the loss must be of tangible property from defendant’s premises as a result of false pretenses practiced on defendant’s premises. From those premises it is argued that the loss in this instance was not covered by the bond. The argument is both resourceful and ingenious. It was presented to the trial court in the Brazeau Bank case, Federal Deposit Ins. Corp. v. Hartford Acc. & Indem. Co., supra, and overruled, it was not presented to us on the appeal of that case. See Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933. We are unable to agree with the argument that the bond contemplated reimbursement only in the event tangible or physical property was taken from the bank by means of false pretenses. The bond was to cover banking operations. The losses covered were very broad. The term “Property” was defined to include a multitude of types of assets of the bank, including “money, currency, coin * * * securities, evidences of debt, * * * certificates of deposit * * * rights, transfers, coupons, drafts, bills of exchange, acceptances, promissory notes, checks, money orders, * * * and all other instruments similar to or in the nature of the foregoing * * * and chattels which are not hereinbefore enumerated and for which the Insured is legally liable.” Applying the language used in the Brazeau Bank case, Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., supra, in construing another provision of a similar bond, “it is not conceivable to us that any disinterested banker, insurance underwriter, or lawyer would construe” this bond as not covering assets of the bank lost through a “check kiting” scheme practiced upon it. The fourth and last assignment that the loss resulted from a transaction in the nature of a loan is based upon an exclusion clause of the bond that it did not cover: “Any loss the result of the complete or partial nonpayment of or default upon any loan made by or obtained frpm the Insured, whether procured in good faith or through trick, artifice, fraud or false pretenses, except * The facts were developed in more detail in this case than in the Brazeau Bank case, but the essential elements of the scheme Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_appel2_7_5	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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). James C. MELO, Jr., Louise Jurik, Donald Ruggerio, Karol Danowitz, James Dicosimo, Lucille Russell, Walter W. Speelman, John Weikel, Appellants, v. Barbara HAFER and James J. WEST. Carl GURLEY, W. Gerard Best, Michael Brennan, Margaret Casper, Elizabeth Buchmiller, Daniel Clemson, Mary Fager, George A. Franklin, Jr., Appellants, v. Barbara HAFER. Nos. 89-1924, 89-1925. United States Court of Appeals, Third Circuit. Argued March 16, 1990. Decided Aug. 21, 1990. Rehearing and Rehearing In Banc Denied Sept. 21, 1990. William Goldstein (Argued), Groen, Lave-son, Goldberg, Rubenstone & Flager, Ben-salem, Pa., for appellants. Jerome R. Richter (Argued), Goncer M. Krestal, Blank, Rome, Comisky & McCau-ley, Philadelphia, Pa., for appellee, Barbara Hafer. Michael M. Baylson, U.S. Atty., Stuart M. Gerson, David F. McComb, Asst. U.S. Attys., Philadelphia, Pa., Barbara L. Her-wig, Peter R. Maier (Argued), Appellate Staff, Civ.Div., Dept, of Justice, Washington, D.C., for appellee, James J. West. Before SLOVITER, BECKER and STAPLETON, Circuit Judges. OPINION OF THE COURT SLOVITER, Circuit Judge. I. Introduction This is an appeal from the district court’s dismissal of two civil rights actions. In the action with Carl Gurley as the lead plaintiff, eight terminated employees assert a claim under 42 U.S.C. § 1983 alleging that their discharge by Barbara Hafer, the Auditor General of Pennsylvania, was political and therefore violated their due process and First Amendment rights. In the action with James C. Meló as the lead plaintiff, eight other terminated employees, who similarly allege a violation of their civil rights by Hafer, further allege that Hafer and James West, the acting United States Attorney for the Middle District of Pennsylvania, conspired to deprive them of their civil rights. The Melo plaintiffs also assert state law claims against West. This appeal requires us to consider whether a claim for monetary relief brought under 42 U.S.C. § 1983 may be maintained against a state official in her individual capacity, whether a claim under the same statute may be maintained against a federal official when he is alleged to have conspired with a candidate for state office, and whether a scope of employment certification issued by the government in a claim brought under the Federal Tort Claims Act is reviewable. II. Facts and Procedural History The eight plaintiffs whose complaints were consolidated into the Melo action allege that they were employed in various capacities through January 1989 in the Pennsylvania Auditor General’s Office, during which time they had compiled satisfactory work records. The complaints allege that sometime after John Kerr, a former employee in the Auditor General’s Office, admitted that he received payments to influence either hiring or promotion decisions for 21 employees in the Auditor General’s Office, acting United States Attorney West provided a list of the 21 employees to Donald Bailey, the then-Auditor General, in a confidential letter dated on or about January 21, 1988. The letter stated that “[w]e can express no opinion on whether these listed individuals knew of the purchase of their job” and it contained the request “that you keep these names strictly confidential, not use them for any type of media disclosures other than necessary to appropriate administrative proceedings, and make them available only to your most trusted employees on a need-to-know basis.” Melo App. at 11. Bailey subsequently conducted an investigation of the 21 employees through his Chief Counsel, James L. McAneny, and McAneny concluded that the Melo plaintiffs committed no wrongdoing nor were they aware of any wrongdoing committed on their behalf. On or about April 30, 1988, Hafer was nominated as the Republican candidate for Auditor General and Bailey, the incumbent, was nominated as the Democratic candidate. The complaints allege that the Melo plaintiffs were registered Democrats and West was a registered Republican. They allege that during the election campaign between Hafer and Bailey, West provided Hafer with a copy of the letter he sent to Bailey and advised Hafer that the 21 employees on the list “bought their jobs”; that West was “motivated by a desire to assist [Hafer] in the November, 1988 election and to create and/or foster a campaign issue that favored Ms. Hafer”; and that West provided the list with “a knowledge, understanding and expectation that ... Ms. Hafer, if elected, would fire all of the people on the list.” Melo App. at 13. Hafer allegedly stated on numerous occasions during the campaign that she received the “jobs-bought” list from West and that, if elected, she would fire all employees on the list. Hafer was elected as Auditor General in November 1988. According to the complaints, on February 1, 1989, Hafer, without conducting any additional investigation to determine the alleged involvement of the Melo plaintiffs in the job-buying scheme, fired 18' émployees whose names appeared on the “jobs bought” list, including all eight Melo plaintiffs. In her letters terminating the Melo plaintiffs’ employment, Hafer stated that the dismissal was “necessary based on information gathered by my office as well as through cooperation with other governmental agencies as a result of an investigation of your involvement in a job buying and/or a job promotion scheme in the Auditor General’s Office.” Melo App. at 14. The Melo plaintiffs allege that Hafer did not follow the provisions in the Auditor General’s Policy and Procedure Manual, in effect since on or about January 1986, which includes procedural protections and a “just cause” requirement for dismissals. The complaints also allege that an article in the February 2, 1989 edition of the Patriot-Capital News quoted both Hafer, as stating that she was firing 18 employees who had paid “up to $5,000 each for their jobs under a previous administration,” and West, as stating that “he appreciated Ms. Hafer’s definitive action in firing the eighteen employees.” The factual allegations and legal claims against Hafer alleged by the Gurley plaintiffs are similar to those made by the Melo plaintiffs. The Gurley plaintiffs allege that they had been continuously employed at the Auditor General’s Office in various capacities until February 21, 1989 and had performed their work satisfactorily; that all but one of them were registered Democrats; that all had been supporters of Bailey in the November 1988 election for Auditor General; and that on February 21, 1989, Hafer discharged them without explanation. Unlike the Melo plaintiffs, they have not sued West and make no allegations as to him. The claims made by the plaintiffs under 42 U.S.C. § 1983 are that their firing by Hafer deprived them of their right to procedural and substantive due process and interfered with their First Amendment freedom of political association. The Melo plaintiffs also allege that Hafer and West engaged in a conspiracy to deprive them of due process and equal protection of the law, and they include the state law claims against West of defamation and interference with contractual relations. Each Melo plaintiff requests $2 million in compensatory damages, $1.5 million in punitive damages, and reasonable attorneys’ fees stemming from the alleged violations of their civil rights. They do not request any form of injunctive relief. Each Gurley plaintiff requests $500,000 in compensatory damages and $500,000 in punitive damages. Six of the Gurley plaintiffs also request reinstatement without back pay. The procedural sequence of events is relevant to an understanding of the nature of the district court’s disposition. The complaints were filed in April and May of 1989. Hafer filed her answers on June 14, 1989. On July 6, 1989, the district court ordered both the Melo and the Gurley plaintiffs to submit joint discovery schedules by July 12, 1989, not to extend beyond September 28, 1989. However, on July 14, 1989, the court deferred the filing of a joint discovery schedule and ordered Hafer to submit her motion for summary judgment by August 9, 1989. The court consolidated the actions on July 18. West moved to stay discovery in the Melo actions on July 20, but the district court never acted on this motion. On July 28, 1989, West filed a motion in the Melo action to dismiss or, in the alternative, for summary judgment, contending, inter alia, that the Melo plaintiffs’ section 1983 claim was barred because they had not alleged facts sufficient to establish a conspiracy between Hafer and West whereby he was acting under color of state law. Concurrently, the Director of the Torts Branch of the Department of Justice filed a certification pursuant to 28 U.S.C. § 2679(d)(1), stating that “[o]n the basis of information presently available with respect to the occurrences referred to therein, defendant James J. West at all times relevant was acting within the scope of his employment as an employee of the United States.” Melo App. at 195. The government also filed a motion to substitute itself for West on the Melo plaintiffs’ state law claims of defamation and contractual interference, again pursuant to 28 U.S.C. § 2679(d)(1), and thereafter to dismiss these claims on the ground that under 28 U.S.C. § 2680(h) the government had not waived its sovereign immunity for claims for defamation and contractual interference. On August 9, 1989, Hafer filed a consolidated motion for summary judgment against both the Melo and Gurley plaintiffs, contending, inter alia, that because she was sued only in her official capacity, the plaintiffs’ claims were barred by the Eleventh Amendment, and further contending that the plaintiffs had not stated a claim for conspiracy. The Melo plaintiffs, in response to West’s motion for summary judgment or dismissal, argued that the court should allow a continuance of discovery pursuant to Federal Rule of Civil Procedure 56(f), as they had no personal knowledge of what transpired between West and Hafer and would therefore not be able to submit affidavits based on the “personal knowledge” of the affiants in order to oppose the motion for summary judgment. Attached to the response was a declaration of James C. Melo to that effect. Again, in their joint response to Hafer’s motion for summary judgment, the plaintiffs stated that they did not have adequate time to conduct discovery, although they did not attach the affidavit thereto. In three separate orders issued on September 28, 1989, the district court granted Hafer’s motion for summary judgment, granted the government’s motion to substitute itself for West and to dismiss the Melo plaintiffs’ state tort claims, and declared as moot West’s motion for summary judgment. On the same day the court denied as moot the Melo plaintiffs’ motion to remand the case that had been removed from state court. See note 1 supra. In a subsequent opinion, the court explained its orders. It held that the plaintiffs’ section 1983 claims were barred because they had sued Hafer in her official capacity and that she was not a “person” for purposes of section 1983. The court held that the Melo plaintiffs had not alleged facts showing that the alleged conspiracy between Hafer and West involved some racial or other class-based discriminatory animus, and that therefore their claim based on equal protection, if treated as filed under 42 U.S.C. § 1985(3), failed. Finally, the court held that substitution of the government for West as a defendant to the Melo plaintiffs’ state law claims was “necessitated” by the Federal Tort Claims Act in light of the government’s certification that West was acting within the scope of his employment, and that those claims were then dismissed because claims against the United States for defamation and contractual interference are expressly excluded under 28 U.S.C. § 2680(h) from the sovereign immunity waiver in the Federal Tort Claims Act. Both the Melo and the Gurley plaintiffs filed timely notices of appeal, which we have consolidated for our review. We have jurisdiction over the district court’s final orders pursuant to 28 U.S.C. § 1291. III. Discussion A. Standard of Review At the outset, we must consider what material is appropriately before us. The district court dismissed the action against West but denominated the disposi-tive order as to Hafer as the grant of summary judgment for Hafer. We have previously held that the label used by a district court, albeit indicative, “ ‘is not binding on a Court of Appeals.’ ” Bogosian v. Gulf Oil Corp., 561 F.2d 434, 443 (3d Cir.1977) (quoting Tuley v. Heyd, 482 F.2d 590, 593 (5th Cir.1973)), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978); see also Rose v. Bartle, 871 F.2d 331, 340 (3d Cir.1989). Rather, we must “look to the course of the proceedings and basis for decision in the district court” to determine our standard of review. Bogosian, 561 F.2d at 443. If the district court dismisses an action for failure to state a claim on the face of the pleadings on a motion for summary judgment, “a motion so decided is functionally equivalent to a motion to dismiss” and we must review it accordingly. Id. at 444; see also 6 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice ¶ 56.02[3], at 56-33 to 56-34 (2d ed. 1988). The plaintiffs contend that we should not consider any discovery materials extraneous to the complaint, as they did not have an opportunity to complete discovery and the district court in fact disposed of the actions based on the face of the complaint. Hafer and West, on the other hand, argue that the plaintiffs had an adequate time to conduct discovery and we should therefore determine whether they are entitled to summary judgment based on the factual record compiled during discovery. Although the parties have engaged in some discovery and have submitted a variety of documents external to the complaints and their answers, we conclude that we must review the district court’s action as one granting a motion to dismiss. The district court’s memorandum opinion makes no reference to any of the materials submitted by the parties that were extraneous to the pleadings. It is clear that the court’s action rested solely on the failure of the allegations on the face of the complaint to state claims against Hafer and West. See Bogosian, 561 F.2d at 444 (district court order should be treated as one dismissing complaint for failure to state a claim because it “excluded everything but the complaint in granting the motions”). Furthermore, the district court’s July 14, 1989 order deferred the filing of a joint discovery schedule and ordered Hafer to submit her motion for summary judgment by August 9, 1989. Although this order did not technically prohibit the parties from engaging in further discovery, it could reasonably have deterred further discovery by plaintiffs. Certainly the order demonstrates that the court was willing to consider the defendants’ dispositive motions without a complete factual record developed during a defined discovery period. The plaintiffs’ objections to proceeding with summary judgment were called to the district court's attention by the Melo plaintiffs in their response to West’s motion. They sought to comply with Rule 56(f) through the declaration by Melo in which he stated that “neither I nor the other plaintiffs would have personal knowledge of [West and Hafer’s communications during the 1988 election]” and requested that the court grant a continuance of discovery until “counsel has had an opportunity to examine under oath the defendants, Mr. Bailey and all other persons who have knowledge of the matter.” Melo App. at 111, 112. The district court's failure to rule on the Melo plaintiffs’ request for a continuance of discovery, as well as its failure to rule on West’s motion for a protective order, suggests that the court considered the discovery issue irrelevant for purposes of its decision. Because we treat the district court’s orders as granting a motion to dismiss, we must determine whether, in accepting as true the factual allegations in the Melo and Gurley plaintiffs’ complaints and all reasonable inferences that can be drawn therefrom, no relief can be granted under any set of facts which could be proved. See Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). For this purpose, we cannot take cognizance of the affidavits of Hafer and West denying many of the plaintiffs’ factual allegations. B. Individual Capacity Claim Against Hafer In Will v. Michigan Dept. of State Police, — U.S. -, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989), the Supreme Court held that neither a state nor state officials sued in their official capacities for money damages are “persons” under section 1983, and that therefore a suit brought in state court against the Michigan Director of State Police was barred. The district court, relying on Will, concluded that the plaintiffs have sued Hafer only in her official capacity and therefore dismissed their section 1983 claims. On appeal, the plaintiffs contend that the district court erred as a matter of law. The lines marking the boundaries between official and personal capacity suits have been drawn primarily in the context of Eleventh Amendment cases. That amendment has been interpreted to bar suits for monetary damages by private parties in federal court against a state or against state agencies. See Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985); Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974). It also bars a suit against state officials in their official capacity, because the state is the real party in interest inasmuch as the plaintiff seeks recovery from the state treasury. Graham, 473 U.S. at 165-66, 105 S.Ct. at 3104-05. In a suit against state officials in their “personal” capacity, however, where the plaintiff seeks recovery from the personal assets of the individual, the state is not the real party in interest; the suit is therefore not barred by the Eleventh Amendment. Id. at 165-68, 105 S.Ct. at 3104-07. The Will Court’s conclusion that section 1983 suits could not be brought against state officials in their official capacity followed from the Court’s earlier Eleventh Amendment decisions. Although the Will Court did not have occasion to consider the status of personal capacity suits against state officials under section 1983, we conclude, borrowing the same Eleventh Amendment jurisprudence that the Will Court looked to, that because personal capacity suits against state officials are actions against the individual and not the state, state officials sued for damages in their personal capacities are “persons” under section 1983 and therefore subject to suit. See, e.g., Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 567 n. 10 (1st Cir.1989). In determining whether plaintiffs sued Hafer in her personal capacity, official capacity, or both, we first look to the complaints and the “course of proceedings.” Graham, 473 U.S. at 167 n. 14, 105 S.Ct. at 3106 n. 14 (quoting Brandon v. Holt, 469 U.S. 464, 469, 105 S.Ct. 873, 876, 83 L.Ed.2d 878 (1985)); see Gregory v. Chehi, 843 F.2d 111, 119 (3d Cir.1988). One of the Gurley complaints, which contains a request by six of the plaintiffs for both reinstatement and damages, explicitly specifies that plaintiffs’ request for reinstatement “is asserted against the defendant in her official capacity,” but that their monetary claims against Hafer “are asserted against the defendant in her personal capacity.” The Will opinion supports maintenance of a section 1983 claim against a state official for reinstatement. The Court, relying again on the Eleventh Amendment, stated that “a State official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’ ” Will, 109 S.Ct. at 2311 n. 10 (quoting Graham, 473 U.S. at 167 n. 14, 105 S.Ct. at 3106 n. 14). It follows that the district court erred insofar as it dismissed the Gurley plaintiffs’ claim for reinstatement against Hafer. As we noted above, these Gurley plaintiffs were explicit that their monetary claims were asserted against Hafer in her individual capacity. The remaining Gurley plaintiffs and the Melo plaintiffs, although not as explicit, signified a similar intent because the captions in the complaints only list “Barbara Hafer,” and not the Commonwealth of Pennsylvania, as a defendant, and only request damages from Hafer and not from the state. It appears that Hafer understood that plaintiffs sought to sue her in her personal capacity because she raised the defense of qualified immunity throughout the course of these proceedings, a defense available only for governmental officials when they are sued in their personal, and not in their official, capacity. See Graham, 473 U.S. at 166-67, 105 S.Ct. at 3105-06; Conner v. Reinhard, 847 F.2d 384, 394 n. 8 (7th Cir.), cert. denied, 488 U.S. 856, 109 S.Ct. 147, 102 L.Ed.2d 118 (1988); Melton v. City of Oklahoma City, 879 F.2d 706, 727 n. 32 (10th Cir.), reh’g granted in part on other grounds, 888 F.2d 724 (10th Cir.1989); Lundgren v. McDaniel, 814 F.2d 600, 604 (11th Cir.1987). Moreover, once plaintiffs explained in the district court that they sued Hafer for damages in her individual capacity, they should have been given leave to amend to so assert with specificity, if there was any remaining ambiguity about that issue. The district court held that the plaintiffs only sued Hafer in her official capacity, notwithstanding their protestations to the contrary, because Hafer would not have been empowered to effectuate the removal of plaintiffs from their positions had she been acting in her personal capacity rather than in her role as Auditor General. However, the fact that Hafer’s position as Auditor General cloaked her with the authority to fire the plaintiffs merely supports the undisputed proposition that she acted under color of state law in firing the plaintiffs, a prerequisite to a successful section 1983 suit. See Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir.1984). It does not follow that every time a public official acts under color of state law, the suit must of necessity be one against the official in his or her official capacity. See Graham, 473 U.S. at 166, 105 S.Ct. at 3105 (to establish personal liability under section 1983 “it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right”) (emphasis added). We reject Hafer’s suggestion that a state official can be sued in her personal capacity only if the allegedly unconstitutional actions were not taken in her official capacity. The Supreme Court cases expressly recognize that individual capacity suits may be brought against government officials who acted under color of state law. See,, e.g., Brandon v. Holt, 469 U.S. 464, 472-73, 105 S.Ct. 873, 878-79, 83 L.Ed.2d 878 (1985); Owen v. City of Independence, 445 U.S. 622, 637-38, 100 S.Ct. 1398, 1408-09, 63 L.Ed.2d 673 (1980). In fact, underlying each of the cases considering the availability of a qualified immunity defense to a claim for damages against the state official was an individual capacity claim. See, e.g., Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (suit by arres-tee against state trooper); Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) (suit by employee against official of state highway department); Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984) (suit by clients against public defenders who allegedly conspired with state officials); Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978) (suit by prisoner against state prison officials); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (suit by former prisoner against state prosecuting attorney). Hafer argues that because she has final policymaking authority over hiring and firing in the Auditor General’s Department, her actions leading to the firing of the plaintiffs, even if in violation of a “just cause” dismissal policy followed by previous Auditor Generals, constitutes a new state policy and therefore precludes suit against her in her personal capacity. The. Second Circuit, in a persuasive opinion, has rejected a similar argument. In Farid v. Smith, 850 F.2d 917 (2d Cir.1988), an inmate filed a civil rights action against the superintendent of the correctional facility for improperly depriving him of access to certain personal materials. The court held that although the Eleventh Amendment barred suit for damages against the superintendent in his official capacity, it did not bar the inmate from pursuing the action against the superintendent in his personal capacity, even if he was following state policy when committing such acts. Id. at 921. A fortiori, a state official who herself is responsible for an unconstitutional policy would be personally liable, unless of course she is ultimately successful in her qualified immunity claim. However, disposition on qualified immunity grounds is far different from a disposition on failure to state a claim, which is what the district court did here. In short, .we hold that a section 1983 claim for reinstatement may be maintained against Hafer in her official capacity, that a damage claim under section 1983 alleging civil rights violations may be maintained against Hafer in her individual capacity, that the allegations in the complaints adequately put her on notice of that claim, and that such a claim is not barred by the Eleventh Amendment. Just as the district court erred in dismissing the reinstatement claims because Hafer is a “person” for injunctive relief, so also the district court erred in dismissing the plaintiffs’ section 1983 damage claims against Hafer individually because she is a “person” in that capacity . C. § 1983 Conspiracy Claim Against West The section 1983 claim against West asserted by the Melo plaintiffs stands on a different footing than the claim against Hafer. We must consider whether, under the allegations of the complaint, West, who was not a state official, can be viewed to have been acting under color of state law. Because the district court only considered the allegation that West and Hafer conspired to deprive the Melo plaintiffs of their constitutional rights as a claim under 42 U.S.C. § 1985(3), it did not reach this issue. A fair reading of the complaint shows that plaintiffs seek to assert a section 1983 claim, and West does not contend otherwise. Maintenance of a section 1983 claim requires a showing that the defendant acted under color of state law, but the Supreme Court has held that private parties acting in a conspiracy with a state official to deprive others of constitutional rights are also acting “under color” of state law. See Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970); United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966). Consequently, such private parties can be subject to liability under section 1983. See Adickes, 398 U.S. at 152, 90 S.Ct. at 1605. It follows that federal employees who conspire with state officials to violate someone’s constitutional rights are treated as acting under color of state law. See Hampton v. Hanrahan, 600 F.2d 600, 623 (7th Cir.1979), rev’d in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). The Melo complaint alleges that West transmitted the “jobs bought” list to Hafer when she was a candidate “with a knowledge, understanding and expectation that he would be creating a campaign issue favorable to Ms. Hafer and that Ms. Hafer, if elected, would fire all the people on the list.” Melo App. at 13. Assuming arguen-do that the alleged working relationship between Hafer and West during the fall 1988 campaign constitutes “concerted” or “joint” action sufficient to transmute West, a private actor, into one acting under color of state law, see Robb v. City of Philadelphia, 733 F.2d 286, 291-92 (3d Cir.1984); Cruz v. Donnelly, 727 F.2d 79, 82 (3d Cir.1984), it is insufficient in this case because Hafer was not a state actor at the time of the alleged concerted and conspiratorial conduct. We note that the complaint does not allege that Hafer and West conspired at any time after Hafer took office. It is true that conspirators can be held liable for subsequent acts taken pursuant to a conspiracy, see Hampton, 600 F.2d at 621, and that the Melo plaintiffs have alleged that their firing after Hafer became a state official was “in the course of, in furtherance of and was the culmination of the aforesaid conspiracy.” Melo App. at 18. However adequate these allegations might be, if proven, to impose liability under civil conspiracy law generally for acts subsequent to the formation of the conspiracy, they do not supply the missing link of action under color of state law. When a private party has been held to be acting under color of state law, it has always been because of action in conjunction with an official who was then a state actor. See, e.g., Adickes, 398 U.S. at 149-52, 90 S.Ct. at 1603-06; Lugar v. Edmondson Oil Co., 457 U.S. 922, 941-42, 102 S.Ct. 2744, 2755-56, 73 L.Ed.2d 482 (1982); United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539, 1546-47 Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_treat	E	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. William R. MILBURN and Richard V. Thompson, Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee. No. 83-5248. United States Court of Appeals, Eleventh Circuit. June 18, 1984. Irving Weinsoff, Miami, Fla., for plaintiffs-appellants. Stanley Marcus, U.S. Atty., Robert A. Rosenberg, Linda Collins Hertz, Asst. U.S. Attys., and Susan M. Chalker, Sp. Asst. U.S. Atty., Miami, Fla., for defendant-appellee. Before FAY and ANDERSON, Circuit Judges, and MARKEY, Chief Judge of the Federal Circuit. Honorable Howard T. Markey, Chief Judge, U.S. Court of Appeals for the Federal Circuit, sitting by designation. MARKEY, Chief Judge: Milburn and Thompson appeal the March 22, 1983 order of the District Court dismissing with prejudice their complaint against the United States. We vacate and remand. Background Milburn and Thompson jointly owned an aircraft. They rented it to a pilot, who flew it to the Turks and Caicos Islands, British West Indies (Islands). On May 6, 1981, the Islands' government seized the aircraft because it had been used to transport narcotics in violation of the Islands’ laws. The aircraft was forfeited. When the aircraft was seen in July of 1981 at Executive Airport in Fort Lauder-dale, Florida, the U.S. government, aware of the Islands’ claim, seized it. The Federal Bureau of Investigation informed Mil-burn and Thompson of the seizure, but the U.S. government returned the aircraft to the Islands without a hearing. Milburn and Thompson filed their complaint in the District Court on August 4, 1982. The complaint recited that Milburn and Thompson owned the aircraft, that the U.S. government had seized it, and that it was then possessed by the Islands’ government. No mention was made of the forfeiture. Count I set forth a claim under the Federal Torts Claim Act, 28 U.S.C. § 2671 et seq., for negligently destroying rights in the aircraft. Count II set forth a claim under the Tucker Act, 28 U.S.C. § 1346(a)(2), for an unlawful taking. On December 30, 1982, the government filed a “Motion To Dismiss Or In The Alternative Motion For Summary Judgment”, under Fed.R.Civ.P. 12(b)(6) and 56, respectively. A legal memorandum, affidavits with attachments, and a “Concise Statement Of Material Facts” accompanied the motion. The legal memorandum asserts a statutory exemption from suit, lack of jurisdiction under the Tort Claims Act because there is no tort under Florida law, and lack of jurisdiction under the Tucker Act because return of the aircraft to the Islands was a valid exercise of police power, not a taking. One affidavit stated that the Single Convention on Narcotic Drugs, 1961, is in force in the U.S. and was accompanied by a copy of the Convention and a list of treaties in force. Another affidavit stated that the U.S. is a party to the March 25, 1972 amendment to the 1961 Single Convention, and was accompanied by a copy of the Amendment and the Protocol. A third affidavit discussed the facts and effect of the forfeiture, and was accompanied by copies of the forfeiture order, an authorization certifying Berkeley Barron to receive the aircraft on behalf of the Islands’ government, and a copy of the applicable Islands’ laws. The U.S. mailed copies of all those documents to Milburn and Thompson on December 30, 1982. On January 24, 1983, Milburn and Thompson sought an enlargement of time until February 28, 1983, to respond to the government’s motion. The record discloses that that motion for enlargement was returned to counsel for Milburn and Thompson. On February 18, 1983, the government had requested that the court take judicial notice of the foreign government status of the Islands, its relationship with the United Kingdom, and application of the 1961 Single Convention and the 1972 Protocol. A statement of the Attorney General of the Islands was attached to the request. The record does not disclose whether that request was granted. Milburn and Thompson filed a 16-page response to the government’s original motion on March 4, 1983. On March 9, 1983, recognizing that their March 4 response was late (apparently on the assumption that the motion for enlargement until February 28 had been granted), Milburn and Thompson requested an additional five days to file that response. The record does not disclose the disposition of that request. On March 16, 1983, the government requested enlargement of time to file a reply. On March 21, 1983, Milburn and Thompson filed opposition to that request. On March 22, 1983, the court issued the appealed order granting the government’s motion to dismiss. No Memorandum Opinion, or other statement of reasons underlying the order, is of record. Issue Whether the district court erred in granting the motion to dismiss. OPINION (1) Nature of the Order Appealed From Failure to state a claim upon which relief can be granted is a defense raiseable by motion to dismiss, Fed.R. Civ.P. 12(b)(6), focusing on sufficiency of the complaint. Under the established test, a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Applying that test, we must hold that the naked complaint itself, setting forth ownership, seizure by the U.S. government, and possession by a foreign government, states a claim upon which relief might be granted. The complaint was not therefore subject to dismissal. If the district court’s action be taken at face value, i.e. as the grant of a motion to dismiss, its order would therefore have to be vacated. It is apparent that the district court necessarily looked beyond the complaint to acknowledge the forfeiture under the laws of a foreign government and its effect in light of applicable treaties. Indeed, the order stated “The Court has considered the record”. Consideration of matters beyond the complaint is improper in the context of a motion to dismiss but proper in the context of a motion for summary judgment. Rule 12(b) Ped.R.Civ.P. It has been held that the court converts a motion to dismiss into a motion for summary judgment by considering matters beyond the complaint. Hickey v. Arkla Ind. Inc., 615 F.2d 239 (5th Cir.1980). Hill v. Linahan, 697 F.2d 1032, 1034 (11th Cir.1983). In the present case, the government’s alternative motion for summary judgment provided a ready vehicle for such conversion and appears to have influenced what was ostensibly a grant of the motion to dismiss. We conclude, notwithstanding the order’s statement that the “Motion to Dismiss be, and the same is hereby GRANTED[, t]his cause is hereby DISMISSED with prejudice”, that the order appealed from was in fact a grant of the government’s motion for summary judgment and that this court is therefore required on review to apply the standards applicable to grants of summary judgment. See Schlang v. Heard, 691 F.2d 796, 797-98 (5th Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 2419, 77 L.Ed.2d 1310 (1983). (2) Procedure Among the standards applicable to motions for summary judgment is that of Rule 56(c), Fed.R.Civ.P., which provides in part that “[t]he motion shall be served at least 10 days before the time fixed for the hearing.” It is well settled in this circuit that Rule 56(c) does not require an oral hearing. “Rather, 10-day advance notice to the adverse party that the motion and all materials in support of or in opposition to the motion will be taken under advisement by the trial court as of a certain day satisfies the notice and hearing dictates of Rule 56.” Moore v. Florida, 703 F.2d 516, 519 (11th Cir.1983) (emphasis added), citing Barker v. Norman, 651 F.2d 1107, 1119 (5th Cir.1981); Capital Films Corp. v. Charles Fries Productions, 628 F.2d 387, 391-92 (5th Cir.1980); Kibort v. Hampton, 538 F.2d 90, 91 (5th Cir.1976). This circuit strictly enforces the 10-day notice requirement for all litigants. Moore, supra, at 520; Herron v. Beck, 693 F.2d 125, 126 (11th Cir.1982). The record in this case nowhere indicates that Milburn and Thompson were given a 10-day notice, or any notice, that the court would take the government’s motion under advisement as of a certain date. Milburn and Thompson filed a response to the government’s motion, but the record does not indicate whether the district court considered that response as part of the “record” or whether it treated it as not timely filed and disregarded it. Until the day before summary judgment was effectively granted, Milburn and Thompson were opposing the government’s request for enlargement of time to reply to that response. As above indicated, this court has established a “bright-line” test requiring 10-day advance notice that the court will take a motion for summary judgment under advisement as of a certain date. That requirement guarantees that the nonmoving party will have an opportunity to marshal its resources and focus its attention on rebutting the motion for summary judgment with every factual and legal argument available. Georgia Southern and Florida Railroad Co. v. Atlantic Coast Line Railroad Co., 373 F.2d 493, 498 (5th Cir.), cert. denied, 389 U.S. 851, 88 S.Ct. 69, 19 L.Ed.2d 120 (1967). Earlier cases enforcing the 10-day notice requirement involved fact patterns differing from that before us. In some, no motion for summary judgment had been filed. Hickey v. Arkla Industries, Inc., supra. In others, no opportunity for response to a motion for summary judgment had been provided. See, e.g., Hanson v. Polk County Land, Inc., 608 F.2d 129 (5th Cir.1979) (oral motion granted on day it was made). In still others, the litigants were pro se. See, e.g., Moore, supra. In the present case, Milburn and Thompson did respond to the motion for summary judgment and were represented by counsel. The elements of surprise and unfairness would thus appear to be absent. On the state of the present record, however, the district court having supplied no expression of reasons for its action, it cannot be said that Milburn and Thompson’s response had been considered before the district court acted to grant what it called the “Motion to Dismiss”. Moreover, that consideration of a motion for summary judgment, along with the response and supporting documents, has been deemed an adequate substitute for the “hearing” envisaged in Rule 56(c), Moore, supra, forms no basis in itself for also treating such consideration as a substitute for the 10-day notice requirement when, as here, the district court labeled its action a dismissal and gave no reasons in support of a presumed action on the summary judgment motion. In a supplemental brief filed after hearing, the government cites Local Rule 10 J, Kilbort v. Hampton, supra, and Howell v. Tanner, 650 F.2d 610 (5th Cir.1981) cert. denied, 456 U.S. 918, 102 S.Ct. 1775, 72 L.Ed.2d 178, for the proposition that Mil-burn and Thompson, having had an opportunity to submit materials in opposition, should be considered as having received “constructive notice” under Rule 56. The proposition cannot be here sustained, given the uncertainty on the record respecting the precise nature of and reasons for the district court’s action. In this regard, we note without comment on their effect assertions in Milburn and Thompson’s response to the government’s supplemental brief that the government’s affidavits pertained to legal issues, not fact, and that a material fact issue respecting FBI participation is set forth in the record. Reluctant as we are to add to the work of an already overburdened court, and expressing no opinion on the merits of the effective grant of summary judgment, we must require adherence to the procedural requirement for 10-day notice. Upon such notice, the district court is of course at liberty to grant or deny the government’s motion for summary judgment on the present record if it so elects. In that event, a memorandum reflecting the reasons for the grant or denial would facilitate review. Conclusion The district court erred in not giving Milburn and Thompson 10-day advance notice that it would take the government’s motion under advisement as of a certain date. We therefore vacate the order and remand the case for further proceedings. VACATED and REMANDED. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981 were adopted as precedents binding upon this court unless and until overruled by the Eleventh Circuit sitting en banc. . Local Rule 10 J provides in pertinent part: J. Motions For Summary Judgment 1. Motions for summary judgment pursuant to Rule 56, Fed.R.Civ.P., shall be in accordance with this rule except that the party opposing the motion shall have ten days after service of the motion in which to serve opposing papers. 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_9	12	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. FEDERAL TRADE COMMISSION v. MARY CARTER PAINT CO. et al. No. 15. Argued October 21, 1965. Decided November 8, 1965. Nathan Lewin argued the cause for petitioner. With him on the briefs were Solicitor General Marshall, Ralph S. Spritzer, James Mcl. Henderson and Charles C. Moore, Jr. David W. Peck argued the cause and filed a brief for respondents. Mr. Justice Brennan delivered the opinion of the Court. Respondent Mary Carter Paint Company manufactures and sells paint and related products. The Federal Trade Commission ordered respondent to cease and desist from the use of certain representations found by the Commission to be deceptive and in violation of § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 52 Stat. 111. 15 U. S. C. § 45 (1964 ed.). 60 F. T. C. 1830, 1845. The representations appeared in advertisements which stated in various ways that for every can of respondent’s paint purchased by a buyer, the respondent would give the buyer a “free” can of equal quality and quantity. The Court of Appeals for the Fifth Circuit set aside the Commission’s order. 333 F. 2d 654. We granted certiorari, 379 U. S. 957. We reverse. Although there is some ambiguity in the Commission’s opinion, we cannot say that its holding constituted a departure from Commission policy regarding the use of the commercially exploitable word “free.” Initial efforts to define the term in decisions were followed by “Guides Against Deceptive Pricing.” These informed businessmen that they might advertise an article as “free,” even though purchase of another article was required, so long as the terms of the offer were clearly stated, the price of the article required to be purchased was not increased, and its quality and quantity were not diminished. With specific reference to two-for-the-price-of-one offers, the Guides required that either the sales price for the two be “the advertiser’s usual and customary retail price for the single article in the recent, regular course of his business,” or where the advertiser has not previously sold the article, the price for two be the “usual and customary” price for one in the relevant trade areas. These, of course, were guides, not fixed rules as such, and were designed to inform businessmen of the factors which would guide Commission decision. Although Mary Carter seems to have attempted to tailor its offer to come within their terms, the Commission found that it failed; the offer complied in appearance only. The gist of the Commission’s reasoning is in the hearing examiner’s finding, which it adopted, that “the usual and customary retail price of each can of Mary Carter paint was not, and is not now, the price designated in the advertisement [$6.98] but was, and is now, substantially less than such price. The second can of paint was not, and is not now, ‘free,’ that is, was not, and is not now, given as a gift or gratuity. The offer is, on the contrary, an offer of two cans of paint for the price advertised as ór purporting to be the list price or customary and usual price of one can.” 60 F. T. C., at 1844. In sum, the Commission found that Mary Carter had no history of selling single cans of paint; it was marketing twins, and in allocating what is in fact the price of two cans to one can, yet calling one “free,” Mary Carter misrepresented. It is true that respondent was not permitted to show that the quality of its paint matched those paints which usually and customarily sell in the $6.98 range, or that purchasers of paint estimate quality by the price they are charged. If both claims were established, it is arguable that any deception was limited to a representation that Mary Carter has a usual and customary price for single cans of paint, when it has no such price. However, it is not for courts to say whether this violates the Act. “[T]he Commission is often in a better position than are courts to determine when a practice is ‘deceptive’ within the meaning of the Act.” Federal Trade Comm’n v. Colgate-Palmolive Co., 380 U. S. 374, 385. There was substantial evidence in the record to support the Commission’s finding; its determination that the practice here was deceptive was neither arbitrary nor clearly wrong. The Court of Appeals should have sustained it. Federal Trade Comm’n v. Colgate-Palmolive Co., supra; Carter Products, Inc. v. Federal Trade Comm’n, 323 F. 2d 523, 528. The Commission advises us in its brief that it believes it would be appropriate here “to remand the case to it for clarification of its order.” The judgment of the Court of Appeals is therefore reversed and the case is remanded to that court with directions to remand to the Commission for clarification of its order. It is so ordered. Mr. Justice Stewart took no part in the decision of this case. Hereinafter Mary Carter or respondent. Book-of-the-Month Club, Inc., 48 F. T. C. 1297 (1952); Walter J. Black, Inc., 50 F. T. C. 225 (1953); Puro Co., 50 F. T. C. 454 (1953); Book-of-the-Month Club, Inc., 50 F. T. C. 778 (1954); Ray S. Kalwajtys, 52 F. T. C. 721, enforced, 237 F. 2d 654 (1956). Guides Against Deceptive Pricing, Guide V, adopted October 2, 1958, 23 Fed. Reg. 7965; see also policy statement, December 3, 1953, 4 CCH Trade Reg. Rep. ¶ 40,210. For the current guide, Guide IV, effective January 8, 1964, see 29 Fed. Reg. 180. Question: What is the issue of the decision? 01. comity: civil rights 02. comity: criminal procedure 03. comity: First Amendment 04. comity: habeas corpus 05. comity: military 06. comity: obscenity 07. comity: privacy 08. comity: miscellaneous 09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals 10. assessment of costs or damages: as part of a court order 11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules 12. judicial review of administrative agency's or administrative official's actions and procedures 13. mootness (cf. standing to sue: live dispute) 14. venue 15. no merits: writ improvidently granted 16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit 17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals) 18. no merits: adequate non-federal grounds for decision 19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law) 20. no merits: miscellaneous 21. standing to sue: adversary parties 22. standing to sue: direct injury 23. standing to sue: legal injury 24. standing to sue: personal injury 25. standing to sue: justiciable question 26. standing to sue: live dispute 27. standing to sue: parens patriae standing 28. standing to sue: statutory standing 29. standing to sue: private or implied cause of action 30. standing to sue: taxpayer's suit 31. standing to sue: miscellaneous 32. judicial administration: jurisdiction or authority of federal district courts or territorial courts 33. judicial administration: jurisdiction or authority of federal courts of appeals 34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753) 35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court 36. judicial administration: jurisdiction or authority of the Court of Claims 37. judicial administration: Supreme Court's original jurisdiction 38. judicial administration: review of non-final order 39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision) 40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question) 41. judicial administration: ancillary or pendent jurisdiction 42. judicial administration: extraordinary relief (e.g., mandamus, injunction) 43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal) 44. judicial administration: resolution of circuit conflict, or conflict between or among other courts 45. judicial administration: objection to reason for denial of certiorari or appeal 46. judicial administration: collateral estoppel or res judicata 47. judicial administration: interpleader 48. judicial administration: untimely filing 49. judicial administration: Act of State doctrine 50. judicial administration: miscellaneous 51. Supreme Court's certiorari, writ of error, or appeals jurisdiction 52. miscellaneous judicial power, especially diversity jurisdiction Answer:
sc_respondent	105	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. ERICA P. JOHN FUND, INC., fka ARCHDIOCESE OF MILWAUKEE SUPPORTING FUND, INC. v. HALLIBURTON CO. et al. No. 09-1403. Argued April 25, 2011 — Decided June 6, 2011 Roberts, C. J., delivered the opinion for a unanimous Court. David Boies argued the cause for petitioner. With him on the briefs were Carl E. Goldfarb, Justin D. Fitzdam, Lewis Kahn, Neil Rothstein, and E. Lawrence Vincent, Jr. Nicole A. Saharsky argued the cause for the United States as amicus curiae in support of petitioner. With her on the brief were Acting Solicitor General Katyal, Deputy Solicitor General Stewart, Mark D. Cohn, Jacob H. Stillman, and Michael A. Conley. David D. Sterling argued the cause for respondents. With him on the brief were Aaron M. Streett, Evan A. Young, Robb L. Voyles, Jeffrey A. Lamken, Martin V. To-taro, R. Alan York, and Donald E. Godwin. Briefs of amici curiae urging reversal were filed for AARP et al. by Jay E. Sushelsky and Rex A. Staples; for Financial Economists by Ernest A. Young, William C. Fredericks, and Ann M. Lipton; for Law Professors by Jill E. Fisch, pro se; for the National Association of Shareholder and Consumer Attorneys by Michael J. Miarmi and Daniel P. Chiplock; for the National Conference on Public Employee Retirement Systems by Robert D. Mausner; for Public Justice, P. C., by Arthur Bryant, F. Paul Bland, Jr., and Lisa M. Mezzetti; and for 16 Public Pension Funds by David C. Frederick, Gregory W. Smith, Cynthia L. Collins, Michael A. Cardozo, Robert L. Pratter, Mr. Fredericks, Ms. Lipton, Jay W. Eisenhofer, Geoffrey C. Jarvis, Jason S. Cowart, and Richard A. Lockridge. Briefs of amici curiae urging affirmance were filed for the American Institute of Certified Public Accountants by Robert L. Byer and Richard I. Miller; for the American Insurance Association et al. by Mark A. Perry; for the Chamber of Commerce of the United States of America by Richard D. Bernstein and Robin S. Conrad; for DRI — The Voice of the Defense Bar by R. Matthew Cairns, Timothy R. McCormick, George Lucas Ashley, and Richard B. Phillips, Jr.; for Law Professors by John P. Elwood and David R. Woodcock, Jr.; for the Pharmaceutical Research and Manufacturers of America by Steven O. Kramer, John M. Landry, Jonathan D. Moss, and Robert J. Stumpf Jr.; for the Securities Industry and Financial Markets Association by Charles E. Davidow, John H. Longwell, Richard A Rosen, Walter Rieman, and Kevin M. Carroll; and for the Washington Legal Foundation by Daniel J. Popeo and Rickard A. Samp. Chief Justice Roberts delivered the opinion of the Court. To prevail on the merits in a private securities fraud action, investors must demonstrate that the defendant’s deceptive conduct caused their claimed economic loss. This requirement is commonly referred to as “loss causation.” The question presented in this case is whether securities fraud plaintiffs must also prove loss causation in order to obtain class certification. We hold that they need not. I Petitioner Erica P. John Fund, Inc. (EPJ Fund), is the lead plaintiff in a putative securities fraud class action filed against Halliburton Co. and one of its executives (collectively Halliburton). The suit was brought on behalf of all investors who purchased Halliburton common stock between June 3,1999, and December 7, 2001. EPJ Fund alleges that Halliburton made various misrepresentations designed to inflate its stock price, in violation of § 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5. See 48 Stat. 891, 15 U.S.C. §78j(b); 17 CFR §240.10b-5 (2010). The complaint asserts that Halliburton deliberately made false statements about (1) the scope of its potential liability in asbestos litigation, (2) its expected revenue from certain construction contracts, and (3) the benefits of its merger with another company. EPJ Fund contends that Halliburton later made a number of corrective disclosures that caused its stock price to drop and, consequently, investors to lose money. After defeating a motion to dismiss, EPJ Fund sought to have its proposed class certified pursuant to Federal Rule of Civil Procedure 23. The parties agreed, and the District Court held, that EPJ Fund satisfied the general requirements for class actions set out in Rule 23(a): The class was sufficiently numerous, there were common questions of law or fact, the claims of the representative parties were typical, and the representative parties would fairly and adequately protect the interests of the class. See App. to Pet. for Cert. 3a. The District Court also found that the action could proceed as a class action under Rule 23(b)(3), but for one problem: Circuit precedent required securities fraud plaintiffs to prove “loss causation” in order to obtain class certification. Id., at 4a, and n. 2 (citing Oscar Private Equity Invs. v. Allegiance Telecom, Inc., 487 F. 3d 261, 269 (CA5 2007)). As the District Court explained, loss causation is the “‘causal connection between the material misrepresentation and the [economic] loss’” suffered by investors. App. to Pet. for Cert. 5a, and n. 3 (quoting Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 342 (2005)). After reviewing the alleged misrepresentations and corrective disclosures, the District Court concluded that it could not certify the class in this case because EPJ Fund had “failed to establish loss causation with respect to any” of its claims. App. to Pet. for Cert. 54a. The court made clear, however, that absent “this stringent loss causation requirement,” it would have granted EPJ Fund’s certification request. Ibid. The Court of Appeals affirmed the denial of class certification. See 597 F. 3d 330 (CA5 2010). It confirmed that, “[i]n order to obtain class certification on its claims, [EPJ Fund] was required to prove loss causation, i. e., that the corrected truth of the former falsehoods actually caused the stock price to fall and resulted in the losses.” Id., at 334. Like the District Court, the Court of Appeals concluded that EPJ Fund had failed to meet the “requirements for proving loss causation at the class certification stage.” Id., at 344. We granted EPJ Fund’s petition for certiorari, 562 U. S. 1127 (2011), to resolve a conflict among the Circuits as to whether securities fraud plaintiffs must prove loss causation in order to obtain class certification. Compare 597 F. 3d, at 334 (case below), with In re Salomon Analyst Metromedia Litigation, 644 F. 3d 474, 483 (CA2 2008) (not requiring investors to prove loss causation at class certification stage); Schleicher v. Wendt, 618 F. 3d 679, 687 (CA7 2010) (same); In re DVI, Inc. Securities Litigation, 639 F. 3d 623, 636-637 (CA3 2011) (same; decided after certiorari was granted). II EPJ Fund contends that the Court of Appeals erred by requiring proof of loss causation for class certification. We agree. A As noted, the sole dispute here is whether EPJ Fund satisfied the prerequisites of Rule 23(b)(3). In order to certify a class under that Rule, a court must find “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. Rule Civ. Proc. 23(b)(3). Considering whether “questions of law or fact common to class members predominate” begins, of course, with the elements of the underlying cause of action. The elements of a private securities fraud claim based on violations of § 10(b) and Rule 10b-5 are: “ '(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.’” Matrixx Initiatives, Inc. v. Siracusano, ante, at 37-38 (quoting Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U. S. 148, 157 (2008)). Whether common questions of law or fact predominate in a securities fraud action often turns on the element of reliance. The courts below determined that EPJ Fund had to prove the separate element of loss causation in order to establish that reliance was capable of resolution on a common, class-wide basis. “Reliance by the plaintiff upon the defendant’s deceptive acts is an essential element of the § 10(b) private cause of action.” Id., at 159. This is because proof of reliance ensures that there is a proper “connection between a defendant’s misrepresentation and a plaintiff’s injury.” Basic Inc. v. Levinson, 485 U. S. 224, 243 (1988). The traditional (and most direct) way a plaintiff can demonstrate reliance is by showing that he was aware of a company’s statement and engaged in a relevant transaction — e. g., purchasing common stock — based on that specific misrepresentation. In that situation, the plaintiff plainly would have relied on the company’s deceptive conduct. A plaintiff unaware of the relevant statement, on the other hand, could not establish reliance on that basis. We recognized in Basic, however, that limiting proof of reliance in such a way “would place an unnecessarily unrealistic evidentiary burden on the Rule 10b-5 plaintiff who has traded on an impersonal market.” Id., at 245. We also observed that “[requiring proof of individualized reliance from each member of the proposed plaintiff class effectively would” prevent such plaintiffs “from proceeding with a class action, since individual issues” would “overwhelm[] the common ones.” Id., at 242. The Court in Basic sought to alleviate those related concerns by permitting plaintiffs to invoke a rebuttable presumption of reliance based on what is known as the “fraud-on-the-market” theory. According to that theory, “the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations.” Id., at 246. Because the market “transmits information to the investor in the processed form of a market price,” we can assume, the Court explained, that an investor relies on public misstatements whenever he “buys or sells stock at the price set by the market.” Id., at 244, 247 (internal quotation marks omitted); see also Stoneridge, supra, at 159; Dura Pharmaceuticals, 544 U. S., at 341-342. The Court also made clear that the presumption was just that, and could be rebutted by appropriate evidence. See Basic, supra, at 248. B It is undisputed that securities fraud plaintiffs must prove certain things in order to invoke Basic’s rebuttable presumption of reliance. It is common ground, for example, that plaintiffs must demonstrate that the alleged misrepresentations were publicly known (else how would the market take them into account?), that the stock traded in an efficient market, and that the relevant transaction took place “between the time the misrepresentations were made and the time the truth was revealed.” Basic, 485 U. S., at 248, n. 27; id., at 241-247; see also Stoneridge, supra, at 159. According to the Court of Appeals, EPJ Fund also had to establish loss causation at the certification stage to “trigger the fraud-on-the-market presumption.” 597 F. 3d, at 335 (internal quotation marks omitted); see ibid. (EPJ Fund must “establish a causal link between the alleged falsehoods and its losses in order to invoke the fraud-on-the-market presumption”). The court determined that, in order to invoke a rebuttable presumption of reliance, EPJ Fund needed to prove that the decline in Halliburton’s stock was “because of the correction to a prior misleading statement” and “that the subsequent loss could not otherwise be explained by some additional factors revealed then to the market.” Id., at 836 (emphasis deleted). This is the loss causation requirement as we have described it. See Dura Pharmaceuticals, supra, at 342; see also 15 U. S. C. § 78u-4(b)(4). The Court of Appeals’ requirement is not justified by Basic or its logic. To begin, we have never before mentioned loss causation as a precondition for invoking Basic’s rebuttable presumption of reliance. The term “loss causation” does not even appear in our Basic opinion. And for good reason: Loss causation addresses a matter different from whether an investor relied on a misrepresentation, presumptively or otherwise, when buying or selling a stock. We have referred to the element of reliance in a private Rule 10b-5 action as “transaction causation,” not loss causation. Dura Pharmaceuticals, supra, at 341-342 (citing Basic, supra, at 248-249). Consistent with that description, when considering whether a plaintiff has relied on a misrepresentation, we have typically focused on facts surrounding the investor’s decision to engage in the transaction. See Dura Pharmaceuticals, supra, at 342. Under Basic’s fraud-on-the-market doctrine, an investor presumptively relies on a defendant’s misrepresentation if that “information is reflected in [the] market price” of the stock at the time of the relevant transaction. See Basic, supra, at 247. Loss causation, by contrast, requires a plaintiff to show that a misrepresentation that affected the integrity of the market price also caused a subsequent economic loss. As we made clear in Dura Pharmaceuticals, the fact that a stock’s “price on the date of purchase was inflated because of [a] misrepresentation” does not necessarily mean that the misstatement is the cause of a later decline in value. 544 U. S., at 342 (emphasis deleted; internal quotation marks omitted). We observed that the drop could instead be the result of other intervening causes, such as “changed economic circumstances, changed investor expectations, new industry-specific or firm-specific facts, conditions, or other events.” Id., at 342-343. If one of those factors were responsible for the loss or part of it, a plaintiff would not be able to prove loss causation to that extent. This is true even if the investor purchased the stock at a distorted price, and thereby presumptively relied on the misrepresentation reflected in that price. According to the Court of Appeals, however, an inability to prove loss causation would prevent a plaintiff from invoking the rebuttable presumption of reliance. Such a rule contravenes Basic’s fundamental premise — that an investor presumptively relies on a misrepresentation so long as it was reflected in the market price at the time of his transaction. The fact that a subsequent loss may have been caused by factors other than the revelation of a misrepresentation has nothing to do with whether an investor relied on the misrepresentation in the first place, either directly or presumptively through the fraud-on-the-market theory. Loss causation has no logical connection to the facts necessary to establish the efficient market predicate to the fraud-on-the-market theory. The Court of Appeals erred by requiring EPJ Fund to show loss causation as a condition of obtaining class certification. C Halliburton concedes that securities fraud plaintiffs should not be required to prove loss causation in order to invoke Basic’s presumption of reliance or otherwise achieve class certification. See Tr. of Oral Arg. 26-29. Halliburton nonetheless defends the judgment below on the ground that the Court of Appeals did not actually require plaintiffs to prove-“loss causation” as we have used that term. See id., at 27- (“it’s not loss causation as this Court knows it in Dura)’): According to Halliburton, “loss causation” was merely “shorthand” for a different analysis. Brief for Respondents 18. The lower court’s actual inquiry, Halliburton insists, was whether EPJ Fund had demonstrated “price impact” — that is, whether the alleged misrepresentations affected the market price in the first place. See, e. g., id., at 16-19, 24-27, 50-51; see also Tr. of Oral Arg. 27 (stating that the Court of Appeals’ “test is simply price impact” and that EPJ Fund’s “only burden under the Fifth Circuit case law was to show price impact”). “Price impact” simply refers to the effect of a misrepresentation on a stock price. Halliburton’s theory is that if a misrepresentation does not affect market price, an investor cannot be said to have relied on the misrepresentation merely because he purchased stock at that price. If the price is unaffected by the fraud, the price does not reflect the fraud. We do not accept Halliburton’s wishful interpretation of the Court of Appeals’ opinion. As we have explained, loss causation is a familiar and distinct concept in securities law; it is riot price impact. While the opinion below may include some language consistent with a “price impact” approach, see, e. g., 597 F. 3d, at 336, we simply cannot ignore the Court of Appeals’ repeated and explicit references to “loss causation,” see id., at 334 (three times), 334, n. 2, 335 (twice), 335, n. 10 (twice), 335, n. 11, 336, 336, n. 19, 336, n. 20, 337, 338, 341 (twice), 341, n. 46, 342, n. 47, 343, 344 (three times). Whatever Halliburton thinks the Court of Appeals meant to say, what it said was loss causation: “[EPJ Fund] was required to prove loss causation, i. e., that the corrected truth of the former falsehoods actually caused the stock price to fall and resulted in the losses.” Id., at 334; see id., at 335 (“we require plaintiffs to establish loss causation in order to trigger the fraud-on-the-market presumption” (internal quotation marks omitted)). We take the Court of Appeals at its word. Based on those words, the decision below cannot stand. * * * Because we conclude the Court of Appeals erred by requiring EPJ Fund to prove loss causation at the certification stage, we need not, and do not, address any other question about Basic, its presumption, or how and when it may be rebutted. To the extent Halliburton has preserved any further arguments against class certification, they may be addressed in the first instance by the Court of Appeals on remand. The judgment of the Court of 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_interven	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 one or more individuals or groups sought to formally intervene in the appeals court consideration of the case. Cecil E. CRIDDLE, Appellant, v. Elliott L. RICHARDSON, Secretary of Health, Education and Welfare, Appellee. No. 71-1241. United States Court of Appeals, Fourth Circuit. Argued Oct. 5, 1971. Decided Oct. 14, 1971. Franklin W. Kern, Charleston, W. Va., for appellant. Robert M. Feinson, Atty., Dept, of Justice, Washington, D. C. (L. Patrick Gray, III, Asst. Atty. Gen., Kathryn H. Baldwin, Atty., Dept. of Justice and W. Warren Upton, U. S. Atty., on the brief), for appellee. Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges. PER CURIAM: Affirmed on the letter opinion of the District Judge, 334 F.Supp. 344. Affirmed. Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case? A. no intervenor in case B. intervenor = appellant C. intervenor = respondent D. yes, both appellant & respondent E. not applicable Answer:
songer_source	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. ALGONQUIN GAS TRANSMISSION COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Bay State Gas Company, et al., Intervenors. No. 85-2021. United States Court of Appeals, First Circuit. Argued June 4, 1986. Decided Jan. 13, 1987. John T. Ketcham with whom Joseph O. Fryxell and McGee & Ketcham, P.C., Washington, D.C., were on brief, for petitioner. John H. Conway with whom William H. Satterfield, General Counsel, Jerome M. Feit, Sol., and A. Karen Hill, Washington, D.C., were on brief, for respondent. Before BOWNES, Circuit Judge, BROWN, Senior Circuit Judge, and BREYER, Circuit Judge. Of the Fifth Circuit, sitting by designation. JOHN R. BROWN, Senior Circuit Judge. Petitioner Algonquin Gas Transmission Company (Algonquin) brings this petition for review, challenging an order by respondent Federal Energy Regulatory Commission. The Commission denied Algonquin’s request for a rate increase to its customers to recover $900,000 in expenses it incurred in an unsuccessful development of the Eascogas Liquified Natural Gas import project (Eascogas). See Algonquin Gas Transmission Co., 31 FERC II 61,221 (1985). The Commission properly applied its long-standing policy of denying recovery of costs for unsuccessful gas supply projects. Accordingly, we deny the petition for review. Algeria and the Energy Crisis Algonquin is a pipeline company that sells natural gas for resale in interstate commerce. Therefore, the rates Algonquin charges for those services are subject to the Commission’s jurisdiction under Sections 4 and 5 of the Natural Gas Act, 15 U.S.C. §§ 717c and 717d (1982). The question here is whether Algonquin may properly charge its customers under those provisions for a gas supply project that was never completed. Eascogas was a corporation created and jointly owned by Algonquin and other companies. Eascogas had proposed to import Liquified Natural Gas (LNG) from Algeria and deliver it to its own facilities in Staten Island, New York, and Providence, Rhode Island. From there, it would be stored, regasified, and sold to United States customers for subsequent resale in New Jersey and New England. Of the proposed import volume, twenty-eight percent was to be sold to Algonquin’s customers. The feasibility of the Eascogas project depended on the purchase of Algerian gas under low price contracts. These contracts, however, were contingent on the sponsors getting Commission approval by January 1, 1974, for at least the importation and sale aspects of the project. Absent that approval, the project could be terminated and the gas purchase contracts renegotiated at a much higher price. Based on its perception of a crisis in the world’s natural gas supply, the Commission granted to Eascogas (i) a limited authorization under Section 3 of the Natural Gas Act, 15 U.S.C. § 717b (1982), to import the LNG from Algeria, and (ii) a limited certificate of public convenience and necessity for the sale for resale of LNG. Eascogas LNG, Inc., et al, 50 FPC 2075, 2093-94 (1973). It conditioned final certification, however, on “further comprehensive and conclusive evaluations of all issues,” and made clear that it did not “endorse the economic feasibility of the entire Eascogas project.” 50 FPC at 2091. The Eascogas project was actually a series of projects: buying, importing and selling LNG; providing transport ships to bring the gas to terminal and storage facilities; building those facilities; and providing all the attendant distribution lines. When completed, Eascogas was to have imported, over a 22-year period, some 4.76 billion MMBtu’s of Algerian LNG. See Eascogas LNG, Inc. et al., 50 FPC 1921 (1973). Unfortunately, the Algerian Connection was not to be. The contract between Algonquin and Algeria included price escalation provisions pegged to world oil prices. When the price of oil later skyrocketed, the LNG project became economically impossible. In 1977, Algonquin terminated the project. No Eascogas LNG was ever imported or sold. The only “facility” actually built for the LNG import project was the excess capacity that was included in the LNG storage facilities built for Providence Gas. Providence in Providence As one small part of the massive import project, Algonquin negotiated an agreement with Providence Gas Company (Providence), a local distribution company in Rhode Island. Originally, Providence had planned to construct a large 348,000 barrel storage tank as part of its distribution system. Algonquin persuaded Providence to change its plans and allow Algonquin to build its own 600,000 barrel storage tank on the site. Algonquin’s primary aim was to acquire a deep-water LNG terminal site in Rhode Island for its baseload LNG import project. In return, Algonquin guaranteed Providence 348,000 barrels of storage capacity in the 600,000 barrel tank, reserved for and subject to Providence’s use. Algonquin agreed to build the facilities and provide the services for thirty years. Algonquin completed the storage tank facility in late 1973. Although Providence began storing its gas there, there was no Eascogas LNG to store. Algonquin prudently found alternative users for the excess capacity. Algonquin sought and received a temporary Commission authorization, valid for one year, allowing it to use that excess capacity for jurisdictional, i.e., interstate, storage services for other companies and to collect rates for such use. Algonquin LNG, Inc. & Algonquin Gas Transmission Co., 52 FPC 731 (1974). This was renewed on a yearly basis until 1982, when Algonquin received a ten-year authorization to use the excess capacity for jurisdictional storage services, Algonquin LNG, Inc. & Algonquin Gas Transmission Co., 19 FERC ¶ 61,265 (1982). It is this single storage operation that Algonquin claims has magically transformed the aborted Eascogas import project into a success, and thereby made Algonquin eligible for the recovery of its costs. Algonquin Goes to Washington In January 1980, Algonquin filed with the Commission, under Section 4 of the NGA, a request for $17.1 million per year rate increase for service to customers in New England, New York and New Jersey. Algonquin sought to recover approximately $1.5 million in Eascogas costs as “normal regulatory expenses” through an amortization allowance in its cost of service rate increase. Subsequently, this amount has been scaled down to $900,000. Algonquin gave only a general description of the expenses; it did not differentiate as to costs for the excess capacity for the Providence tank. Significantly, facility construction costs for the Providence storage tank were not included. In December 1981, the AU issued her decision on Algonquin’s rate case. 17 FERC 1163,063 (1981). Relying on the prevailing Commission policy, the AU disallowed Algonquin’s Eascogas claim on the grounds that (i) the costs incurred for an unsuccessful gas supply project could not be recovered from ratepayers, but must instead be borne by stockholders, and (ii) Algonquin had not, in any event, borne its burden of showing that it had spent the money on otherwise lawful expenses. 17 FERC at 65,300. In early 1983, the Commission announced its review of the AU’s decisions. 22 FERC H 61,279 (1983). Although it decided the other issues, it expressly postponed consideration of the Eascogas cost recovery question because it was at that time reviewing the same policy of cost recovery in the Natural Gas Pipeline Company case. Accordingly, it reserved judgment on the recovery issue. 22 FERC at 61,502. The Natural decision, issued in May 1984, reaffirmed existing policy: the company could not recover costs for gas supply projects that were abandoned before completion. Algonquin, however, ignored the plain meaning of Natural. In July 1984, Algonquin requested a remand to the AU. Seizing on what it contended were “new” standards announced in Natural, Algonquin demanded additional evidentiary proceedings to demonstrate how Eascogas met the new test. In May 1985, the Commission denied Algonquin’s motion for remand of the reserved cost recovery issue and instead affirmed the AU’s initial decision denying those costs. Algonquin Gas Transmission Co., 31 FERC ¶ 61,221 (1985). The Commission found that Algonquin’s import project did not progress sufficiently beyond the stage of preliminary survey to warrant application of any standard different from the long-established policy reiterated and applied in Natural. In addition, the Commission found that the status of the Providence storage facility was distinct from that of the Eascogas import project. Accordingly, Algonquin could not “bootstrap” the unsuccessful import project onto the much smaller successful storage facility to cast the entire effort as a successful one. On Algonquin’s petition for rehearing, the Commission found no dispute of the material facts and denied the request. Algonquin Gas Transmission Co., 33 FERC 1f 61,181 (1985). Thus, it comes to us. Discussion: Au Natural Algonquin appeals one issue in this case, and its name is Natural. In essence, Algonquin views the Natural decision as the evil spectre that has done in its case. It attacks Natural on three primary fronts. First, it contends that the Natural “test”— promulgated after Algonquin filed its case — is unacceptable revisionism of prior Commission precedent. For the Commission to apply the Natural test to Algonquin's case now, after the record has closed, violates due process. Second, if Natural can apply here, then Algonquin should certainly have the chance to show how, through its Providence storage tank, it now meets the new prudence test. And third, Algonquin contends that Natural’s disingenuous explanation of the disparate treatment of cost recovery for the electric and natural gas industries is hypocritical and unfair. Unfortunately for Algonquin, Natural is neither ground-breaking nor earth shaking. It is, however, an elegant restatement of the Commission’s traditional policy regarding cost recovery for abandoned natural gas projects. The rationale underlying the Natural decision can be neatly stated. As the District of Columbia Circuit aptly observed: The Natural Gas Act simply does not guarantee the shareholders of even a prudently managed utility that ratepayers can always be stuck with the bill for supply projects that turn out to be total failures, however praiseworthy the utility’s motives for undertaking those projects may have been____ In this case, the Commission in effect decided that the public interest in seeing that ratepayers do not pay for services not received was dispositive. Natural, 765 F.2d at 1163-64. We find this reasoning persuasive and applicable to Algonquin’s case. Algonquin’s Inartful Dodging Algonquin first attacks Natural as being revisionist. It contends the Commission has ignored or recast the inconsistencies in the Commission’s prior treatment of the cost recovery issue. It is true that the Commission, in rare cases, has given advanced guarantees to a gas pipeline, assuring it that it may recover some of its project costs even if the project later proves unsuccessful. See, e.g., Trailblazer Pipeline Co., 18 FERC ¶ 61,099 at 61,500-04 (1982); Ozark Gas Transmission System, 16 FERC H 61,099 at 61,-194-96 (1981), reh’g denied, 17 FERC ¶ 61,024 (1981). These cases, however, are inapposite to Algonquin’s situation. The Commission has granted prior guarantees only when a party has raised public policy considerations and then only when the Commission had considered beforehand whether the project would be in the public interest. Moreover, Algonquin relies on language from these two cases that questions whether the traditional policy — one of non-recovery — might be subject for a change in the future. Not surprisingly, Algonquin neglects to mention that these decisions were issued while the Commission was reexamining the very same policy of non-recovery which was reaffirmed by the later Natural decision. In context, both Ozark and Trailblazer recognize that the usual policy was one of non-recovery. Algonquin has relied on these cases for its claims that, before Natural, the Commission’s policy was different. Such reasoning fails for historical inaccuracy. These two cases were decided in the very different context of providing advanced guarantees that ratepayers would bear some risk of project failure. On appeal, Algonquin cannot complain that it was prejudiced by the Commission’s individualized treatment in Ozark or Trailblazer. After all, Algonquin never even received final certification or unconditional approval, much less an advanced guarantee. Algonquin’s contention that Natural announced a new test is equally unavailing. The Commission explicitly rejected the notion that it was adopting or implementing a new standard of cost recovery for early abandoned projects. 27 FERC at 61,380. Algonquin nevertheless maintains that the following language announces the elements of a new test: “[Whether] the projects were found to be speculative and uncertain, [and] remote in time____”27 FERC at 61,-379. This “test” is nothing of the sort. It is merely one description — an alternative characterization — of the historical traits of projects in which cost recovery was disallowed. Indeed, the remainder of that same sentence, which merely continues this description, concludes, “[and were] without benefit to ratepayers.” Id. The “new” test of “speculativeness” and “remoteness” is merely an amplification of the same old policy. The test remains that a policy must, in the eyes of the Commission, be “of benefit to ratepayers.” The more speculative or remote a project, the less likely it will, in the Commission’s view, benefit ratepayers. Algonquin’s analysis is rejected. Although the test for preliminarily abandoned projects remains unchanged, Natural did prospectively announce a prudence standard to be applied to projects that progressed beyond the preliminary stage before abandonment. The Commission stated, “[W]e do not foreclose reconsideration of the abandoned projects issue in future cases where projects have been carried beyond the stage of preliminary survey and investigation and where the pipeline’s investments are proportionately greater.” 27 FERC at 61,381 (emphasis added). The crucial criteria for this prospective “prudence standard” center on more advanced degrees of investigation and investment. Thus, projects that terminate at a “preliminary” stage will not likely merit Commission eligibility for consideration under the new prudence test. For early abandoned operations, therefore, Natural changes nothing: if the ratepayers never benefited, the costs cannot be recovered. The Little Tank That Could The engine in Algonquin’s drive to distinguish its case from Natural has been the storage tank in Providence. Algonquin so fervently urges the storage tank aspect of the Eascogas project for a very good reason: if it can “bootstrap” the abandoned Eascogas project onto the success of the storage facility, it may no longer be a “preliminary” project, and may be eligible for analysis under the more generous test of the recently expressed prudence standard. Algonquin’s argument runs along this line: The storage tank is successful. (It is commercially profitable, and even has a ten-year jurisdictional certificate from the Commission.) If the storage tank’s success can be attributed to the entire Eascogas project (for which the tank was originally built), then Eascogas can be treated as having progressed beyond the preliminary stage. If Eascogas went beyond the preliminary stage, it (i) can be distinguished from the strictures of Natural, and (ii) more importantly, can claim the benefit of the “prudence test” announced prospectively in Natural. The hoped-for-conclusion to this, of course, is that Algonquin — which has no chance to recover under the Natural preliminary abandonment test — has some chance to recover under a prudence test. However flawless may the logic be, the second premise, alas, is faulty. The Commission was entitled to determine that the storage tank’s success cannot be attributed to the entire Eascogas project. In the words of Commissioner Plumb, The Commission stated, The record demonstrates that Algonquin participated in what are, in effect, two distinct but related LNG projects, i.e., an LNG storage project and an LNG import project. In constructing the facilities needed to serve Providence Gas, Algonquin included excess tank capacity for eventual use in the LNG import project. But independent of the status of the LNG import project, Algonquin made a 30-year commitment to provide delivery and storage capacity for Providence Gas’ own LNG. Algonquin would have continued to provide capacity for Providence Gas even if the LNG import project had been constructed and put into operation. Further, termination of the import project did not affect this service, which Algonquin has provided to Providence Gas since May 1974. Under these circumstances, the existing LNG storage facilities used to serve Providence Gas are distinct from the Eascogas project. The only facility actually constructed for the Eascogas project was the excess capacity included in the Rhode Island site for future use for Algonquin’s own imported LNG. 31 FERC at 61,443. In other words, the bootstrap does not lift. Further, the Commission found that most of Algonquin’s expenditures on the Eascogas project were for preliminary types of activities such as preliminary studies, permits, applications, and the like. Factoring together these aspects, the Commission, concluding that the Eascogas project was terminated at a preliminary stage, found that Natural was controlling and the prudence standard unavailable. The Commission’s finding of two independent projects is supported by voluminous, substantial evidence. The level and type of activity involved in Eascogas by Algonquin has been, from all reasonable perspectives, purely preliminary. The fact that one element — 10% of the total estimated storage capacity — was taken to completion, and is now successfully operating in a manner utterly unrelated to Eascogas, is not decisive. Algonquin, cannot cantilever this “benefit to ratepayers” of the Providence storage tank onto all of the Eascogas project. Thus, as we review this proposed rate increase by Algonquin, we are mindful that, “the [circuit] court’s responsibility is not to supplant the Commission’s balance of [risk and benefit factors involved in rate setting] with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors.” Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S.Ct. 1344, 1373, 20 L.Ed.2d 312, 350 (1968). We agree with the Commission’s characterization of the Eascogas project as preliminary, and concur in its application of the Natural “of benefit to ratepayers” test. Apples, Oranges and FERC Algonquin’s third argument is that because the Commission permits electric utilities to recover costs under the Federal Power Act for cancelled electric power projects, the Commission must therefore also permit such cost recovery for failed/discontinued projects under the Natural Gas Act. This contention, that two different industries regulated under two different statutes must be treated exactly alike, is utterly unpersuasive. The Commission must preapprove jurisdictional (interstate) pipeline projects under § 7(c) of the NGA. Accordingly, it has the opportunity — if it chooses — to divide cancellation risks between project sponsors and ratepayers beforehand. See, e.g., Trailblazer Pipeline Co., 18 FERC ¶ 61,099 at 61,500-04 (1982). Under the FPA, however, the Commission has no analogous pri- or approval authority. Thus an electric utility cannot obtain an advance determination, as a pipeline can, of whether the risk of its failure can be shared with ratepayers. Given this lack of preliminary review power under the FPA, it is quite reasonable that the Commission has adopted separate policies of cost recovery for electric and natural gas projects. The disparate approaches to regulation are well-established. As the Commission declared in Natural, While Natural is correct in arguing that there is a lack of complete consistency between the Commission’s amortization policies under the Natural Gas and Federal Power Acts, that fact is not decisive. To approve amortization here would result in a direct transfer of risk and related cost from Natural’s shareholders to its ratepayers____ The Commission’s policy applicable to failed gas supply projects is of long standing and has been consistently applied in numerous cases. The Commission’s policy in this area is therefore well established. We have reviewed that policy in the course of deciding this case and have concluded that no charges are warranted. Natural, 27 FERC 1161,201 at 61,380. We cannot say it any better. Just One More Chance Following the announcement of the Natural opinion, Algonquin has steadfastly maintained that it is entitled to a new evidentiary hearing so that it may supplement the record by new facts or data that will show that Algonquin’s Eascogas project has met the asserted new prudence standard. Algonquin’s arguments are unpersuasive. Algonquin couched its arguments in terms of “unfairness” or failure of due process. These claims are unwarranted. First, Algonquin was clearly heard by the Commission. The Commission, in its order denying the cost recovery, fully responded to Algonquin’s claims of the interrelationship of the import and storage projects and the relation of Algonquin’s case to the Natural decision, and did so again on rehearing. That is sufficient. See, e.g., Pennsylvania Gas & Water Co. v. FPC, 463 F.2d 1242, 1251 (D.C.Cir.1972) (no hearing required when no material facts in dispute). Algonquin also complains about the Commission’s use of data from its earlier certification proceedings involving Eascogas. It contends that such facts are stale or have been taken under questionably broad “judicial notice.” For example, Algonquin claims that the Commission relied on inaccurate figures in finding the storage tank to be independent from the import project. While it may be true that Algonquin spent more money on the Providence gas storage project than originally planned, this, as the Commission found, cannot change the result that the Providence gas storage tank was a very small part of the massive Eascogas project. Thus, determining the precise amount that Algonquin actually spent in constructing the tank was not significant to the Commission’s conclusion. As discussed above, the success of the storage tank cannot, retroactively or otherwise, transform the status of the Eascogas import project. End of the (Pipeline We end as we began, approving the Commission’s decision: Algonquin’s Eascogas project falls squarely within the Commission’s longstanding precedent concerning disallowance of the costs of gas supply projects terminated at a preliminary stage. Our primary concern is the proper allocation of the risk of loss of such projects between the ratepayers and the shareholders. The Eascogas project was speculative and the potential benefit to ratepayers from LNG importation was remote, uncertain, and in the end, non-existent. Except for the costs associated with the converted storage facility, ratepayers should not bear, consistent with Natural, the costs of the Eascogas project. Because the costs of the converted facility are recoverable through Algonquin’s storage rate, they cannot be amortized in this proceeding. 31 FERC at 61,445. Accordingly, we deny Algonquin’s petition for review. DENIED. . In reviewing a pipeline’s application for a rate increase, the Commission must determine what the pipeline’s appropriate cost of service should be, assuming prudent management, for the rate must be sufficient to recover that cost. The cost of service, in turn, is the sum of the utility's operating expenses, depreciation expense, taxes and a reasonable return on the net value of the property devoted to public service. See generally, Garfield & Lovejoy, Public Utility Economics 56 (1964). . "MMBtu” is an abbreviation for one million Btu, and equals approximately one thousand cubic feet of gas. . Indeed, Algonquin has estimated that $47.6 million additional investment would have been required to bring the project up to speed for the original baseload LNG import project. Algonquin Application for Certificate of Public Convenience and Necessity, Exhibit K (filed Nov. 22, 1972, Dkt. No. CP73-139L . Algonquin did not seek rate base treatment of or a return on the expenses. See supra note 1. . There was testimony at the hearing on the rate increase that these costs included "legal fees, consultant fees, Algonquin's own costs, the airplane rides to Washington, hotel bills,” but Algonquin did not categorize or classify the expenditures in its presentation to the Commissioner: "It is not clear on this record what costs are included in the $1.5 million total, or what dockets were involved.” Algonquin Gas Transmission Co., 17 FERC ¶ 63,063 at 65,298 (1981). . See Natural Gas Pipeline Co., 27 FERC ¶ 61,201 (1984), reh’g denied, 28 FERC ¶ 61,020 (1984), aff'd, Natural Gas Pipeline Co. v. FERC, 765 F.2d 1155 (D.C.Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 794, 88 L.Ed.2d 771 (1986). . The Commission formulated the test as follows: A pipeline claiming amortization of costs based on a standard of prudence should be prepared to demonstrate that it (rather than the corporate parent or corporate affiliates) was (i) the source of funds expended, and (ii) that the project, if successful, would have benefited its customers and consumers. The pipeline should also be prepared to present detailed evidence concerning (iii) the degree of planning which went into the project as well as any assumptions which were made prior to commitment of funds. In addition, the pipeline should present evidence concerning (iv) the factors which led to abandonment or failure of any project and (v) actions taken to avoid or mitigate resulting losses. In summary, the record must contain evidence which would be sufficient to enable the Commission to determine the reasonableness and prudence of the projects and the pipeline’s actions concerning them. 27 FERC at 61,381. . See supra note 7. . Storage itself, recall, was but a small element in the grand scheme of import, processing and distribution. See text accompanying supra note 2. . The Natural decision is not unique. The Commission treats the two industries differently in other rate-setting matters as well. See, e.g., Cities of Aitken, et al. v. FERC, 704 F.2d 1254, 1257 n. 4 (D.C.Cir.1982); Arkansas Louisiana Gas Co. v. FERC, 654 F.2d 435, 439 n. 8 (5th Cir.1981). . Stated more graphically, the total construction cost of the one completed Providence tank is estimated to be $17,600,000. Algonquin has disputed this figure, saying that it eventually was "higher.” Regardless of how much "higher” it may be, the Eascogas gas project would have required an estimated (by Algonquin) $47.6 million just to bring the Providence facility up to speed as a baseload LNG import facility. The constructed tank was to be one of three. And the Providence facility was only to store 35% of the imported LNG. Sixty-five percent of the project’s gas was to be stored at the terminal facilities in Staten Island, New York. These facilities, of course, were never constructed. Thus, this lone, bare storage tank, outfitted with inadequate or non-existent dock facilities, unloading lines, send-out facilities, and transmission lines, cannot by any stretch of the imagination be regarded as having progressed "beyond a preliminary stage.” See text accompanying supra note 2. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
songer_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 The UNITED STATES of America, Appellee, v. Elijah COLEMAN, Appellant. No. 11781. United States Court of Appeals Third Circuit. Submitted Feb. 7, 1956. Decided Feb. 28, 1956. Elijah Coleman, pro se. Raymond Del Tufo, Jr., U. S. Atty., Everett T. Denning, Asst. U. S. Atty., Newark, N. J., for appellee. Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges. McLAUGHLIN, Circuit Judge. This is an appeal from the denial in the same case of a second motion under 28 U.S.C. § 2255. On May 23, 1952, appellant was convicted on all counts of a six count indictment charging him and others with the sale and concealment of heroin in violation of 21 U.S.C.A. § 174. He was sentenced to imprisonment for a period of ten years, to run concurrently with a sentence of five to seven years imposed February 7, 1951 by the Essex County Court of New Jersey. The state court conviction was for violation of state narcotic laws by reason of a heroin sale on October 14, 1950. That same sale was also the basis for the allegations of counts V and VI in the federal indictment. The first motion, above referred to, asked for vacation of the federal sentence because of alleged double jeopardy and because of the claim that in three instances a single offense was divided into two separate offenses for the purpose of imposing more severe and extensive punishment. This was denied by the district court by its opinion and order filed October 8, 1954. The defendant appealed but subsequently abandoned his appeal. The present motion, filed August 29, 1955, stated that appellant was illegally arrested, fraudulently indicted and convicted in the district court as a result of a conspiracy between federal narcotic agents, the assistant district attorney in charge of the case and government witnesses whereby illegal and fraudulent evidence was presented to the grand jury and perjured testimony given at the trial. That motion was denied by the district court opinion and order filed October 27. 1955. In his motion appellant alleged that two federal narcotic agents solicited one Hemingway, a government witness, to come to their office for the sole purpose of entering into a conspiracy with another agent to procure illegal evidence and testimony to secure a conviction of appellant and did secure such conviction; that it would be established on a proper hearing that the assistant district attorney and the agents established a method regarding deals, intimidation and promises to witnesses to manufacture evidence (in support of this last a portion of the testimony of a trial witness, Myrtle Moore, is quoted); that the offense charged agair«ct appellant was shown at the trial to have been committed by Miss Moore; that the district attorney took physical possession of illegal evidence, submitted it to the grand jury and thereby caused the indictment against appellant; that a conspiracy was entered into with government witness Hemingway to purchase narcotics from persons unknown to appellant in order to obtain an indictment of appellant and that Hemingway and two other government witnesses, Blair and Griggs, gave perjured testimony at the trial as the result of the conspiracy with the agents; that the assistant district attorney and one of the agents suppressed evidence which would have been sufficient to acquit appellant. There was no factual support offered for these allegations other than certain quoted excerpts from the trial transcript. The trial court in its opinion denying this motion without a hearing said: “At the time of the trial, as the record shows, the question of the existence of a conspiracy of the nature alleged by the petitioner was made the subject of testimony, heard at the insistence of the court, and in the presence of the jury. This was part of the evidence considered by the jury which by its verdict indicated disbelief in the existence of such a conspiracy. With this inferred conclusion, the court, which had the opportunity of observing the witnesses as they testified and weighing their credibility, was in complete accord. It may be well to note at this time that the defendant during his trial in this court testified that he had been convicted in the state court for violation of the State Narcotic Act [N.J.S. A. 24:18-1 et seq.], involving the sale which was the basis of the conviction in this court.” The trial court went on to say that “At the time of sentence, when reference was made to the continued protests of innocence of the defendant, the court pointed out, that in view of the testimony, in order to believe these protestations, it would have to believe that the defendant was the victim of a corrupt conspiracy between the Assistant United States Attorney and the government witnesses with attendant perjury on the part of the witnesses, which definitely this Court found no reason to believe.” It is worthy of note, as the trial judge commented, that despite the above facts, appellant in his first 2255 motion made no mention of the presently urged conspiracy. The district judge in denying the requested hearing under § 2255 held that appellant in asserting “a conspiracy to procure and use perjured testimony gives no indication of anything other than what was considered at his trial.” We have gone over the trial transcript carefully. We find nothing substantial now alleged by appellant, including all proper inferences, that was not before the court and jury at the trial and at the later sentencing of appellant. We think that the district judge, with full appreciation of the requirements of § 2255, rightly denied the hearing requested under this motion. The order of the district court will be 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_sentence	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" 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". Roland Carl SHELVY, Appellant, v. Salanda WHITFIELD, et al. No. 82-1921. United States Court of Appeals, District of Columbia Circuit. Calendared April 27, 1983. Submitted Sept. 1, 1983. Decided Sept. 16, 1983. Roland Carl Shelvy, on brief, pro se. Stanley S. Harris, U.S. Atty., Michael W. Farrell, John R. Fisher, and Daniel S. Seikaly, Asst. U.S. Attys., Washington, D.C., on brief, for appellees. A. Franklin Burgess, Jr., (appointed by this court) and Robert P. Mosteller, Washington, D.C., on brief, for amicus curiae urging reversal. Before GINSBURG and SCALIA, Circuit Judges, and BAZELON, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge GINSBURG. Dissenting opinion filed by Senior Circuit Judge BAZELON. GINSBURG, Circuit Judge: This case concerns the calculation of credit for presentence time spent in custody. Petitioning for a writ of habeas corpus, Roland Shelvy claimed that he should receive, in addition to the 233 days of credit allowed by the District of Columbia Department of Corrections, a further credit' of approximately six months. The district court denied Shelvy’s application; it held that the statute governing presentence credit, 18 U.S.C. § 3568, does not permit the relief Shelvy seeks. We affirm the district court’s judgment. Our holding rests on two interrelated conclusions. Both grounds of decision stem from a principal objective of Congress in enacting 18 U.S.C. § 3568: to “remove confusion,” “produce certainty,” and “prevent juggling” as to the date on which a sentence commences. See S.Rep. No. 803, 72d Cong., 1st Sess. 2 (1932); H.R. Rep. No. 960, 72d Cong., 1st Sess. 2 (1932). First, we conclude that credit for presentence time spent in custody against one or more eventual sentences continues until a defendant commences service of a sentence; but once a defendant actually commences service of a sentence, presentence credit ceases. Upon the prisoner’s reception at the institution for service of that sentence, or commitment to a place of detention to await transportation to the place at which the sentence shall be served, other pending charges do not extend the prisoner’s eligibility for credit for time spent in custody prior to the imposition of a sentence. Second, we conclude that a second sentence ordered to run concurrently with a sentence earlier imposed runs with the remainder of the earlier sentence. I. Shelvy was charged, held in presentence custody, and eventually sentenced in two separate proceedings. He was arrested on September 24, 1969, on charges of armed robbery, robbery, and two counts of assault with a dangerous weapon (case 1). He alleges that on the same day, he was also arrested and charged with murder (case 2). Shelvy has remained incarcerated since his arrest. Case 1 was tried before a jury on March 11, 1970. Shelvy was found guilty on three counts. On May 15,1970, he was sentenced to imprisonment for six to eighteen years for armed robbery, and two to six years on each of the assault counts. These sentences were ordered to run concurrently. In case 2, Shelvy entered a plea of guilty to second degree murder on October 13, 1970. On November 20, 1970, he was sentenced to the maximum term authorized for this offense, imprisonment for fifteen years to life. The district judge ordered the sentence to run concurrently with any sentence then being served. Shelvy has received credit against both sentences for the period between September 24,1969, the date of his arrest, and May 15, 1970, the date he was sentenced in case 1. Despite commencement of the case 1 sentence on the latter date, Shelvy claims he is entitled to presentence credit in case 2 for the period from May 15, 1970, until November 20, 1970, the date on which the case 2 sentence commenced. In effect, he urges that we hold both sentencing dates irrelevant, and direct that he receive credit against the longer sentence — the one in case 2 — for every day he has been incarcerated since his arrest on September 24, 1969. II. The statute controlling credit for time spent in custody prior to the imposition of sentence provides, in relevant part: The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.... No sentence shall prescribe any other method of computing the term. 18 U.S.C. § 3568 (emphasis added). The district court held that the underscored language foreclosed Shelvy’s claim: [F]rom May 15[, 1970,] on, the petitioner was incarcerated pursuant to his sentence in case 1; this being so, [he] was not spending [that time] in custody “in connection with the offense in [case 2]” and, hence, he is not entitled to credit for this time served. Shelvy v. Whitfield, No. 82-1555, slip op. at 2 (D.D.C. July 30, 1982). We recognize the force of the district court’s position. However, Shelvy’s case has an anomalous aspect: If the two sentence dates had been interchanged — the case 2 (murder) sentence imposed on May 15, 1970, the case 1 (robbery) sentence on November 20, 1970 — it appears that Shelvy would have been entitled to the six months credit he seeks. He would have received credit for presentence custody up to May 15, 1970, and for service of the case 2 sentence thereafter. In this hypothetical situation, there would have been no need to answer the question whether credit should have accrued against the case 1 sentence during the period May 15, 1970, to November 20,1970, for the absence of credit would have had no effect on the total period of incarceration; the case 1 sentence, six to eighteen years, even with no credit gained from May 15,1970, to November 20,1970, if ordered to run concurrently with the case 2 sentence, would have fit entirely within the latter, fifteen years to life, sentence. Shelvy appeared pro se in the district court and on appeal. Because we believed he might have an arguable point, we invited the Public Defender Service to assist the court by submitting a brief, amicus curiae. That brief cogently points out that because Shelvy’s sentence in case 1 is totally subsumed within the considerably longer, concurrently running sentence in case 2, credit against the case 1 sentence, for all practical purposes, is meaningless. Credit against that sentence alone cannot shorten the time Shelvy will spend in prison. III. We are impelled to agree with the district court that Shelvy is not entitled to any additional “credit for time [he spent] in custody prior to the imposition of sentence.” See 18 U.S.C. § 3568 (caption) (emphasis added). First, the section in question fixes the time when a sentence commences. Beyond debate, Shelvy commenced serving a sentence on May 15, 1970. Next, the section provides for presentence credit. Congress has consistently described this provision as aimed at credit for confinement before and during trial, and not at credit for any post-sentence custody. See S.Rep. No. 750, 89th Cong., 1st Sess. 21 (1965) (amendments extending section 3568 to nonbailable offenses and lifting its limitation to statutes with minimum mandatory sentences were designed to “guarantee[] credit for pretrial custody”); H.R.Rep. No. 2058, 86th Cong., 2d Sess. 1 (1960) (purpose of amendment to section 3568 “is to make clear that the defendant receives credit for time spent in custody not only prior to trial but during the trial,” and “also to exclude credit for time spent in custody after sentence, such as while on appeal”). Once a sentence is imposed and becomes operative for the period of time at issue, it is artificial to maintain that custody nonetheless retains its preconviction character, that it remains conditional, unsettled, still dependent upon (and therefore “in connection with”) a trial court’s eventual disposition of other charges not yet adjudicated. Moreover, were we to read 18 U.S.C. § 3568 as authorizing presentence credit for time a prisoner serves after the imposition of a first sentence, we would alter the instruction a trial judge signals when he or she orders that the sentence imposed shall run concurrently with any sentence then “being served.” For example, assume a trial judge imposed a one-year sentence on a defendant and ordered it to run concurrently with a one-year sentence then being served, eight months of which had elapsed. We have little doubt that the sentencing judge in such a case would envision a second sentence outlasting the first by eight months. Precedent in point confirms that a federal sentence made concurrent with a sentence already being served does not operate in a “fully concurrent” manner. Rather, the second sentence runs together with the remainder of the one then being served. See United States v. Flores, 616 F.2d 840, 841 (5th Cir.1980); Wilson v. Henderson, 468 F.2d 582, 584 (5th Cir.1972). In his pro se brief, Shelvy correctly points out that the presentence credit for which 18 U.S.C. § 3568 provides is responsive to the situation of a person held in custody because of inability to make bail. See Brief for Appellant at 2. The current statute covers such cases and more. It applies to incarceration prior to the imposition of any sentence where the person is charged with a nonbailable offense or is not released pre-sentence for some other reason, for example, where a person is initially detained as a juvenile but later tried as an adult. Indeed, if the statute limited credit to days spent in custody because of inability to make bail, it appears that Shelvy would not have an arguable ease even for the credit accorded him. Jail records indicate that, while Shelvy was held in lieu of a money bond in case 1, the armed robbery case, he was held without bond in case 2, the murder case. See Brief for Amicus Curiae at 1. We therefore find unpersuasive the central assertion in Shelvy’s pro se brief that he was the victim of invidious discrimination because of his poverty. The brief for amicus curiae suggests that we could grant “meaningful credit against the total period of [Shelvy’s] confinement,” and preclude the order of the two sentences from affecting the total time he serves, by “interrupting] the running of [the sentence in case 1]” and “making it commence six months later on November 20,1970.” Brief for Amicus Curiae at 20. But the opening statement in 18 U.S.C. § 3568 provides: The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The concluding sentence of the section states: No sentence shall prescribe any other method of computing the term. Setting out the relevant legislative history, this court observed that Congress dominantly intended to provide “a firm date of sentence commencement.” United States v. Liddy, 510 F.2d 669, 674 (D.C.Cir.1974) (en banc), cert. denied, 420 U.S. 980, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1975). The court in Liddy recognized authority in the district court to interrupt a sentence once it has commenced and thereby postpone the termination date of the sentence “beyond the time the sentence would have ended had it not been interrupted.” Id. We confront no such situation here. Neither district court order nor statute authorizes the interruption amicus suggests. We therefore have no warrant to treat the case 1 sentence as commencing six months after Shelvy was committed to a place of detention to await transportation to the penitentiary designated for service of that sentence. Nor, in face of specific congressional instruction to the contrary, are we at liberty to regard the case 2 sentence as “commenc[ing] to run from some date prior to the sentence or some date before [Shelvy] actually commence[d] [its] service.” See S.Rep. No. 803, supra, at 2; H.R.Rep. No. 960, supra, at 2. Moreover, even if we were to ignore the concern of Congress embodied in 18 U.S.C. § 3568 to “prevent juggling with sentences,” id., and entertain the notion that “a sentencing judge has the discretion to provide that a sentence is to be retroactively concurrent with another sentence which has already been served,” it is evident that “no such order was made in this case.” See United States ex rel. Del Genio v. United States Bureau of Prisons, 644 F.2d 585, 589 (7th Cir.1980), cert, denied, 449 U.S. 1084, 101 S.Ct. 870, 66 L.Ed.2d 808 (1981) (rejecting petitioner’s argument that a later sentence, ordered to run concurrently with an earlier one, should be treated as having commenced prior to the date it was imposed). Shelvy’s case 2 sentence, as pronounced, runs concurrently with the case 1 sentence then being served. No statute authorizes us to amend that direction so that the sentence in case 2 not only runs concurrently with the remainder of the sentence in case 1, but is shortened by the time already elapsed on the prior sentence. The anomaly that Shelvy would have been entitled to consideration for release six months earlier had he been sentenced on the case 2 charge first is no more curious than the one suggested by respondents: had Shelvy been charged in case 2 the day after imposition of the sentence in case 1, none of his presentence detention would have served to reduce the period of his incarceration; he would not have received effective credit even for the 233 days between arrest and first sentencing. Conclusion We conclude that Shelvy is entitled to presentence credit only for days of incarceration during which he was not serving any sentence. He has received full credit for those days. We can accord him no more without straining the meaning of 18 U.S.C. § 3568 and departing from judicial understanding and precedent on what a “sentence to run concurrently with an earlier sentence” means. Therefore, the judgment from which this appeal has been taken is Affirmed. . Citing Preiser v. Rodriguez, 411 U.S. 475, 486-88, 93 S.Ct. 1827, 1834-35, 36 L.Ed.2d 439 (1973), the district court noted that although granting Shelvy’s application would not result in his immediate release from confinement, a habeas corpus petition appears to be an available means to seek the requested relief. . Respondents stated that prison records indicated October 31, 1969, as the date of Shelvy’s commitment on the murder charge. The district court assumed, for purposes of ruling on Shelvy’s petition, that commitments in both cases occurred on September 24, 1969. See Shelvy v. Whitfield, No. 82-1555, slip op. at 1 n. 1 (D.D.C. July 30, 1982). We make the same assumption. . Murder in the second degree, defined in D.C. Code § 22-2403, is punishable by imprisonment “for life or not less than 20 years.” D.C. Code § 22-2404. However, D.C.Code § 24-203, the Indeterminate Sentence Act, provides that a maximum sentence of life imprisonment must be accompanied by a minimum sentence not to exceed 15 years imprisonment. Thus Shelvy’s term was 15 years to life. Had the trial judge sentenced Shelvy to the lightest sentence permissible under § 22-2404, i.e., 20 years, § 24-203 would have made him eligible for parole in 6% years. See Frady v. United States Bureau of Prisons, 570 F.2d 1027, 1028-29 (D.C.Cir.1978) (quoting H.R.Rep. No. 677, 87th Cong., 1st Sess. 2 (1961)). . The position that presentence credit does not include time spent serving another sentence is announced in instructions for administrative determinations of jail-time credit under 18 U.S.C. § 3568, see United States Department of Justice, Federal Prison System Program Statement No. 5880.24, para. 5.b.(2) (Sept. 5, 1979), and is reflected in prior court rulings. See O’Connor v. Rodgers, Habeas Corpus 233-68, aff’d, No. 22,853 (D.C.Cir. June 24, 1970) (noting that Chief Judge Bazelon would remand the case for clarification of the trial judge’s intention in the imposition of the concurrent sentences). We do not attribute precedential value to this court’s unpublished disposition. See D.C.Cir.R. 8(f). We simply note, in view of the dissent’s reading of the statute, that on a prior occasion, after full consideration, the court determined that the issue occasioned no need for an opinion. See D.C.Cir.R. 13(c). . In Flores, the defendant was sentenced, after conviction, to ten years on one drug offense on February 12,1976, and, after a plea of guilty, to ten years on another drug offense on December 13, 1976, the latter sentence “ ‘to run concurrently with the sentence imposed [in the first case].’ ” 616 F.2d at 841. He sought, unsuccessfully, to vacate the second sentence, urging that he had entered the guilty plea on the misapprehension that the sentence would be considered to begin and terminate on the same dates as the prior sentence, and that his counsel had labored under the same misapprehension. The court held this erroneous construction of the meaning of a concurrent sentence insufficient to invalidate the plea bargain. In Wilson, the defendant sought credit for 155 days actually served on a sentence imposed by the District Court for the District of Columbia against a longer sentence subsequently imposed by the District Court for the Southern District of New York and ordered to run concurrently with the District of Columbia sentence the defendant was then serving. Credit was denied on the ground that a sentence cannot commence prior to the date it was pronounced even if it is to be served concurrently with a sentence already being served. 468 F.2d at 584. As in the case before us, the defendant in Wilson was awarded credit against both sentences for the period he spent in federal custody (204 days) prior to the first, District of Columbia, sentence. Id. at 583. . See S.Rep. No. 750, 89th Cong., 1st Sess. 21 (1965) (nonbailable offenses); Federal Bail Procedures: Hearings on S. 2838, S. 2839, S. 2840 Before the Subcomm. on Constitutional Rights and the Subcomm. on Improvements in Judicial Machinery of the Comm, on the Judiciary, 88th Cong., 2d Sess. 135-36 (1964) (juveniles-tried-as-adults and nonbailable offenses). . At our request, amicus curiae’s brief centered on this question: “Given the fact that Mr. Shelvy would have received the six months credit he now seeks had the sentencing dates been reversed, does 18 U.S.C. § 3568 require a different result because the sentence in the robbery case came first?” Brief for Amicus Curiae at 6. The brief is a careful, comprehensive development of the arguments in support of six months additional credit for Shelvy. The dissent considers “essential” further supplemental briefing and argument. Dissent at 448. Yet it cites not a single decision that even squints in support of a different outcome in Shelvy’s case. . No doubt “judicial power,” see dissent at 448, existed to render Shelvy eligible for parole earlier. The sentencing judge in case 2 could have shortened Shelvy’s second degree murder sentence. See supra note 3. Instead, in face of contemporaneous interpretation of 18 U.S.C. § 3568, see supra note 4, and extant administrative procedures for computing jail-time credit, he sentenced Shelvy to the statutory maximum. . Brief for Respondent-Appellees at 6. . The days would have been credited against the sentence in case 1, but there would have been no presentence credit at all against the considerably longer sentence in case 2. Question: Did the court conclude that some penalty, excluding the death penalty, was improperly imposed? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
sc_petitioner	028	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. SECRETARY OF PUBLIC WELFARE OF PENNSYLVANIA et al. v. INSTITUTIONALIZED JUVENILES et al. No. 77-1715. Argued October 10, 1978 — Decided June 20, 1979 BurgeR, C. J., delivered the opinion of the Court, in which White, BlacemuN, Powell, and RehNQUist, JJ., joined. Stewart, J., filed a statement concurring in the judgment, post, p. 650. BreNNAN, J., filed an opinion concurring in part and dissenting in part, in which Marshall and SteveNS, JJ., joined, post, p. 650. Norman J. Watkins, Deputy Attorney General of Pennsylvania, argued the cause for appellants. With him on the briefs were Robert B. Hoffman, Deputy Attorney General, and Gerald Gornish, Acting Attorney General. David Ferleger argued the cause and filed a brief for appellees. Briefs of amici curiae urging affirmance were filed by S. Shepherd Tate, John H. Lashly, Russell E. Webb, and Joseph F. Vargyas for the American Bar Association; and by Ronald M. Soskin for the National Center for Law and the Handicapped et al. Mr. Chief Justice Burger delivered the opinion of the Court. This appeal raises issues similar to those decided in Parham v. J. R., ante, p. 584, as to what process is due when the parents or guardian of a child seek state institutional mental health care. I This is the second time we have reviewed a District Court’s judgment that Pennsylvania’s procedures for the voluntary admission of mentally ill and mentally retarded children to a state hospital are unconstitutional. In the earlier suit, five children who were between the ages of 15 and 18 challenged the 1966 statute pursuant to which they had been admitted to Haverford State Hospital. Pa. Stat. Ann., Tit. 50, §§ 4402, 4403 (Purdon 1969). After a three-judge District Court, with one judge dissenting, declared the statute unconstitutional, Bartley v. Kremens, 402 F. Supp. 1039 (ED Pa. 1975), the Pennsylvania Legislature amended its mental health code with regard to the mentally ill. The amendments placed adolescents over the age of 14 in essentially the same position as adults for purposes of a voluntary admission. Mental Health Procedures Act of 1976, § 201, Pa. Stat. Ann., Tit. 50, § 7201 (Purdon Supp. 1978). Under the new statute, the named plaintiffs could obtain their requested releases from the state hospitals independently of the constitutionality of the 1966 statute, and we therefore held that the claims of the named plaintiffs were moot. Kremens v. Bartley, 431 U. S. 119, 129 (1977). We then remanded the case to the District Court for “reconsideration of the class definition, exclusion of those whose claims are moot, and substitution of class representatives with live claims.” Id., at 135. On remand, 12 new plaintiffs, appellees here, were named to represent classes of mentally ill and mentally retarded children. Nine of the children were younger than 14 and constituted all of those who had been admitted to the State’s hospitals for the mentally ill in accordance with the 1976 Act at the time the suit was brought; three other children represented a class of patients who were 18 and younger and who had been or would be admitted to a state hospital for the mentally retarded under the 1966 Act and 1973 regulations implementing that Act. All 12 children had been admitted on the application of parents or someone standing in loco parentis with state approval after an independent medical examination. The suit was filed against several named defendants, the Pennsylvania Secretary of Public Welfare and the directors of three state owned and operated facilities. The District Court, however, certified a defendant class that consisted of “ 'directors of all mental health and mental retardation facilities in Pennsylvania which are subject to regulation by the defendant Secretary of Public Welfare.’ ” 459 F. Supp. 30, 40 n. 37 (ED Pa. 1978). Representatives of the nine mentally ill children sought a declaration that the admission procedures embodied in § 201 of the Pennsylvania Mental Health Procedures Act of 1976, Pa. Stat. Ann., Tit. 50, § 7201 (Purdon Supp. 1978), which subsequently have been expanded by regulations promulgated by the Secretary of Public Welfare, 8 Pa. Bull. 2432 et seq. (1978), violated their procedural due process rights and requested the court to issue an injunction against the statute’s future enforcement. The three mentally retarded children presented the same claims as to §§ 402 and 403 of the Mental Health and Mental Retardation Act of 1966, Pa. Stat. Ann., Tit. 50, §§ 4402 and 4403 (Purdon 1969), and the regulations promulgated thereunder. The District Court certified two subclasses of plaintiffs under Fed. Rule Civ. Proc. 23 and held that the statutes challenged by each subclass were unconstitutional. It held that the State’s procedures were insufficient to satisfy the Due Process Clause of the Fourteenth Amendment. The District Court’s analysis in this case was similar to that used by the District Court in J. L. v. Parham, 412 F. Supp. 112 (MD Ga. 1976), reversed and remanded sub nom. Parham v. J. R., ante, p. 584. The court in this case concluded that these children had a constitutionally protected liberty interest that could not be “waived” by their parents. This conclusion, coupled with the perceived fallibility of psychiatric diagnosis, led the court to hold that only a formal adversary hearing could suffice to protect the children in appellees’ class from being needlessly confined in mental hospitals. To further protect the children’s interests, the court concluded that the following procedures were required before any child could be admitted voluntarily to a mental hospital: 1) 48-hour notice prior to any hearing; 2) legal counsel “during all significant stages of the commitment process”; 3) the child’s presence at all commitment hearings; 4) a finding by an impartial tribunal based on clear and convincing evidence that the child required institutional treatment; 5) a probable-cause determination within 72 hours after admission to a hospital; 6) a full hearing, including the right to confront and cross-examine witnesses, within two weeks from the date of the initial admission. App. 1097a-1098a. Appellants, all of the defendants before the District Court, appealed the judgment. We noted probable jurisdiction, and consolidated the case with Parham v. J. R., ante, p. 584. 437 U. S. 902. II (a) Much of what we .said in Parham v. J. R. applies with equal force to this case. The liberty rights and interests of the appellee children, the prerogatives, responsibilities, and interests of the parents, and the obligations and interests of the State are the same. Our holding as to what process is due in Parham controls here, particularly: “We conclude .that the risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a ‘neutral factfinder’ to determine whether the statutory requirements for admission are satisfied. . . . That inquiry must carefully probe the child’s background using all available sources, including, but not limited to, parents, schools, and other social agencies. Of course, the review must also include an interview with the child. It is necessary that the decision-maker have the authority to refuse to admit any child who does not satisfy the medical standards for admission. Finally, it is necessary that the child’s continuing need for commitment be reviewed periodically by a similarly independent procedure.” Parham v. J. R., ante, at 606-607. The only issue is whether Pennsylvania’s procedures for the voluntary commitment of children comply with these requirements. (b) Unlike in Parham v. J. R., where the statute being challenged was general and thus the procedures for admission were evaluated hospital by hospital, the statute and regulations in Pennsylvania are specific. Our focus here is on the codified procedures declared unconstitutional by the District Court. The Mental Health Procedures Act of 1976 and regulations promulgated by the Secretary describe the procedures for the voluntary admission for inpatient treatment of mentally ill children. Section 201 of the Act provides that “a parent, guardian, or person standing in loco parentis to a child less than 14 years of age” may apply for a voluntary examination and treatment for the child. After the child receives an examination and is provided with temporary treatment, the hospital must formulate “an individualized treatment plan ... by a treatment team.” Within 72 hours the treatment team is required to determine whether inpatient treatment is “necessary” and why. Pa. Stat. Ann., Tit. 50, § 7205 (Purdon Supp. 1978). The hospital must inform the child and his parents both of the necessity for institutional treatment and of the nature of the proposed treatment. Ibid. Regulations promulgated under the 1976 Act provide that each child shall be' re-examined and his or her treatment plan reviewed not less than once every 30 days. See § 7100.108 (a), 8 Pa. Bull. 2436 (1978). The regulations also permit a child to object to the treatment plan and thereby obtain a review by a mental health professional independent of the treatment team. The findings of this person are reported directly to the director of the hospital who has the power and the obligation to release any child who no longer needs institutional treatment. The statute indeed provides three methods for release of a child under the age of 14 from a mental hospital. First, the child’s parents or guardian may effect his release at will. Pa. Stat. Ann., Tit. 50, § 7206 (b) (Purdon Supp. 1978). Second, “any responsible party” may petition the juvenile court if the person believes that treatment in a less restrictive setting would be in the best interests of the child. Ibid. If such a petition is filed, an attorney is appointed to represent the child’s interests and a hearing is held within 10 days to determine “what inpatient treatment, if any, is in the minor’s best interest.” Ibid. Finally, the director of the hospital may release any child whenever institutional treatment is no longer medically indicated. § 7206 (c). The Mental Health and Mental Retardation Act of 1966 regulates the voluntary admission for inpatient hospital habilitation of the mentally retarded. The admission process has been expanded significantly by regulations promulgated in 1973 by Pennsylvania’s Secretary of Public Welfare. 3 Pa. Bull. 1840 (1973). Unlike the procedure for the mentally ill, a hospital is not permitted to admit a mentally retarded child based solely on the application of a parent or guardian. All children must be referred by a physician and each referral must be accompanied by a medical or psychological evalution. In addition, the director of the institution must make an independent examination of each child, and if he disagrees with the recommendation of the referring physician as to whether hospital care is “required,” the child must be discharged. Mentally retarded children or anyone acting on their behalf may petition for a writ of habeas corpus to challenge the sufficiency or legality of the “proceedings leading to commitment.” Pa. Stat. Ann., Tit. 50, § 4426 (Purdon 1969). Any child older than 13 who is admitted to a hospital must have his rights explained to him and must be informed that a status report on his condition will be provided periodically. The older child is also permitted to object, either orally or in writing, to his hospitalization. After such objection, the director of the facility, if he feels that hospitalization is still necessary, must institute an involuntary commitment proceeding under § 406 of the Act, Pa. Stat. Ann., Tit. 50, §4406 (Purdon 1969). What the statute and regulations do not make clear is how the hospital staff decides that inpatient care is required for a child. The director of Haverford State Hospital for the mentally ill was the sole witness called by either side to testify about the decisionmaking process at a state hospital. She described the process as follows: “[T]here is an initial examination made by the psychiatrist, and is so designated as an admission note on the hospital record. Subsequently, for all adolescents on the Adolescent Service at Haverford State Hospital, there are routine studies done, such as an electroencephalogram, a neurological examination, a medical examination, and a complete battery of psychological tests and school evaluation, as well as a psychiatric evaluation. When all their data has been compiled, an entire staff conference is held, which is called a new case conference, at which point the complete case is re-examined and it is decided whether or not the child needs hospitalization, and at that same time, as well, an adequate treatment course is planned.” App. 112a. In addition to the physical and mental examinations that are conducted for each child within the institutions, the staff compiles a substantial “pre-admission background information” file on each child. After the child is admitted, there is a periodic review of the child’s condition by the staff. His status is reviewed by a different social worker at least every 30 days. Since the State .places a great deal of emphasis on family therapy, the parents or guardians are met with weekly to discuss the child’s case. Id., at 113a. We are satisfied that these procedures comport with the due process requirements set out earlier. No child is admitted without at least one and often more psychiatric examinations by an independent team of mental health professionals whose sole concern under the statute is whether the child needs and can benefit from institutional care. The treatment team not only interviews the child and parents but also compiles a full background history from all available sources. If the treatment team concludes that institutional care is not in the child’s best interest, it must refuse the child’s admission. Finally, every child’s condition is reviewed at least every 30 days. This program meets the criteria of our holding in Parham. Accordingly, the judgment of the District Court that Pennsylvania’s statutes and regulations are unconstitutional is reversed, and the case is remanded for further proceedings consistent with this opinion. Reversed and remanded. For the reasons stated in his opinion concurring in the judgment in Parham v. J. R., ante, p. 621, Mr. Justice Stewart concurs in the judgment. Appellants argue that the State’s regulation of admission to private hospitals is insufficient to constitute state action for purposes of the Due Process Clause of the Fourteenth Amendment. They, however, did not contest the District Court’s definition of the defendant class, which included directors of both public and private facilities. In light of our holding that Pennsylvania’s procedures comport with due process, we do not decide whether the District Court correctly found state action. Section 201 provides in part: “A parent, guardian, or person standing in loco parentis to a child less than 14 years of age may subject such child to examination and treatment under this act, and in so doing shall be deemed to be acting for the child.” Section 402 provides: “(a) Application for voluntary admission to a facility for examination, treatment and care may be made by: “(2) A parent, guardian or individual standing in loco parentis to the person to be admitted, if such person is eighteen years of age or younger. “ (b) When an application is made, the director of the facility shall cause an examination to be made. If it is determined that the person named in the application is in need of care or observation, he may be admitted.” Section 403 provides: “(a) Application for voluntary commitment to a facility for examination, treatment and care may be made by: “(2) A parent, guardian or individual standing in loco parentis to the person to be admitted, if such person is eighteen years of age or younger. “(b) The application shall be in writing, signed by the applicant in the presence of at least one witness. When an application is made, the director of the facility shall causé an examination to be made. If it is determined that the person named in the application is in need of care or observation, he shall be committed for a period not to exceed thirty days.” The 1973 regulations provide in part: “1. . . . [M]entally retarded juveniles may be referred by either a pediatrician, or general physician or psychologist; “2. This referral must be accomplished by a psychiatric evaluation and that report must indicate with specificity the reasons that the person requires institutional care; however, a medical or psychological evaluation may accompany the referral of a mentally retarded juvenile; “3. The Director of the Institution . . . shall have conducted an independent examination of the proposed juvenile, and if his results disagree with the professional’s opinion, the Director . . . shall discharge the juvenile; “5. Within 24 hours after the juvenile’s admission, every youth who is at least 13 years of age must receive written notification (which he signs) explaining his rights indicating that he will be given a status report periodically of his condition; that he can contact by telephone or by mail his parents or the person who requested his admission; and that he will be furnished with the number of counsel . . . that he can call for representation . . . ; “6. In the event that a juvenile whose chronological age is 13 or older objects (either orally or in writing) to remaining in the Institution, the Director . . . if he feels it is necessary for the youth to remain, may continue the institutionalization for two business days during which time he shall notify the applicant and the referral unit so that either party may institute a 460 [involuntary commitment] proceeding. ...” 3 Pa. Bull. 1840 (1973). One subclass consisted of “all juveniles under the age of fourteen who are subject to inpatient treatment under Article II of the 1976 Act.” 459 F. Supp., at 41. The other subclass was “mentally retarded juveniles age eighteen or younger.” Id., at 42. Appellants argue that the District Court failed to heed our admonition in remanding this case previously that it should “ ‘stop, look, and listen’ before certifying a class in order to adjudicate constitutional claims.” Kremens v. Bartley, 431 U. S. 119, 135 (1977). Given our disposition of the merits of this appeal, we need not decide whether these subclasses satisfy the requirements of Fed. Rule Civ. Proc. 23. Judge Broderick dissented from the judgment of the majority. In his view, the majority “has prescribed ‘an overdose’ of due process.” 459 F. Supp., at 53. Appellees argue that not much weight should be accorded to these files because the record does not make clear whether they were used in making the admission decision. The District Court, however, found that “virtually all of the information was received by the admitting facilities prior to admission.” 459 F. Supp., at 36 n. 15. The court did acknowledge that it was not -clear to what extent the information was used, but nonetheless admitted all of the records into evidence. Since it was available, we, like the District Court, assume the information served as a factual basis for some portions of the diagnoses of the children at the time of their admission to the 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_subevid	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." 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". Ora P. HALL v. Arthur S. FLEMMING, Secretary of Health, Education and Welfare. No. 14300. United States Court of Appeals Sixth Circuit. April 13, 1961. Ora F. Duval, Olive Hill, Ky., for appellant. John W. Morgan, Asst. U. S. Atty., Lexington, Ky. (Jean L. Auxier, U. S. Atty., Lexington, Ky., on the brief), for appellee. Before MILLER, Chief Judge, and McALLISTER and WEICK, Circuit Judges. McALLISTER, Circuit Judge. This is an appeal from an order of the District Court dismissing appellant’s claim for benefits under Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g). Appellant had filed his application for disability insurance benefits, which had been determined adversely to him by the Bureau of Old Age and Survivors Insurance of the Social Security Administration. After such adverse determination, appellant had requested a hearing before a Referee, who, in a comprehensive opinion, ruled that he was not entitled to such benefits. Upon request for review of the decision of the Referee, the Appeals Council of the Department of Health, Education and Welfare, affirmed the findings and conclusions of the Referee. The District Court, on review of the decision of the Appeals Council, acting for the Secretary, found that appellant, because of the condition of his health, was “under severe handicap, and a failure to succeed in this cause will apparently make of him a dependent upon charity until he reaches a sufficient age to draw social benefits under other laws. But the findings of the Referee are supported by substantial evidence and are therefore conclusive. He has found that the claimant has not sustained the burden of proving that he is suffering from a physical impairment which could be expected to result in death, or to be of long continued or indefinite duration, or that he is not capable of engaging in any substantial, gainful activity.” The court further held that “there is ample proof to sustain the findings of the Referee that this claimant is a man of intelligence and some education and has the ability to perform services and duties other than those of his accustomed occupation.” However, in the determination of this appeal,’ the controlling questions are: (1) what can appellant do; and (2) what employment opportunities are there for-a man who can do only what appellant can do? In a similar case, Kerner v. Flemming, 2 Cir., 283 F.2d 916, 921, the court held, after reviewing the record, that there was no substantial evidence that would enable the Secretary to make any reasonable determination whether the applicant was unable to engage in substantial and gainful activity. In its opinion, the court said: “Such a determination requires resolution of two issues — what can applicant do, and what employment opportunities are there for a man who can do only what applicant can do? Mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available. * * * Here there was insufficient evidence on either issue * * *.” We have before us no substantial evidence as to what appellant can do, or as to his employment opportunities, and, further, we have no reasoned determination and findings on these controlling issues. Accordingly, the order appealed from is reversed with directions that the case be remanded to the Secretary of Health, Education and Welfare in order that further evidence be taken and findings be made on the above-mentioned issues. Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_usc2sect	101	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 17. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". MCA, INC.; Cass County Music Company; Kortchmar Music; April Music, Inc.; BGO Music, Inc.; Sailor Music; Hudmar Publishing Company, Inc.; Coolwell Music; Granite Music Corporation; Brockman Music; Stygian Songs; and Controversy Music, Plaintiffs-Appellees, v. Norma PARKS and Irene Parks, Defendants-Appellants. No. 85-5651. United States Court of Appeals, Sixth Circuit. July 24, 1986. Jerry D. Winchester (argued), Corbin, Ky., for defendants-appellants. Kimberly K. Greene, Wyatt, Tarrant & Combs, Louisville, Ky., Edgar A. Zingman (argued), for plaintiffs-appellees. Before CONTIE and RYAN, Circuit Judges, and BROWN, Senior Circuit Judge. BAILEY BROWN, Senior Circuit Judge. This appeal of a judgment of copyright infringement asks the musical question whether it is as true in 1986 as it was in 1942 that “we ... just need a nickel to feed that jukebox Saturday night”? The district court answered this question in the negative, finding that the cost of operating a jukebox that is the sole source of music in a roller-skating rink now also includes the obligation of the defendants-owners of that skating rink to pay royalties to copyright holders whose songs are played on “that jukebox.” Concluding that the district court correctly construed the copyright statute in finding a violation, we affirm. I Plaintiffs-appellees in this consolidated action are owners of song copyrights and members of the American Society of Composers, Authors and Publishers (ASCAP). The copyright owners sued defendants-appellants Norma, John and Irene Parks (the Parks), the owners and operators of Gerry’s Roller Skating Rink in Corbin, Kentucky (Gerry’s), for infringement of rights granted them under the United States Copyright Act, 17 U.S.C. §§ 101 et seq. (1982), as amended by Pub.L. 94-553, Title I, § 101, 90 Stat. 2541 (Oct. 19, 1976). The facts are not in dispute, and the district court ruled in favor of the copyright owners on cross-motions for summary judgment. The parties agree that the record is sufficiently complete to permit resolution of this case on their respective motions. Gerry's is located inside a building that also houses a concession stand, video games and the allegedly offending jukebox, which contains recordings of, inter alia, the copyright owners’ copyrighted songs. Patrons pay no admission fee to enter the Parks’s building, where they are free to play the video games or jukebox, purchase food or drink, or simply listen to the music. Upon entering the building, patrons may turn right to the concession area (where the jukebox and video games also are located), or left to the booth where skating tickets are sold. The skating area is immediately ahead of the entrance, through a set of double doors. Patrons who wish to skate pay a $2.00 “skating fee,” plus an additional $.50 if they rent skates. Anyone in the building may, by depositing coins, play the jukebox, which is owned and operated by an outside organization. Music emanates from the jukebox itself, as well as from six large speakers that are inside and surround the skating area. Music from the jukebox provides the only accompaniment to skaters, there being no organ or other source of music. Thus, unless someone plays the jukebox, the skaters skate without music, and in her deposition, Norma Parks indicated that on some nights this occurs. After consideration of the parties’ briefs, depositions and affidavits, the court determined that Gerry’s did not qualify for the so-called jukebox exemption from Copyright Act liability. 17 U.S.C. § 116 (1982). This section relieves “the proprietor of the establishment in which the public [jukebox] performance takes place,” 17 U.S.C. § 116(a)(1), from liability for copyright infringement as long as the jukebox “is located in an establishment making no direct or indirect charge for admission.” 17 U.S.C. § 116(e)(1)(B). The court based its decision on the legal conclusion that “the charging of a skating fee constitutes a direct or indirect charge for admission,” reasoning that the use of the jukebox was “closely related” to skating, the “primary purpose” of the establishment. MCA, Inc. v. Parks, Nos. 83-163/84-185, mem. op. (E.D.Ky. June 13, 1985). The district court therefore enjoined the Parks from further use of the jukebox in their establishment until they obtained an ASCAP license and began paying royalties to these plaintiffs. The court also awarded damages ($3,000.00) for past infringements and attorney’s fees ($4,457.50) and costs in connection with the litigation. On appeal, the Parks contend that the district court erred in concluding that their establishment is not entitled to the jukebox exemption, and also challenge the award of attorney’s fees. II The principal issue on appeal is the validity of the district court’s conclusion that Gerry’s is “an establishment making ... a direct or indirect charge for admission.” 17 U.S.C. § 116(e)(1)(B). Since none of the facts are in dispute, the question is one simply of law. The legislative history to the 1976 amendments to the Copyright Act reveals that § 116 represented a compromise between the previous statute and the legislation preferred by ASCAP and its members. The prior statute contained an absolute exemption from copyright liability arising from any use of a jukebox, “unless a fee is charged for admission to the place where such reproduction or rendition occurs.” H.R.Rep. No. 94-1476, 94th Cong., 2d Sess. 1, 112, reprinted in 1976 U.S. Code Cong. & Ad. News 5659, 5727. The House report accompanying the 1976 amendments indicates that “[n]o provision of the present law has attracted more heated denunciations and controversy than the so-called jukebox exemption.” Id. Accordingly, the amended statute retained the exemption only for proprietors of establishments where jukeboxes are played (not for the owners of the jukeboxes), and then only if no “direct or indirect” admission fee is charged. Under current law then, the owner of the jukebox in question is liable for license fees and royalties to the appropriate ASCAP members; but the Parks would be liable only if their “skating fee” were regarded as a direct or indirect .admission charge. The legislative history provides only a little guidance into what Congress meant by “direct or indirect charge for admission.” Explaining the language, the committee report indicates that the exemption would not cover “establishments making cover or minimum charges, and those ‘clubs’ open to the public but requiring ‘membership fees’ for admission.” Id. at 5729. This explanation appears clearly to exempt most establishments such as diners and restaurants, barber and beauty shops, stores and shopping malls, and video and pinball arcades. Such establishments almost never charge “direct” admission fees, and it would render the exemption meaningless to describe the food, gaming or cosmetology charges as “indirect” admission fees. The copyright owners concede as much in their brief. Equally clearly, the exemption would not cover taverns, nightclubs, social clubs or restaurants if they required patrons to pay an admission fee at the door, or if they otherwise added an entertainment “cover” or “minimum” charge to food and drink bills. At least one district court case has imposed jukebox liability on this kind of establishment. Blendingwell Music, Inc. v. Moor-Law, Inc., 612 F.Supp. 474 (D.Del.1985) (owner of bar featuring live music held liable for jukebox use on nights when admission was charged to hear the live band). The case is easily distinguished, because there is no question that the bar in Moor-Law was charging a direct admission fee; however, in the case sub judice, we are not concerned with construction of the “direct” admission charge language in the statute. The copyright owners’ arguments notwithstanding, the “skating fee” at issue plainly is not a “direct” charge for admission, since it is uncontested that persons are admitted to Gerry’s without payment of the fee. Our task, rather, is to devise a standard for measuring when a fee— charged by an establishment that concededly admits persons without charge — should be treated as an “indirect charge for admission.” In formulating this standard, we lack the benefit of prior judicial decisions. We are guided by the legislative history, which clearly indicates that a “cover” or “minimum” entertainment charge at a tavern or restaurant amounts to an indirect admission charge. Likewise, we agree with the Parks that, as the copyright owners concede, charges for food and drink in an ordinary bar or restaurant would not amount to an indirect admission charge. Such an expansive reading of the statute would effectively eliminate the jukebox exemption, a result plainly not contemplated by Congress. The standard for identifying an “indirect” admission charge must take account of these two extremes. If the purported admission fee is more clearly analogous to a simple charge for food or drink, then it will not impose copyright liability on the proprietor of the establishment; however, if the charge is more properly characterized as a cover or minimum, the jukebox exemption will not apply. In other words, when an establishment arguably exempt under § 116 charges for an item, be it food, drink or some service, that charge will constitute an “indirect charge for admission” only if the nexus between the jukebox music and the purported “admission” charge is immediate and direct, so close as to be in the nature of a “cover” or “minimum” entertainment charge. Determining which of these extremes— mere food or drink, or a “cover” charge— the “skating fee” charged by Gerry’s most closely resembles is no easy task. Like a restaurant, Gerry’s provides, for a charge, an item desired by its patrons, who pay nothing to enter the establishment. However, the copyright owners argue, and the district court concluded, that this case can be distinguished from the restaurant case because here, the music is “closely related” to the business of the skating rink. The argument must go: while consumers choose to patronize a restaurant or bar based on the cost and quality of food and drink, service and ambiance, consumers generally choose to patronize a skating rink to skate to music. This argument would not necessarily be in disagreement with Justice Holmes’s observation, made in construing an earlier incarnation of the Copyright Act, that patrons of a restaurant often make their choice seeking “a repast in surroundings that to people having limited powers of conversation, or disliking the rival noise, give a luxurious pleasure not to be had from eating a silent meal.” Herbert v. Shanley, 242 U.S. 591, 595, 37 S.Ct. 232, 233, 61 L.Ed. 511 (1917). But as we have already observed, when a court seeks to characterize a fee as an indirect admission charge, the nexus between the purported “admission charge” and the music on the jukebox must be closer than a simple interest in listening to music while dining or drinking. We are satisfied that such a nexus exists in this case. Although there was testimony that on occasion, patrons at Gerry’s have skated without the accompaniment of music from the jukebox, skating at a skating rink, like dancing at a dance hall, is an activity traditionally and usually associated with musical accompaniment. It seems undeniable that it was the well-known preference of skaters for such accompaniment that led the Parks to position all six of the jukebox’s external speakers immediately around the perimeter of the skating area, with only the speaker that is a physical part of the jukebox itself even arguably aimed at providing music outside the skating area. Under these circumstances, we think the nexus between the music and skating at Gerry’s may not be “essential,” as argued by the copyright owners; but it is far closer than any similar relationship between music and dining at a tavern or restaurant. There is little doubt that the absence of jukebox music would more dissuade the average roller skater from attending Gerry’s than the average restaurant goer from visiting a similarly silent eating establishment. Because the close nexus between the skating charge and the music at Gerry’s so nearly resembles that between a “cover” charge and the entertainment “covered” by that charge, we hold that the “skating fee” charged by Gerry’s constitutes an “indirect charge for admission” within the meaning of the statute. It follows that the district court correctly found the Parks to be in violation of the Copyright Act. III The Parks also argue that even if the judgment against them stands, they should not have been required to pay over $4,000.00 in attorney’s fees. The Copyright Act permits a trial court, in its discretion, to award attorney’s fees to the prevailing party. 17 U.S.C. § 505 (1982). While the statute on its face imposes no additional requirements, the Ninth Circuit has held that attorney’s fees may be awarded under the Copyright Act only upon a finding of bad faith. Cooling Systems and Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 498 (9th Cir.1985). Other circuits are not in agreement, and the Eleventh Circuit has specifically held that the plain statutory language imposes no such requirement. Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 832 (11th Cir.1982). See also Lieb v. Topstone Industries, Inc., 788 F.2d 151, 154-56 (3d Cir.1986) (noting circuit split on necessity of finding bad faith, and suggesting that district courts exercise “an even-handed approach,” relying on several factors including frivolousness, motivation, objective unreasonableness, and the need in particular circumstances for compensation and deterrence). The proper standard for an award of an attorney’s fees is not, however, before us in this case. At oral argument, counsel for the Parks was repeatedly questioned as to whether he contended that some “bad faith” .standard should be adopted by this court: The Court: I guess we can glean from what you’re saying that they [copyright owners] have to show bad faith or something more than just that you’re wrong in order to get fees? Counsel: No, they can show we’re wrong____ **** The Court: Well then are you conceding that if they win on the merits, they also win on the attorney’s fees? Counsel: They should be entitled to some, sort of attorney’s fees. The Court: Alright, that solves that. **** Counsel for the Parks further conceded that he did not challenge the reasonableness of the awards in this case. Rather, counsel admitted that his only quarrel was with the statutory scheme, which, he argued, might permit copyright owners, by repeated visits to an offending establishment, to aggregate a large number of “violations,” and thereby increase their damages and attorney’s fees for essentially the same violation. However, counsel did not even contend that such compounding of violations occurred in this case. Thus, we need not consider whether such action would call for some narrowing of the attorney’s fees portion of the statute. In light of these concessions from the Parks’s counsel, we need not, and expressly do not, reach the question of the proper standard to be applied by a trial court in awarding attorney's fees under § 505 of the Copyright Act. While the case might otherwise have presented an appropriate vehicle for an answer to this question, our adversary system of justice forbids us to resolve issues not contested by the parties. Since the Parks have conceded the propriety of this award of attorney’s fees if the trial court correctly found a violation; and since we have already determined that the trial court was correct in this regard, we hold that the award of attorney’s fees was proper under the circumstances of this case. Accordingly, we Affirm the judgment of the district court in all respects. . A1 Stillman and Paul McGrane, "Jukebox Saturday Night” (1942). . ASCAP is a performing rights licensing organization that licenses users of copyrighted music and distributes royalties to its members, including these plaintiffs. See generally Broad cast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 4-6, 99 S.Ct. 1551, 1554-55, 60 L.Ed.2d 1 (1979) (describing licensing and royalty procedures). . The original complaint named as defendants only John and Norma Parks. On April 20, 1984, the plaintiffs filed an amended complaint adding Irene Parks as a party defendant. Claims against defendant John Parks were dismissed on September 11, 1984. . Although the Fourth Circuit, in an unpublished decision, has imposed copyright liability on essentially identical facts, BGO Music, Inc., v. Pee Bee Investments, Inc., 785 F.2d 304 (4th Cir.1986), aff’g No. 83-1166, slip op. (S.D.W.Va. Feb. 1, 1985), the rules of our court discourage us from treating that decision as authority. See Sixth Circuit Rule 24(b). Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 17? Answer with a number. Answer:
songer_procedur	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. V. E. B. CARL ZEISS, JENA, Steelmasters, Inc. and Ercona Corporation, Appellants, v. Ramsey CLARK, Acting Attorney General of the United States, Appellee. No. 20351. United States Court of Appeals District of Columbia Circuit. Argued Feb. 14, 1967. Decided May 8, 1967. Certiorari Denied Nov. 13, 1967. See 88 S.Ct. 334. Mr. Harry I. Rand, Washington, D. C., for appellants. Mr. John C. Eldridge, Atty., Dept, of Justice, with whom Messrs. David G. Bress, U. S. Atty., and Alan S. Rosenthal, Atty., Dept, of Justice, were on the brief, for appellee. Before Edgerton, Senior Circuit Judge, and Burger and Wright, Circuit Judges. JUDGMENT PER CURIAM. This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel. On consideration whereof it is ordered and adjudged by this Court that the order of the District Court, appealed from in this cause be, and it is hereby, affirmed for the reasons stated in Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, D.D.C., 40 F.R.D. 318 (1966). Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_r_bus	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. Harold HARRIS, Plaintiff-Appellee, v. John TURNER, Warden of the Utah State Prison, Defendant-Appellant. No. 72-1300. United States Court of Appeals, Tenth Circuit. Sept. 21, 1972. H. Don Sharp, Ogden, Utah, for plaintiff-appellee. David R. Irvine, Asst. Atty. Gen., State of Utah (Vernon B. Romney, Atty. Gen., and David S. Young, Chief Asst. Atty. Gen., State of Utah, on the brief), for defendant-appellant. Before PHILLIPS, SETH and McWILLIAMS, Circuit Judges. ORIE L. PHILLIPS, Circuit Judge. Harris was charged with and tried and found guilty of the offenses of rape, robbery, and second degree kidnapping in the District Court of Weber County, Utah. Judgments of conviction were entered and sentences imposed, which were affirmed by the Supreme Court of Utah. The person against whom such offenses were alleged to have been committed was Kathleen Edwards. About 7 a. m. on December 29, 1970, the police force of Roy, Utah, arrested Harris and Richard Burney at the Travelodge Motel in Ogden, Utah. About 8:-30 a. m. of that day, and before Harris had been charged with such offenses by complaint or other formal charge, the police conducted a lineup of seven persons, including Harris, who was No. 3, and Burney, who was No. 6. We will refer to the police lineup more fully in our statement of facts. Harris filed an application for a writ of habeas corpus in the United States District Court for the District of Utah, Central Division, predicated on the alleged grounds that he was not provided with counsel by the state at the time the lineup was conducted, and that the lineup was improper in that it was unduly suggestive of his identity. He raised those questions in a motion to suppress that he asserted was evidence of his identification by Miss Edwards at the preliminary hearing and at his trial. We will later show she did not identify him, in the ordinary sense of the term “identify,” either at the preliminary hearing or the trial. The state court accorded him a full and fair hearing and denied his motion. He also filed an application for a writ of habeas corpus in the state court, which was denied without a hearing. Chief Judge Ritter, of the United States District Court for the District of Utah, granted the writ and discharged Harris from custody. The Warden has appealed. Chief Judge Ritter made the following findings of fact and conclusions of law: “FINDINGS OF FACT “1. This matter is properly before this Court. “2. That the plaintiff was not properly advised of his right to have counsel present at the line-up held immediately after his arrest. “3. That the plaintiff did not effectively waive his right to counsel at said line-up. “Based on the foregoing Findings of Fact, the Court hereby makes the following : “CONCLUSIONS OF LAW “1. This Court has jurisdiction over the parties to- this action. “2. The plaintiff was denied his Constitutional rights under the Sixth Amendment to the United States Constitution, to wit at the line-up held immediately after plaintiff’s arrest. “3. Based on the denial of plaintiff’s Constitutional rights at a critical stage of the proceedings against him, he should be released from custody forthwith.” Except with respect to the issue as to whether Harris waived his right to counsel during the lineup, the facts are not in dispute. We do not go into the question of such alleged waiver, for reasons we shall hereinafter state. On December 28, 1970, Miss Edwards was enlisted in the United States Air Force. On that date, she was on leave at Ogden, Utah, her home. Her father and mother lived in Ogden, but at separate addresses. On that date, she was staying with her father. She drove her father’s car to her mother’s home and she and her mother attended an early “show.” They returned to her mother’s home, and Miss Edwards then drove in her father’s car to visit a friend, arriving at the latter’s home about 10 p. m. She left about 1:30 a. m., intending to call upon a friend, Paul Silvassy, with whom she had become acquainted when they were both in the Air Force. He had been discharged and was living in Roy, Utah, a city adjacent to Ogden, Utah. She proceeded down the Riverdale Road, which led to Roy. As she proceeded along such road, a car passed her, pulled off to the side of the road, and stopped in front of her uncle’s furniture store. She noted it was an old white Thunderbird Ford. After she passed it, its lights were turned off and then on and it began to follow her. When she reached the intersection of Riverdale Road and the main street of Roy, she stopped in the right lane for a red light. The Thunderbird pulled up in the left lane, at the rear of her car, and a man got out of the Thunderbird, came up to her window, pointed a pistol at her, and told her to open her front door. Her front door was stuck and she unlocked her left rear door. The man had on dark sun glasses. He got into the back seat, climbed over into the front seat, and told her to drive ahead and pull off at the first side road. She said to him, “Please don’t hurt me.” He replied for her not “to give him any business” and he would not hurt her. She proceeded to drive ahead, not down a side road. He kept shouting at her to turn off at a side road, and at one time put the pistol to her head, and appeared to be angry when she did not turn off. She then drove through two red lights and made a right turn. They were then in a residential area of Roy. The man told her to pull off to the side of the street and stop, and said she could keep her keys in her purse. She told the man she had a $50 bill in her purse and she would give it to him if he would leave her alone. He did not take the bill, but later told her to give it to him and she did. He blindfolded her and took her out the right door of her car and around to the rear of the Thunderbird, had her get in the rear seat, and got in that seat with her. He told the driver of the Thunderbird to drive straight to the house. The driver appeared to be nervous, and the man in the rear seat changed to the front seat and made her lie down on the back seat. After driving some distance further, they turned in to what she thought was a house. One of the men said, “Wait a minute and see if the neighbors are looking.” They then told her to get out of the back seat of the Thunderbird. She took two steps upward. Her second step was on a rug. One of the men told her she was in a living room and they had her sit down on what she thought was a couch. They removed all her clothing. They then laid her down on what she had thought was a couch, and which turned out to be a bed. They both took off all their clothes and each one of them raped her two times. The room had two beds. One of the men raped her on one of the beds twice and the other one on the other bed twice. She did not resist, because she was in great fear that they would severely injure her if she resisted. Before raping her, they made her engage in unnatural and perverted relations which are too sordid to relate. Fortunately, we do not have to relate them. When they had satisfied their lust, they told her she could go in the bathroom, remove the blindfold, and dress, and then to replace the blindfold. When they handed her clothing to her, they failed to include her blouse. The bathroom door opened outward into the other room, and one of the men handed her the blouse through the partly open bathroom door. She stated she got a good view of the right side of the man’s face, the upper part of his body, his hair, his right sideburn, the texture of his skin, and part of his shirt and jacket, particularly the sleeve of the latter, which was intruded into the open door when he handed her the blouse. Of course she had a good opportunity to observe the features, clothing, hair and voice of the other man, who was Richard Burney, before he blindfolded her. And she said one thing that distinguished Burney from the other man was that Burney’s voice was quite coarse and rough, and the voice of the other man, who handed her the blouse, was normal and natural. In describing what she saw, she said his hair was long and brushed back and was dark brown in color; that his side-burn extended below the lobe of his ear; that his shirt was solid gold in color and had a large collar. She further said that she saw the arm of his coat when he handed the blouse to her; that it was a brown suede coat with a rough finish, and that Burney wore a brown coat with a smooth finish. Miss Edwards dressed and replaced the blindfold and came out of the bathroom. The man with the suede coat led her to the Thunderbird and had her lie down on the back seat. She felt the rough suede coat when he led her. The blindfold was loose enough so when she looked straight down she could see the upholstering in the Thunderbird, and she noted that it was white. She observed that clothes were.hanging on the left side of the rear seat; that a sweater was hanging on the left front seat of the Thunderbird, which was a bucket seat, and that there were bottles and other junk on the floor in front of the rear seat. The men told her they would take her to her car. One of them told her when they stopped to wait and keep down, because they wanted to wipe the fingerprints off of her car. They then drove to about a half block from her car and stopped again. The man on the passenger side of the front seats of the Thunderbird took her to the rear of the Thunderbird and told her to walk straight ahead and not to look back or she would get her head blown off. He then removed the blindfold and she walked straight ahead to her car. She entered her car, drove about two blocks, and found a Conoco filling station which was open. She asked the attendant to call the police. David Bishop, a Roy police officer who was on the night shift, answered the call. He received it about 3:45 a. m. He went to the Conoco station and had a conversation with her. She gave him a paper, which was a sanitary toilet seat cover that she had removed from the toilet seat and put in her purse while she was in the bathroom. It had a picture of a bear on it, which was the emblem of the Travelodge Motel, and enabled the police officers to identify the motel where the rapes were committed. After talking to Miss Edwards, Bishop took her to the Roy Police Station. There she talked to a detective of the Roy police force. He called the Ogden Police Department. The Roy police then took her to the Ogden Police Department. The Travelodge Motel was located in Ogden. Miss Edwards’s father was at the Ogden Police Station and had reported her as missing. The police officers then took Miss Edwards to the Travelodge Motel. They located a white Thunderbird in a parking lot area adjacent to the motel. They then took her to the Thunderbird in the parking lot. By its general appearance, the articles that were hanging on the rear seat, and the bottles and junk that were on the floor, she was able to identify it as the car in which she was taken to the motel and in which she was returned to her car. After locating the white Thunderbird, the police officers kept the motel under surveillance from about 5 a. m. until about 7:15 a. m. At that time, Russell Nebeker, a detective on the Ogden Police Department, returned to the motel a second time, entered the motel, and asked the clerk the room number of the two persons who were traveling in the white Thunderbird. The clerk told him it was No. 132, and gave him the key to such room. Nebeker was accompanied by Sergeant Reid and Detective Padelsky, who entered the room with him. They observed two twin beds in the room, and a man asleep in each of the twin beds. One of the men was Harris and the other was Burney. They were placed under arrest, permitted to dress, handcuffed, and taken into custody. Nebeker testified that Harris’s clothes were partly over a chair and partly on a table immediately at the foot of the bed occupied by Harris, and that Burney’s clothes were at a sepárate location near his bed. The evidence showed that at the time of the lineup each man was dressed in the clothes he had at the motel when placed under arrest by the officers. Since Harris was handcuffed, a gold shirt and suede jacket were draped over his shoulders. Mrs. Christine Buchanan, the clerk at the motel, examined the picture taken at the lineup and identified Burney as the man who registered about 1 a. m. on December 29, 1970, and was assigned to Room 132 for two persons. She said he registered under the name of Don Newman. On the registration slip, under the word “automobile” was written “T.B.” When Burney registered, he asked the clerk if his boss had been there two days before and made a reservation for himself and a Mr. Harris. Mrs. Buchanan testified that she had attended the preliminary hearing, but was not called as a witness. She testified at the trial of Harris in the state court. On cross-examination, Harris was pointed out to her, and Mrs. Buchanan testified it was not Harris who registered for Room 132 at the motel. She was shown Defendant’s Exhibit No. 1, the photograph of the lineup, and she identified Number 6, who was Richard Burney, as the man who registered at the motel. John Kinsey, a witness for the state at the state court trial of Harris, testified to these facts: Kinsey met and became acquainted with Harris at Mike’s Lounge in Salt Lake City, Utah, “somewhere around Christmastime.” He met Harris again at the same lounge on December 28, 1970, at 2 p. m. and was with him until 9 p. m. of that day. Harris was accompanied by one Burney. Kinsey said he did not remember Burney’s given name. They visited several lounges and played pool. They traveled from one lounge to another in a bullet-shaped white Thunderbird. It was a convertible model, 1961, 1962, or 1963. Kinsey particularly noticed black clothing hanging in the rear behind the driver’s seat on the left-hand side. Harris also wore boots and had some difficulty in getting them on at the motel. Kinsey testified that Harris was wearing cowboy boots when he was with him on December 28, 1970, in Salt Lake City. Counsel for Harris contends that the way he was dressed at the lineup was improper and suggestive of his identity, and tainted his identification at the preliminary hearing and the trial. Miss Edwards did not identify Harris at the lineup, although he looked familiar to her. Likewise, she did not identify him at the trial. She did identify Burney at the lineup. In its opinion on the appeal of the state court case, State v. Harris, 26 Utah 2d 365, 489 P.2d 1008, 1010, the Supreme Court of Utah stated: “In the instant case, the, victim has never specifically identified defendant as the man but has meljely testified as to the similarity of characteristics of her assailant and the defendant. * # » At the trial, Miss Edwards did not identify Harris as one of her assailants. Her testimony was in the nature of comparisons. She testified that the jacket and shirt which the officers draped around Harris’s shoulders when they arrested him, and which he wore at the lineup, were the same as the jacket and shirt she saw on the man when he handed her the blouse, and that the hair of the man who handed her the blouse, as to style, color and length, was the same as Harris’s hair at the trial, except that at the trial his hair appeared to be a little shorter, and that the right side-burn of the man who handed her the blouse was the same as that of Harris at the trial, except it appeared to be a little shorter. She did not testify that the man who handed her the blouse and Harris were identical. She only testified to the similarity of clothing, hair, sideburns, and texture of facial skin. That, in our opinion, is not identification in the ordinary sense of the term. Kinsey examined the state’s exhibits “D” and “E”, the jacket and shirt found with Harris’s clothes when he was arrested on the morning of December 29, 1970, and said they were the same suede leather jacket and solid gold shirt that Harris was wearing when he was with him and when he left him on December 28, 1970. Kinsey also examined the state’s exhibits “I” and “J”, which were photographs of the Thunderbird that the police found parked in the parking lot adjacent to the motel on the morning of December 29, 1970. He said that the photographs showed some black clothes hanging in the car on the back of the driver’s seat, and that he had noticed the same clothing hanging in the same location in the Thunderbird that Harris and Burney were driving when he was with them on December 28, 1970, and that the car shown in the photographs was the same car. Miss Edwards testified that the Thunderbird the police officers found in the parking lot was the same Thunderbird in which Burney and another man transported her from her car to the motel and from the motel back to her car. She testified that on the trip back to her car her blindfold was loose and she could see by looking downward, and that she saw clothing hanging behind the driver’s seat and bottles and other articles on the floor in front of the rear seat, and that she saw in the Thunderbird that the officers found parked adjacent to the motel the same clothing hanging in the same location, and the bottles and other articles on the floor in front of the rear seat. We think the evidence clearly established that the clothes Harris wore in the lineup, held very shortly after he was arrested and taken to the police station, were the same clothes he was wearing when he was with Kinsey and when he left him, and that he wore such clothes continuously thereafter until he retired at a late hour on December 29, 1970, in Room 132 at the motel. If that be true, then he was wearing those clothes when the offense was committed against Miss Edwards at the motel. Solid colored shirts were not unusual in 1970, nor were suede leather jackets with a rough finish. We do not think that under the facts and circumstances shown in this case, with respect to Harris, it was error to require him to wear the same clothes in the lineup that he was wearing when the offense was committed. Miss Edwards did think Harris looked familiar in the lineup, but not sufficiently so for her to positively identify him. Counsel for Harris concedes Miss Edwards did not identify Harris in the lineup, but asserts that she identified him at the preliminary hearing. We do not have the record of the preliminary hearing before us. The reliance of counsel for Harris on his contention that Miss Edwards identified Harris at the preliminary hearing is based on her answer to a very adroit question asked by him, as follows: “Now, at the preliminary hearing did you make an identification of <my sort of Mr. Harris?” We emphasize the words, “of any sort.” She answered the question in the affirmative. He then asked her: “And how did you make that identification ?” She answered: “What do you mean by how? How I knew, or * * ?” Counsel at that point interrupted her by asking another question and gave her no opportunity to explain what she meant by “identification.” There are times when the word “identify” is loosely used in the record, and since counsel for Harris interrupted Miss Edwards when she started to state how she identified Harris, we are not going to assume that she testified to more at the preliminary hearing than she did at the trial. Moreover, the important time was at the trial, not at the preliminary hearing. We conclude, therefore, that it was not error to have Harris wear the clothes in the lineup that he had worn from the afternoon of December 28, 1970, until he retired at an early hour of the morning of December 29, 1970, and at the time when the offense was committed. The remaining question is whether Harris was entitled to have an attorney present to advise him at the lineup. Chief Judge Ritter held that he was deprived of his right to counsel at the lineup, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. In Kirby v. Illinois, decided June 7, 1972, 406 U.S. 682, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411, 417, the Supreme Court held: “ * * * it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. * * * ” At the time the lineup was held, Harris had not been charged by information, complaint, or any other formal accusation, and the Supreme Court in Kirby v. Illinois, supra, held that a police station lineup conducted before the defendant had been indicted or otherwise formally charged with a criminal offense, and where all the defendant was required to do was to exhibit his physical characteristics, and was not required to disclose any knowledge that he might have or provide the state with evidence of a testimonial or communicative character, was not a violation of the Sixth and Fourteenth Amendments, since adversary proceedings had not been commenced. Accordingly, we conclude that the manner in which the police lineup was conducted, and the fact that Harris did not have counsel who was present at the lineup, did not violate any constitutional right of Harris, and that the court erred in releasing him from custody. The cause is remanded with instructions to discharge the writ of habeas corpus and remand Harris to the custody of the appropriate Utah officials. . See United States v. Ball, 6 Cir., 381 F.2d 702, 703 (1967), cert. denied 390 U.S. 962, 88 S.Ct. 1066, 19 L.Ed.2d 1161; Schott v. Colorado, Colo., 482 P.2d 101, 102 (1971); People v. Eloyd, 1 Cal. 3d 694, 83 Cal.Rptr. 608, 464 P.2d 64, 75-76 (1970) ; State v. Harris, 26 Utah 2d 365, 489 P.2d 1008, 1011 (1971). 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_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. HYNES, Regional Director, Fish and Wildlife Service, Department of the Interior, v. GRIMES PACKING CO. et al. No. 11585. Circuit Court of Appeals, Ninth Circuit. Nov. 21, 1947. As Amended Jan. 12, 1948. Writ of Certiorari Granted April 5, 1948. A. Devitt Vanech, Asst. Atty. Gen., Harry O. Arend, U. S. Atty., and Willliam E. Berrett, Asst. U. S. Atty. both of Fairbanks, Alaska, and Roger P. Marquis and S. Billingsley Hill, Attys., Dept, of Justice, both of Washington, D. C., for appellant. Edward F. Medley, Frank L. Mechem, and W. C. Arnold, all of Seattle, Wash. (Covington, Burling, Rublee, Acheson & Shorb, of Washington, D. C., of counsel), for appellees. Before DENMAN, HEALY, and BONE, Circuit Judges. DENMAN, Circuit Judge. Appellant Hynes appeals from a permanent injunction enjoining him “from enforcing or attempting to enforce the restrictive provisions of Section 208.23 (r) of the 1946 Alaska Fisheries General Regulations and from seizing any boats, seines, nets, or other gear and appliance used or employed in fishing by the plaintiffs in the waters in and adjacent to the Karluk Indian Reservation situated on Kodiak Island, Alaska, three thousand feet seaward from the shore at mean low tide or any fish taken therewith, or from arresting any of plaintiffs’ fishermen who carry on fishing operations in said waters.” The district court found that appellant, as Regional Director of the Fish and Wildlife Service of the Department of the Interior, had threatened to seize the appellees’ fishing bo’ats and catches of salmon and to arrest their fishermen, some six hundred in number, in the manner prohibited by the injunction, purporting to act under the summary procedures of Section 6 of the White Act of June 6, 1924, 48 U.S.C.A. § 226. The court held against appellant’s contention that these ocean waters below lofiv tide had been included in a reservation for the Indians of Karluk village located on Shelikof Strait, giving the Indians a monopoly of fishing there. It further held that an Alaska Fisheries General Regulation 208.23 (r), designated to give fishing rights to the Karluk Indians in such purportedly reserved ocean waters and denying to all others the right to fish there unless licensed by the Indians to participate in their monopoly, violated Section 1 of the White Act, considered infra, providing that if any persons are allowed to fish in Alaskan waters none shall be excluded. Regulation 208.23 (r) of the Secretary of the Interior purports to create a monopoly of fishing in the Karluk Indians in the above described ocean waters by providing: “Sec. 208.23 Waters closed to salmon fishing. All commercial fishing for salmon is prohibited as follows: * * * “(r) All waters within 3,000 feet of the shores of Karluk Reservation (Public Land Order No. 128, May 22, 1943), beginning at a point on the east shore of Shelikof Strait, on Kodiak Island, latitude 57° 32' 30" N., thence northeasterly along said shore to a point 57° 39' 40". “The foregoing prohibition shall not apply to fishing by natives in possession of said reservation, nor to fishing by other persons under authority granted by said natives (49 Stat. 1250). Such authority shall be granted only by or pursuant to ordinance of the Native Village of Karluk, approved by the Secretary of the Interior, or his duly authorized representative.” It is thus apparent that regulation 208.23 (r) does not contemplate that the ocean waters there involved are ordinary waters open to fishing subject to usual regulations for fish, preservation, but that the regulation is based upon the assumption that there is a reservation of these waters in which there is a monopoly of fishing in the Karluk Indians. Further that it is a monopoly in which these Indians may sell licenses to others to participate. Indeed, the appellant claims that the appellee fishing companies and all others have no cause to complain because they could buy such licenses from the Indians to participate in their monopoly and that the appellees have obtained such licenses in the past, and hence have been able to seine as many fish as they would if the regulation had not existed. The regulation has no other purpose than to create the Indians’ monopoly on the supposition that an Indian reservation in fact has been created and that the Secretary has a right to permit the Indians to fish there and deny the right to all other fishermen not so licensed. The primary question for our determination is whether the Secretary of the Interior was authorized by Congress to create an Indian reservation in these waters below low tide for, if they are waters not so reserved, monopoly fishing rights therein are prohibited 'by Section 1 of the White Act, 48 U.S. C.A. § 221 et seq. Since we decide that Congress has not given' such authorization, to the Secretary, we are not concerned with the question whether — even if so reserved— regulation 208.23 (r) violates the White Act in permitting the licensed fishermen other than Indians to fish there and refusing the right to the unlicensed. Appellant contends that Congress created the power in the Secretary to reserve to the Karluk Indians such below low tide ocean waters by Section 2 of the amendment of 1936, 48 U.S.C.A. § 358a,' of the Wheeler-Howard Act of 1934, 48 Stat. 984, 25 U.S.C. A. § 461 et seq. Section 2 describes what of the several classes of lands of the United States may be so covered in Indian reserva^tions. “Sec. 2. That the Secretary of the Interior is hereby authorized to designate as an Indian reservation [a] any area of land, which has been reserved for the use and occupancy of Indians or Eskimos by section 8 of the Act of May 17, 1884 (23 Stat. 26), or [b] by section 14 or section 15 of the Act of March 3, 1891 (26 Stat. 1101), or [c] which has been heretofore reserved under any executive order and placed under the jurisdiction of the Department of the Interior or any bureau thereof, together with [d] additional public lands adjacent thereto, within the Territory of Alaska, or any other public lands which are actually occupied by Indians or Eskimos within said Territory: Provided, That the designation by the Secretary of the Interior of any such area of land as a reservation shall be effective only upon its approval by the vote, by secret ballot, of a majority of the Indian or Eskimo residents thereof who vote at a special election duly called by the Secretary of the Interior upon thirty days’ notice: * * (Emphasis supplied.) Concerning the phrase “any area of land which has been reserved,” it is not contended that these Indians had had reserved to them any of the below tide waters of Shelikof Strait by virtue of the Act of May 17, 1884, 48 U.S.C.A. § 356, or of the Act of March 3, 1891, 48 U.S.C.A. § 358, or by any prior reservation placed under the jurisdiction of the Department of the Interior. Whatever power the Secretary of the Interior had to reserve for them any lands is created by that portion of Section 2 which reads “The Secretary of the Interior is hereby authorized to designate * * * additional public lands adjacent thereto, within the Territory of Alaska, or any other public lands which are actually occupied by Indians or Eskimos within said Territory.” In this respect the 1936 Act differs from the above Acts of 1884 and 1891 which use the general phrase “lands” without the qualifying adjective “public.” I. Congress in the 1936 amendment to the Wheelcr-Howard Act, authorizing the Secretary of the Interior to reserve “public lands’’ for Alaska Indian tribes, did not empower him to reserve ocean lands below low water mark. It did not intend to create in the Indians communal monopolies in such salmon fishing waters about the long established packing plants from which would be excluded the thousands of white fishermen employed in producing for the world, but principally the United States, its largest supply of canned fish food. The evidence shows that a large part of the 30,000 Alaska Indians live in over eighty groups, most of them at the mouths of streams into which run the salmon seeking to spawn. Prior to the coming of the canning and packing plants, the Indians smoked the salmon for winter use, that fish being their principal article of diet By a process of survival these Indian villages are at the rivers having the largest salmon runs. Over a half century ago American enterprises began to supply the world, principally the United States, with these salmon processed into cans. These enterprises grew until their investment of upwards .of seventy million dollars added to the world’s food supply in the three years preceding the 1936 statute, under which the Indian fishing monopolies here in question were purported to be created, an annual average of 5,947,518 cases of 48 pounds each — that is 285,480,899 pounds valued at $30,918-700. In 1935 9,205 fishermen in 845 vesseis and 3,989 boats and 11,861 processing employees were engaged, in this food production. Congress in 1924 in the so-called White Act, hereafter considered, had recognized the character of this addition of this food to the world’s commerce by placing the fishing regulations under the Secretary of Commerce. It remained there until 1939, three years after the 1936 Act here to be construed, when,, under the executive reorganization act of that year, 53 Stat. 561, it was transferred to the Secretary of the Interior. Such a shift in the administrator does not change the Congressional recognition of the addition to commerce of this food supply. For some time 'before 1924 the Department of Commerce had created a series of monopolies of exclusive fishing in certain of these Alaskan food processors. The Indians through their counsel joined with other processors excluded by the monopolies to obtain relief from Congress and, in response to their appeals, the Congress in 1924 enacted the White Act. That Act ended the monopoly system by providing that every fishing regulation made by the Secretary of Commerce “shall be of general application within the particular area to which it applies, and- that no exclusive or several right of fishery shall be granted therein nor shall any citizen of the United States be denied the right to take, prepare, cure, or preserve fish or shellfish in any area of the waters of Alaska where fishing is permitted by the Secretary of Commerce.” (Emphasis supplied.) 48 U.S.C. A. § 222. Whether prior to 1924 citizenship had been conferred on the Alaska Indians and Eskimo who came into the United States not by conquest but by acquisition under the Russian treaty, they clearly were recognized as citizens by the Act of June 2, 1924, 43 Stat. 253, four days before the White Act became law. As such citizens they obtained the freedom from a monopoly exclusion from the fishing waters which they sought in their advocacy of the White Act. This was made apparent by the report on that Act of the House Committee (H.Rep. No. 357, 68th Cong., lst.Sess. p. 2): “At the present time it is the policy of the department as one means of control of fishing to grant a limited number of fishing permits within any designated area and to exclude .all others from fishing rights therein. Your committee does not question the purpose of the department in this regard, but it has reached the unanimous and positive opinion that this practice of granting exclusive fishing privileges should cease and in this section it is declared that all regulations authorized to be made shall be of general application and that no exclusive or several right of fisheries shall be granted, nor shall any citizen be denied the right to take fish in waters where fishing is permitted. This declaration of policy and prohibition of law was earnestly urged upon the committee by the Delegate from the Territory, Mr. Sutherland, and has the general support of the people of the Territory.” Senator White, author of the bill, stated (65 Cong.Rec. 5974): “The Committee inserted this provision in order to do away with that exclusive right of fishing and to insure to every citizen of the United States equality of right and equality of opportunity.” The contention of the appellant is that Congress in the 1936 amendment of the Wheeler-Howard Act reversed the non-monopoly policy in Alaska fisheries and authorized the Secretary to create a series of monopolies of the Alaska fishing waters. This the Secretary proceeded to do, beginning in 1943, after waiting seven years after the claimed authorization was enacted. Typical of these monopolies to the Indian citizens is that to the Karluk Indians here in question, about which the facts are undisputed. A group of fifty families of Indians inhabit the village of Karluk. Their men were trappers and fishermen. How few trapped and fished is evidenced by the fact that in 1944 but 57 persons were eligible to vote to organize under the amended Wheeler-Howard Act, supra. Their men operated fish nets owned by the Alaska Packers Association in which they caught salmon by mooring one end of the net to a shore post and drawing the net across the salmon stream moving towards the Karluk River and its upper spawning beds. They also fished for salmon from their own boats. Their catch was sold to the Alaska Packers’ plant on the Karluk spit and to the appellee packers having plants elsewhere on Kodiak Island. They also were employed by the appellee canners on their boats, being paid, as the white fishermen, at so much per fish. In the non-fishing season they were employed by the local Alaska Packers’ plant. There is no evidence that the catch of the white fishermen in the waters sought to be reserved for the Indians in any way lessened the catch of the fifty Indian families or the wages they earned. It is fair to assume that since six hundred-odd white fishermen used these waters without interfering with each other, the 57 Indian fishermen would find no greater interference. Indeed, so far as their purchasing power is concerned, it well may be that it was much higher than before the white men established their plants on Kodiak Island. To this Indian group the Secretary’s instant Public Land Order 128 undisputably gave 35,000 acres, over 50 square miles, of upland “public lands” bordering on 15 miles of Shelikof Strait, the western boundary of Kodiak Island. The area of upland so reserved for the fifty families of the Karluk Indians is not questioned. The average for each family is over 700 acres, that is over four times the size of the homestead entry permitted to Indians in Alaska. 34 Stat. 197, 48 U.S.C.A. § 357. The Secretary’s order also purports to give a fishing monopoly of the entire area of the waters in which the salmon stream to the Karluk River may be caught. This fishing monopoly is created by treating as “public lands” of the United States an area below low water in Shelikof Strait 15 miles long by 3,000 feet wide. That is to say, 5,450 acres or over 8% square miles covering the fishing area of the salmon run into the Karluk River spawning beds, From this reservation, if valid, the appellant’s brief properly claims there are excluded from trespass in its area all the 450 white fishermen shown to be hitherto employed there by the appellees, plus, say, 150 more by the large Alaska Packers’ plant on Karluk spit. In the last season of 1946 the white fishermen of appellees caught 3,920,789 salmon in the purportedly monopolized area which were processed for the American food supply. To this must be added the large amount of the Alaska Packers. Appellees’ capital investment in plant and equipment, dependent in large part on these salmon, is $2,075,000. Plus this is the capital investment of the Alaska Packers’ Karluk plant The value of the appellees’ enterprises as going concerns is so large that it requires a pre-season expenditure of $1,515,000 and the employment as processors in the packing plants of appellees alone of 624 employees. If this fishing monopoly exists, the Wheeler-Howard Act permits the sale to the white fishermen of rights to share in it. It is obvious that wha.t the Karluk community monopoly could extract from these food producers for the right to employ its fishermen in these monopolized waters well could be more than enough to comfortably sustain these Indians without any fishing or trapping at all. Here is not the President’s but the withdrawing power of the Secretary of the Interior, a subordinate officer, which is in question and it is in connection with a statute which confers withdrawal power not in the general language of “lands of the United States” but only over “public lands.” The phrase “public lands” has been confined to a limited class of lands through a long line of Supreme Court decisions which always have distinguished them from other lands of the United States, and which hold that “public lands” do not include the lands below low water mark of ocean waters. These cases require the determination whether the word “public” before the word “lands” gives the phrase “public lands” a specific meaning which does not include such ocean waters and whether Congress would have placed it there if it intended to include such waters, since by omitting the word “public” the word “lands” by itself would have included them. The applicable principle is that restated from many prior decisions in Ex parte Public Bank, 278 U.S. 101, 104, 49 S.Ct 43, 44, 73 L.Ed, 202: “No rale of statutory construction has been more definitely stated or more often repeated than the cardinal rule that ‘significance and effect shall, if possible, be accorded to every word. As early as in Bacon’s Abridgment, § 2, it was said that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” ’ ” The same in Washington Market Co. v. Hoffman, 101 U.S. 112, 115, 25 L.Ed. 782. The principle so stated is always applicable. Here it is the more so in determining whether Congress intended to reverse its anti-monopoly legislation in Alaska fishing in an amendment to an Act in neither of which ocean waters or fishing are mentioned, and upon which nothing concerning ocean waters or fishing appears in the committee reports. That the all inclusive word “lands” in a statute or a treaty .providing for a reservation of “lands” for Indians includes s.uch navigable waters, has been clearly established. In Alaska Pacific Fisheries v. United States, 248 U.S. 78, 79, 39 S.Ct. 40, 63 L.Ed. 138, it was held that under a Congressional statute specifically creating for the Metlakahtla Indians a reservation of “the body of hands known as Annette Islands, situate in Alexander Archipelago in southeastern Alaska” 48 U.S.C.A. § 358, included the fishing grounds in the adjacent navigable waters and upheld regulations implementing the legislation which gave an exclusive right of fishery to the Indians in an area extending 3,000 feet from the shore line. So also where Congress enacted that the President should set apart as Indian reservations in California “four tracts of land, within the limits of said sítate,” 13 Stat. 39, § 2, the President was empowered to include in a reservation of the land, the bed of the Klamath River even assuming, which was contested, that the river was navigable. Donnelly v. United States, 228 U.S. 243, 260, 262, 33 S.Ct. 449, 57 L.Ed. 820, Ann. Cas. 1913E, 710. This court held of the treaty of 1855 with the Quillayute Indians of which Article II provided for a reservation to them of “a tract or tracts of land sufficient for their wants within the Territory of Washington,” 12 Stat. 971, that the treaty, so using the word “land,” warranted a presidential reservation of the tide-lands on. the ocean ■beach of the Quillayute River and of the navigable waters of that river for a distance of over a mile above its mouth. Moore v. United States, 9 Cir., 157 F.2d 760, certiorari denied 330 U.S. 827, 67 S.Ct. 867, 91 L.Ed., ___. So also we held of the word “lands” in the .provision of the Act of 1884 that Alaska “Indians or other persons * * * shall not be disturbed in the possession of any lands actually in their use or occupation” that “lands” included “tidelands” so in use. Heckman v. Sutter, 9 Cir., 119 F. 83, 88. Since the use of the wordl “lands” alone in Section 2 of the statute of 1936 would have given the Secretary of the Interior ithe power to reserve the ocean waters below low tide, we are required to give significance to the use by Congress of the word “public” before the word “lands” unless the phrase “public lands” has been determined to include lands of the United States in the ocean below low water mark. No such decision is cited by appellant and our search has revealed none. On the contrary, the decisions unanimously hold the phrase “public lands” to have an established meaning excluding such waters. On December 11, 1935, a few months before Congress placed the qualifying word “public” before the word “lands” in Section 2 of the Act of 1936, the Supreme Court decided the case of Borax, Ltd. v. Los Angeles, 296 U.S. 10, 17, 56 S.Ct. 23, 80 L.Ed., 9. There, in holding that because the jurisdiction of the Department of the .Interior’s- Land Department extended in preemption claims only to “the public lands of the United States” that body could not render a final decision that preemption claimed lands were not tidelands, the Court states in 296 U.S. at page 17, 56 S.Ct. at page 27, 80 L.Ed. 9: “Specifically, the term ‘public lands’ did not include tidelands. Mann v. Tacoma Land Co., 153 U.S. 273, 284, 14 S.Ct. 820, 38 L.Ed. 714. ‘The words “public lands” are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.’ ‘Newhall v. Sanger, 92 U.S. 761, 763, 23 L.Ed. 769; Barker v. Harvey, 181 U.S. 481, 490, 21 S.Ct. 690, 45 L.Ed. 963; Union Pac. R. Co. v. Harris, 215 U.S. 386, 388, 30 S.Ct. 138, 54 L.Ed. 246.” ,This continued limiting construction of the phrase “public lands” as distinguished from the general word “lands” of the United States is thus seen to extend over sixty years’ judicial consideration of our land laws. In Mann v. Tacoma Land Co., 153 U.S. 273, 284, 14 S.Ct. 820, 822, 38 L.Ed. 714, Mann claimed title to certain tidelands in Commencement Bay in Puget Sound acquired by a location under script issued to one Valentine in lieu of lands claimed by him under a Mexican grant. This script was created by a special (not general) Act of Congress providing that Valentine or his succeeding holders of the script “may select, and shall be allowed, patents for an equal quantity of the unoccupied and unappropriated public lands of the United States.” 17 Stat. 649, 650, § 3. In holding that tidelands were not included in the phrase “public lands” the Supreme Court states: “There is nothing in the act authorizing the Valentine script, or in the circumstances which gave occasion for its passage, to make an exception to the general rule. It provided that the script might be located on the unoccupied and unappropriated public lands, but the term ‘public lands’ does not include tide lands. As said in Newhall v. Sanger, 92 U.S. 761, [763, 23 L.Ed. 769] : ‘The words “public lands” are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.’ See also Leavenworth, etc., Railroad v. United States, 92 U.S. 733, [23 L.Ed. 634]; Doolan v. Carr, 125 U.S. 618, 8 S.Ct. 1228 [31 L.Ed. 844].” The “general rule” referred to was that of Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331. Unlike the use of the phrase “public lands” in- the special legislation creating the Valentine script, the; phrase was used in the “general legislation” of September 27, 1850, 9 Stat. 496,-providing for a donation claim of “public" lands” which the Supreme Court held did' not include lands below high water mark. That Act provided for a grant to “every white settler or occupant of the public lands, American half-breed Indians included,” on certain conditions of occupancy and cultivation of the lands, of 320 acres if unmarried and an additional 320 acres to his wife if married to her before December 31, 1851. Despite this specific restriction of the legislation to the relatively ¡few whites and half-breed Indians in Oregon iri 1851, the Supreme Court states that the Oregon Donation Act is “general legislation” by which cannot be granted navigable waters adjoining such “public lands.” It is thus apparent that whether the Act of 1936 be regarded as general legislation for all the Indians in Alaska or special legislation for their benefit, the phrase “public lands” does not include ocean waters any more than in the special legislation for Valentine or the general legislation for the Oregon whites and half-breeds there in 1851. Nor is the rule of Shively v. Bowlby confined to legislation for grants of land. In the case of United States v. Holt Bank, 270 U.S. 49, 55, 46 S.Ct. 197, 70 L.Ed. 465, its principle was applied in determining that a reservation of the Chippewa Indians surrounding navigable Mud Lake, whose area of 5,000 acres is comparable to the area of navigable waters here involved, did not include that lake. This court in Heckman v. Sutter, 9 Cir., 128 F. 393, 394, 395, expressly distinguishes between the limited meaning of the phrase “public lands” as excluding ocean lands and distinguished that phrase from the phrase “any lands” of the-Act of May 17, 1884, which it held included Alaska tidelands under the rule of Shively v. Bowlby, stating: “Nor is it reasonable to suppose that Congress intended the broad and comprehensive terms thus used by it to be limited by the interpretation put upon the term ‘public lands’ in the general land laws, which it expressly provided should not be in force in Alaska. ■* ■* ” Despite the holding of the limiting meaning of the word “public” before the word “lands” in the Borax, Ltd. case, decided shortly before the Act of 1936, and our decision in Heckman v. Sutter, last cited, it is claimed that Congress intended that the latter Act must be construed as if the all-inclusive word “lands” alone were used. The argument is, in effect, that the coastal Indians of Alaska would be economically benefitted if the word “public” were absent .-and since the Wheeler-Howard Act contemplates an economic benefit to them we -.must construe it without that adjective. Of course, it could not be contended that the only economic benefit Congress could have contemplated was a reservation of ocean waters, for here we have a reservation of fifty square miles of upland. So also does a reservation of upland bordering on fishing waters give to the Indians exclusive access to such waters from their shore, both for the launching of their boats and for the posts upon which are attached their nets held by boats across the streams of fish in the navigable waters. That it would be a further economic benefit to create fishing monopolies in the Indians and thus destroy the established packing industries or compel them to pay tribute to them is also obvious, but for the reasons stated we think that Congress did not so intend when it used the phrase “public lands” in the 1936 amendment. The attempt of the Secretary, beginning in 1943, to create the several monopolies in ocean waters as part of “public lands” does not constitute an administrative interpretation overcoming the sixty years of contrary interpretation of the Supreme Court. There is no error in the holding of the district court that such attempted reservation of ocean waters in Public Order 128 is invalid. In reaching this conclusion we have had in mind that the packing corporations, whose thousands of fishermen have so increased the world’s food production, are not to be regarded as eleemosynary institutions. The American way of the profit motive often leaves unjustly behind minority groups of lesser education and initiative. That the Alaska Indians have suffered in the past under the competitive system is obvious.- That statutes for their relief should be liberally construed in their1 favor is well established. Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138. What we have held is no more than that Congress did not intend to give such monopoly creating power to the Secretary of the Interior by the particular 1936 amendment to the Wheeler-Howard Act which does not concern the Alaska fisheries and in the consideration of which amendment the great food producers had no reason to participate and which could give no ground for their exclusion, from their established fishing grounds, except by a construction of its language contrary to the construction of over half a century. II. The White Act does not permit a monopoly of fishing in these Indian citizens as a conservation measure. There is no merit in the contention that, even assuming the ocean waters not reserved, regulation 208.23 (r) is a valid method of conservation because, under the Secretary’s direction, the licensees who share in the monopoly so may be limited that the balance between catch and reproduction of salmon is better maintained. The White Act gives the Secretary the wide discretion recognized in Dow v. Ickes, App.D.C., 123 F.2d 909, but it plainly says that in seeking conservation “no exclusive or several right of fishery shall be granted” in a regulated area — and here exclusive rights are given to the 57 Indians and their favored white licensees. Six hundred American fishermen will be “denied the right to * * fish” which is given them wherever others are permitted under the White Act so to do. Nor is there merit in the contention that this is a regulation giving a preference to resident as distinguished from non-resident fishermen held valid in many states. Here is boldly provided a sharing in the monopoly of a limited number of nonresident licensees, a purpose, the evidence shows, which was accomplished by the sale to them by the Indians of permits for the season of 1946. Likewise with appellant’s contention that appellees cannot obtain relief because some of them actually fished under the Indian permits in the 1946 season. Obviously, under the wrongful threat of appellant to seize their boats during that season, they would pay the Indians their exaction rather than lose a large part of the pre-season expenditures of $1,515,000 which the district court found actually had been made. Action under such a threat cannot deprive appellees of the right to resist such threatened illegal action in succeeding seasons. III. The Secretary is not an indispensable party. It thus appears that appellees are not to be excluded from fishing in the Karluk salmon run either by the Secretary’s purported reservation of public lands under the Act of 1936 or by his purported conservation reservation of the Karluk fishing area under the White Act. In both cases the purported action was without any authority whatsoever. Since all power to act was absent, the Secretary was not merely abusing a discretion and hence required to be joined. The rule as stated for this circuit in Neher v. Harwood, 9 Cir., 1942, 128 F.2d 846, 849, 158 A.L.R. 1116; certiorari denied 317 U.S. 659, 63 S.Ct. 57, 87 L.Ed. 529, is: “In the two former cases the superior officer had acted under a statute which was not attacked as unconstitutional, but it was contended that the superior had in some manner abused his discretion and in such circumstance it was held that he should be made a party to the action in order to defend his direction and regulations. Where he was without authority to act at all in the premises his actions assuming to authorize action by the subordinate were of no validity and left the subordinate as the actor subject to restraint.” (Emphasis supplied.) In that action, in 128 F.2d, at page 849, we described Colorado v. Toll, 268 U.S. 228, 45 S.Ct., 505, 69 L.Ed. 927, as a case in which the superior was not necessarily joined because “he had no statutory authority whatsoever to issue the regulations complained of.” So similarly Berdie v. Kurtz, 9 Cir., 75 F.2d 898. The rule is similarly stated for the Sixth Circuit that where plaintiffs “are challenging the statutory power of the Administrator to promulgate the regulations in question * * * the Administrator was not an indispensable party to the action and the court had jurisdiction to proceed against the Administrator’s subordinates.” Varney v. Warehime, 6 Cir., 147 F.2d 238, 243; certiorari denied 325 U.S. 882, 65 S.Ct. 1575, 89 L.Ed. 1997. See also in the Fourth Circuit, Ainsworth v. Barn Ballroom Co., 157 F.2d 97, and the Fifth Circuit, Yarnell v. Hillsborough Packing Co., 70 F.2d 435, 438, 92 A.L.R. 1475. Appellant contends that injunctive relief must be denied under our decision in P. E. Harris Co. v. O’Malley, 9 Cir., 2 F.2d 810. That, however, was not a case where a regulation of the Secretary of Commerce was claimed to be invalid. The injunction there was sought to determine whether a particular salmon trap violated a regulation. In the instant case, the Secretary is held to have no authority to make the regulation the 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_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". George W. PRECHTER, Jr., Appellant, v. UNITED STATES of America, Appellee. No. 24394. United States Court of Appeals Fifth Circuit. Aug. 20, 1968. Michael D. Haas, Bay St. Louis, Miss., for appellant. R. E. Hauberg, U. S. Atty., E. R. Holmes, Jr., Asst. U. S. Atty., Jackson, Miss., Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis, William M. Cohen, Attys., Dept, of Justice, Washington, D. C., for appellee. Before GEWIN and COLEMAN, Circuit Judges, and HUGHES, District Judge. GEWIN, Circuit Judge. This is an appeal by George Prechter (appellant) from the judgment and order in a condemnation proceeding entered by the United States District Court for the Southern District of Mississippi. Appellant complains of an award based upon the findings and conclusions of a three-man commission which heard the evidence on the question of just compensation. He objected to the report of the commission but was overruled by the district court which entered an order confirming the award. From this order appellant has prosecuted this appeal. Appellant owned an 80 acre tract of land in Hancock County, Missisippi, which he had purchased in fee during the period from 1957 to 1959 at a total cost of $4,000. At the time of purchase there were no buildings, residences, barns, or wells on the land, and no subsequent improvements have been made. There has been an improvement in road conditions since purchase. Electricity was available on the property through distribution lines owned and operated by Coast Electric, a Rural Electrification Authority Cooperative. The Mississippi Power Company acquired a transmission line easement over approximately six acres of the eighty acre tract. Telephone service was also available and a gas transmission line was located near the property.- This tract was one of many located in a buffer zone which was created by the National Aeronautics and Space Administration around its Mississippi Test Facility to provide protection against the tremendous noise and vibration caused by the test firing of rockets at the facility. This buffer zone was created by NASA through the imposition of restrictive use easements on the lands in the area involved. The commission was correctly charged that the formula to be used in ascertaining just compensation should be the difference between the fair market value of the tract before the imposition of the easement and its fair market value after such imposition. The parties agreed that the optimum use of the land after the taking was for growing timber. The highest and best use prior to the taking and the question of value were sharply contested. A fact which was apparently almost unnoticed until oral argument before this court was the complete failure of the commission to place a pre-taking value upon seven acres of appellant’s land. During oral argument, the government conceded that the seven acres were completely absent from the commission’s report, but argued that any objection to such omission was waived by appellant’s failure to raise the point before the district court. We are unable to accept this position. We are not concerned here with an evidentiary question which we have frequently held must be raised in the district court before it will be considered on appeal. United States v. Benning, 330 F.2d 527 (9 Cir. 1964); United States v. Cooper, 277 F.2d 857 (5 Cir. 1960). Rather, the objection here is to the complete failure of the commission to place any value whatsoever on seven acres of Prechter’s land. Such an error can and must be noticed on appeal, even if raised for the first time. Here appellant did object to the award as inadequate, arbitrary, and not based upon any of the testimony. In the circumstances of this case, such allegations are sufficient to allow a review of the complete omission of these seven acres from the commission’s pre-taking calculation of value. We conclude that the omission of the pre-taking evaluation of these seven acres requires a reversal, and a resubmission of the case for new findings and conclusions as to value before and after taking according to the proper standard based on evidence to be heard on resubmission. The record does not reveal why the seven acres were omitted from the report and we decline to speculate. The appellant makes numerous contentions before this court which we find unnecessary to consider because of our disposition of the case. However, the contention that the findings and conclusions of the commission were conclusory does deserve comment. In United States v. Merz, 376 U.S. 192, 84 S.Ct. 639, 11 L.Ed.2d 629 (1964), the Supreme Court, in discussing the standards to be met by a commission’s report in condemnation proceedings, stated: “Conclusory findings are alone not sufficient, for the commission’s findings shall be accepted by the court ‘unless clearly erroneous’; and conclusory findings as made in these cases are normally not reviewable by that standard, even when the District Court reads the record, for it will have no way of knowing what path the commissioners took through the maze of conflicting evidence. See United States v. Lewis, 9 Cir., 308 F.2d 453, 458. The commissioners need not make detailed findings such as judges do who try a case without a jury. Commissioners, we assume, will normally be laymen, inexperienced in the law. But laymen can be instructed to reveal the reasoning they use in deciding on a particular award, what standard they try to follow, which line of testimony they adopt, what measure of severance damages they use, and so on. We do not say that every contested issue raised on the record before the commission must be resolved by a separate finding of fact. We do not say that there must be an array of findings of subsidiary facts to demonstrate that the ultimate finding of value is soundly and legally based. The path followed by the commissioners in reaching the amount of the award can, however, be distinctly marked. Such a requirement is within the competence of laymen; and laymen, like judges, will give more careful consideration to the problem if they are required to state not only the end result of their inquiry, but the process by which they reached it.” 376 U.S. 192 at 198, 84 S.Ct. 639 at 643. In view of our conclusion that the case must be resubmitted to the commission, evidence taken, and another report made, a detailed and critical analysis of the commission’s report heretofore made to the district court is not required. However, we do feel that it is appropriate to state that it is extremely doubtful that the report made by the commission meets the standards set forth in the Merz decision and in the instructions given by the district court. A mere summary of the evidence and the assertion of con-clusory statements is not sufficient. The next report should comply with the requirements set forth in the instructions of the lower court and in the Merz decision. Reversed and remanded. . The three-man commission was appointed pursuant to Rule . 71A(h), F.R.Civ.P., which provides: “(h) Trial. If the action involves the exercise of the power of eminent domain under the law of the United States, any tribunal specially constituted by an Act of Congress governing the case for the trial of the issue of just compensation shall be the tribunal for the determination of that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix, unless the court in its discretion orders that, because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined by a commission of three persons appointed by it. If a commission is appointed it shall have the powers of a master provided in subdivision (c) of Rule 53 and proceedings before it shall be governed by the provisions of paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and report shall be determined by a majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdivision (e) of Rule 53. Trial of all issues shall otherwise be by the court.” . The easement imposed reads as follows: “The estate taken for said public uses in the hereinafter described land is a perpetual and assignable easement for the establishment, maintenance, operation and use or a restricted area in, on, over and across the land . . . consisting of the right to prohibit human habitation or human occupancy of dwellings and other buildings, and the right to prohibit the construction of dwellings and other buildings susceptible of being used for human habitation or human occupancy; together with all right, title and interest in and to the dwellings and other buildings now situated on the land and which are susceptible of being used for human habitation or human occupancy, including the right to demolish, remove, relocate or leave in place said dwellings and other buildings; the right to post signs indicating the nature and extent of the Government’s control; and the right of ingress and egress over and across said land for the purpose of exercising the rights set forth herein; subject, however, to existing easements for public roads and highways, public utilities, railroads and pipelines; reserving, however, to the land owners, their heirs, executors, administrators, successors and assigns all right, title, interest and privilege as may be used and enjoyed without interfering with or abridging the rights, title, and interest hereby taken for said public uses.” . The record reveals the following computations of the commission: “Fair market value before the imposition of the easement: 5 acres homesite on Kiln-Picayune Road at $200.00 per acre $1,000.00 5 acres on Corner’s Road at $150.00 750.00 6 acres within power line easement at $50.00 300.00 57 acres of timberland at $75.00 4,275.00 Total ‘before’ value 6,325.00 Fair market value after the imposition of the easement: 80 acres at $35.00 2,800.00 Just compensation $3,525.00” . The pertinent part of these instructions was: “The reasoning used in deciding on a particular award, what standards you tried to follow, what line of testimony you adopted, what you considered the highest and best use of the property, what sales you considered most comparable and to which you gave the most weight, should be clearly stated.” 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_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. EARL W. BAKER & CO. et al. v. LAGALY. No. 2900. Circuit Court of Appeals, Tenth Circuit. Aug. 14, 1944. Mart Brown, of Oklahoma City, Okl. (Ames, Monnet, Hayes & Brown, of Oklahoma City, Okl., on the brief), for appellant Earl W. Baker & Co. Draper Grigsby and Ben Franklin, both of Oklahoma City, Okl. (Cruce, Satterfield & Grigsby, of Oklahoma City, Okl., on the brief), for appellant Truck Insurance Exchange of Los Angeles, Cal. James Rinehart, of El Reno, Okl. (Rinehart & Welden, of El Reno, Okl., on the brief), for appellee. Before BRATTON, HUXMAN, and MURRAH, Circuit Judges. BRATTON, Circuit Judge. Truck Insurance Exchange, of Los Angeles, California, issued and delivered its contract of liability insurance covering a bus owned and operated by Consolidated School District 57, Canadian County, Oklahoma, in the transportation of school children to and from the school at Union City, Oklahoma. Patrick F. Lagaly attended the school, and on the afternoon m question he was a passenger on the bus returning home. He left the bus at a point near his home, was struck and injured by a truck owned and operated by Earl W. Baker and Company, and died about five hours later. George A. Lagaly, administrator of the estate of the deceased, instituted this action against Truck Insurance Exchange and Earl W. Baker and Company to recover damages. Responding to special interrogatories, the jury expressly found that both defendants were negligent, and that the negligence of each was a proximate cause of the injury. A general verdict was returned for the plaintiff, judgment was entered accordingly, and defendants appealed. For convenience, reference will be made to the parties in the manner in which they appeared in the trial court. Defendant Truck Insurance Exchange advances the contention that its liability was limited to the operation of the bus; that the operation of the bus did not have anything to do with the accident; and that therefore plaintiff was not entitled to recover on the policy. Section 13, Article 9, Chapter 34, Laws of Oklahoma 1939, Section 1195l, Title 70, Oklahoma Statutes 1941, provides that the governing board of a school district authorized by the Act to furnish transportation may purchase insurance for the purpose of paying damages to persons sustaining injuries proximately caused by the operation of a motor vehicle used in the transportation of school children under the Act; that no action shall be brought against the school district under the section, but may be brought against the insurer; and that the amount of damages recovered shall be limited to the amount provided in the contract of insurance. The policy was issued and acquired under the authority of the statute, and it provided for the payment of damages for bodily injuries, including death at any time resulting therefrom, sustained by any person or persons, caused by accident arising out of the ownership, maintenance, or use of the bus. Under the statute and the policy, the liability of the insurer was limited to damages for injury arising out of the operation of the bus. But the operation of the bus within the scope of the statute and the policy included the receiving of the children into the bus and their exit from it. The Lagaly children were being transported from school to their home. When the bus reached a point on the highway in front of the Lagaly home, the driver pulled over on the east shoulder of the highway and stopped in order that the Lagaly children might alight. Patrick F. Lagaly alighted, walked around in front of the bus, and started across the highway toward his home. The truck was passing the bus at that instant, and the child came in contact with it. Opening the door of the bus and allowing the children to alight in those circumstances was an integral part in the operation of the bus. Phillips v. Hardgrove, 161 Wash. 121, 296 P. 559; Pendarvis v. Pfeifer, 132 Fla. 724, 182 So. 307. It was the duty of the school district to exercise extraordinary care for the safety of the children being transported to and from school. Phillips v. Hardgrove, supra; Roberts v. Baker, 57 Ga.App. 733, 196 S.E. 104. Here the bus was traveling eastward on a dirt road which intersects with a paved highway running north and south. As it approached the/ intersection, the driver looked to the south and saw the truck coming north on the highway. It was then between a quarter and a half mile away and was traveling at about thirty miles per hour. The bus proceeded onto the highway, turned to the left, and started north on the highway. It went for approximately a quarter of a mile to the point in front of the Lagaly home where it stopped. The driver knew that the paved highway was traveled generally; knew or should have known that the Lagaly children would immediately start across it in order to reach their home; and knew or should have known that the truck was following the bus. Yet, without exerting any effort to ascertain the condition of traffic approaching from the rear, without making any effort to ascertain the proximity of the truck, and without giving the children any warning in respect of the approaching truck, he opened the door and permitted them to alight. Considering all the facts and circumstances in their totality, the jury was warranted in finding that the driver was negligent in the operation of the bus, and that the negligence was a proximate cause of the accident. Machenheimer v. Falknor, 144 Wash. 27, 255 P. 1031; Phillips v. Hardgrove, supra; Pendarvis v. Pfeifer, supra; Krametbauer v. McDonald, 44 N.M. 473, 104 P.2d 900; Reeves v. Tittle, Tex.Civ.App., 129 S.W.2d 364. The statute, supra, authorizes insurance for the purpose of paying damages to persons sustaining injuries proximately caused by the operation of motor vehicles used in the transporting of school children. This is not an action by the person who suffered the injury. It is by the administrator of the estate of the deceased. But no reason is suggested for a legislative purpose to make provision for the protection of one who receives an injury arising out of the operation of a school bus, and at the same time absolve the insurer from any liability in the event of the death of the injured person. There is no basis for the conclusion that the legislature intended to bring about such a harsh and unreasonable result. Taking into account the purpose of the statute, the language contained in it, and the provisions of the policy, we think the policy covers damages for injury arising out of the negligent operation of the bus which results in death, and that the administrator of the estate of the deceased may maintain the action on the policy. Hindel v. State Farm Mut. Auto Ins. Co., 7 Cir., 97 F.2d 777, certiorari denied 305 U.S. 647, 59 S.Ct. 153, 83 L.Ed. 418. Section 12, Article 9, Chapter 34, Laws of Oklahoma 1939, Section 1195k, Title 70, Oklahoma Statutes 1941, provides that the driver of a motor vehicle on a highway or road outside the limits of a city or town shall bring his vehicle to a complete stop before passing a vehicle being used in the transportation of school children which has stopped for the purpose of permitting a child or children to enter or alight from such vehicle, and it provides a penalty for its violation. The driver of the truck knew that the bus ahead was a school bus. He saw it pull over to the shoulder of the highway and stop in order to permit the children to alight. Yet he made no effort to stop. Instead he continued at about thirty miles per hour. The failure to perform a statutory duty imposed under the police power of the state for the protection of the public, or the violation of an express statute for the protection of the public, constitutes negligence. Westlake v. Cole, 115 Okl. 109, 241 P. 809; Midland Oil Co. v. Ball, 115 Okl. 229, 242 P. 161; La Fayette v. Bass, 122 Okl. 182, 252 P. 1101; Comanche Drilling Co. v. Shamrock Oil & Gas Co., 122 Okl. 253, 254 P. 20; Magnolia Petroleum Co. v. Witcher, 141 Okl. 175, 284 P. 297. But unless the injury complained of is the proximate result of the negligence, and the person injured is a member of the class intended to be protected, the negligence is not actionable. Champlin Refining Co. v. Cooper, 184 Okl. 153, 86 P.2d 61; Sinclair Prairie Oil Co. v. Stell, 190 Okl. 344, 124 P.2d 255. This statute was intended to protect school children being transported to and from school. The deceased was within that class. The failure to stop the truck constituted actionable negligence; and the jury was warranted in the conclusion that the negligence was a proximate cause of the accident. The verdict was for $5000, and it is challenged on the ground of being excessive in amount. The deceased was six years of age at the time of his death. He was survived by his father, mother, several brothers, and several sisters. The family lived on a farm, and the deceased did such chores and rendered such aid as are usually done by a child of that age. He was intelligent, made good grades in school, and was faithful and obedient. When attacked on this ground, a verdict should not be disturbed on appeal unless it is so plainly excessive as to suggest that it was the result of passion or prejudice on the part of the jury. Lakeview, Inc., v. Davidson, 166 Okl. 171, 26 P.2d 760; Hale-Halsell Co. v. Webb, 184 Okl. 589, 89 P.2d 273. The amount of damages properly recoverable in a case of this kind is incapable of exact mathematical demonstration. It is a matter of reasonable approximation having its basis in a proper consideration of all relevant factors. In Hale-Halsell Co. v. Webb, supra, a verdict of $6000 for the death of a girl four years of age was sustained. In Lakeview, Inc., v. Davidson, supra, recovery of $8000 for the death of a boy five years of age was upheld. And in Kurn v. Youngblood, Okl.Sup., 142 P.2d 983, an award of $10,000 for the death of a boy fifteen years of age was approved. Our course chartered by these cases, we cannot say that this verdict was excessive. The court included in the judgment the sum of $450 for funeral expenses, without having submitted the matter to the jury. Challenging that action, it is contended that the parties agreed at the pretrial conference that $450 was a reasonable sum for funeral expenses but did not agree that plaintiff had actually been out that much, and that proof was not waived.' But to this we cannot assent. The proceedings at the pre-trial conference amounted to an agreement of the parties that the sum mentioned should be the amount allowed for funeral expenses in the event of recovery for the death of the deceased. In the light of the agreement, there was no occasion to submit the matter to the jury. The court was well within its rights in including the amount in the judgment, based on the agreement. Delco Light Frigidaire Co. v. Babb, 168 Okl. 207, 32 P.2d 894. Affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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. UNITED STATES v. JACOBS, aka “MRS. KRAMER” No. 76-1193. Argued December 7, 1977 Reargued March 20, 1978 Decided May 1, 1978 Deputy Solicitor General Frey reargued the cause for the United States. On the brief were Solicitor General McCree, Assistant Attorney General Civiletti, William F. Sheehan III, and Jerome M. Feit. Irving P. Seidman reargued the cause and filed a brief for respondent. Per Curiam. The writ of certiorari is dismissed as improvidently granted. 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_state	28	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". MOGIS v. LYMAN-RICHEY SAND & GRAVEL CORP. No. 14182. United States Court of Appeals Eighth Circuit. June 28, 1951. Swenson, Viren & Turner, Omaha, Neb., for the appellant Einar Viren, Omaha, Neb., argued. Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., for the appellee Leo Eisenstatt and Yale C. Holland, Omaha, Neb., argued. Before COLLET and STONE, Circuit Judges, and DELEHANT, District Judge. PER CURIAM. On May 18, 1951, this Court, 189 F.2d 130, affirmed the judgment of the District Court, 90 F.Supp. 251. June 2, 1951, appellant filed a petition for rehearing. Included in the grounds urged in this petition are that “this court erred in oyerruling appellant’s motion to stay the proceedings until a construction of the Nebraska filing statute could be obtained in the courts of the State of Nebraska, and the appellant further urges that the court erred in affirming the action of the district court in dismissing the appellant’s complaint rather than remanding the cause with directions to hold pending decision of the state question in the state court.” Several months before argument and submission of this appeal, appellant filed a motion requesting further time to file his briefs and moving “that the Court not hear and determine this appeal, until a reasonable time has passed, during which a conclusive interpretation by the Nebraska State Courts can be sought on the question of Nebraska law presented to this Court in this appeal.” As an exhibit and part of this motion was attaohed a petition in the District Court of Lancaster County, Nebraska, filed by Albert Tady against the Nebraska State Railway Commission, its officers and members for a declaratory judgment determining the legal duties of the Commission “in respect to the filing of motor carrier rates fixed by the Nebraska State Railway Commission with the Secretary of State of Nebraska and the applicability of Chapter 84 — 901 to Chapter 84-906, to rates fixed and established by the Railway Commission; and that the Court declare the legal effect and validity of the motor carrier rates issued and prescribed by the Nebraska State Railway Commission and purporting to be presently effective but not filed with the Secretary of State of Nebraska; and that in the event the Court should find that Official Motor Vehicle Tariff No. 3, together with its amendments, should be filed by the Railway Commission with the Secretary of State, then in that event,” an order is prayed requiring such filing. In so far as this motion sought “to stay these proceedings pending the determination of another action by the Supreme Court of Nebraska”, appellee moved this Court to “dismiss and overrule appellant’s motion”. This Court denied stay sought by appellant; granted further time for briefs and reassigned the setting of this appeal to the later March 1951 term. The case was then presented and submitted. We think we have no power to grant the stay thus sought. This case is purely one at law seeking a personal judgment for money. Only in “exceptional cases,” Meredith v. Winter Haven, 320 U.S. 228, 234, 64 S.Ct. 7, 11, 88 L.Ed. 9, is it not the duty of federal courts “to decide questions of state law whenever necessary to the rendition of a judgment” (same citation). “The exceptions relate to the discretionary powers of courts of equity,” 320 U.S. at page 235, 64 S.Ct. at page 11. Had we power to suspend or stay decision here (in some proper form and upon suitable terms) we would be inclined so to do. Because of lack of power as to this ground for rehearing and for lack of merit in the other grounds presented in the petition, the petition for rehearing is Denied. 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_r_stid	21	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 a respondent. Elaine Jean STEMPLE, by her father, and next friend, Rosswell C. Stemple, Appellant, v. The BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY; Norman H. Saunders; A. James Golato; Lesley Kreimer; Sue V. Mills; Maureen K. Steinecke; Chester E. Whiting; Susan B. Bieniasz; Jo Ann T. Bell; Bonnie F. Johns, Christine A. Dant, Individually and as members of the Board of Education of Prince George’s County and State Board of Education of The State of Maryland; Richard Schifter, William Sykes, Mary Elizabeth Ellis, William M. Goldsborough, Joanna T. Goldsmith, Albertine Thomas Lancaster, Lawrence A. Miller, Charles E. Thompson, G. George Asake, Individually and as members of the State Board of Education of the State of Maryland, Appellees. No. 79-1208. United States Court of Appeals, Fourth Circuit. Argued March 3, 1980. Decided May 27, 1980. As Amended on Denial of Rehearing and Rehearing In Banc Aug. 18, 1980. Donald N. Bersoff, Baltimore, Md. (Susan P. Levitón, Baltimore, Md., on brief), for appellant. Ellen M. Heller, Asst. Atty. Gen., Baltimore, Md. (Stephen H. Sachs, Atty. Gen., of Maryland, Baltimore, Md., James J. Mingle, Asst. Atty. Gen., Paul M. Nussbaum, Mount Rainier, Md., and Richard C. Daniels on brief), for appellees. Before WINTER, BUTZNER and PHILLIPS, Circuit Judges. WINTER, Circuit Judge: Plaintiff, by her father, sued the Board of Education of Prince George’s County, Maryland (the County), the Maryland State Board of Education (the State) and, in their individual and official capacities, the persons comprising both bodies to obtain a reimbursement for the tuition cost of her private education. Deeming the proffered educational program in the public schools inadequate for her needs, her parents withdrew her from the public schools and enrolled her in a private school for handicapped children. Plaintiff also challenged the state regulation assigning the burden of proof in state administrative proceedings, in which she contested the adequacy of the public program and the appropriateness of her school assignment. The district court dismissed the complaint, Stemple v. Board of Ed. of Prince George’s County, 464 F.Supp. 258 (D.Md.1979), and plaintiff appealed. We affirm, albeit for reasons different from those assigned by the district court. I. Plaintiff is a multi-handicapped adolescent girl with a long history of physical and emotional disabilities. Since she has attended school, the County and her parents have recognized that she needed special educational training. From 1969 until January, 1976, she was afforded such training by the County and her parents voiced no formal objection to her placement. During that period, she was taught for the entire school day in the small group setting of special education classes. In January, 1976, the County decided to place her in a normal classroom setting for part of the school day to assist her in developing socialization skills with her peers. By May, 1976, plaintiff’s parents concluded that she was not progressing scholastically or emotionally. They therefore withdrew her from public school and placed her in a private non-residential school for handicapped children, located in Alexandria, Virginia. She was a student there until September, 1978, until, after lengthy but cooperative negotiations with the County as to the educational program that plaintiff would pursue, plaintiff was re-enrolled in the public schools. On June 18,1976, plaintiff, by her father, asked the County for tuition reimbursement for her private schooling contemplated for the 1976-77 school year. Her request was pursuant to a state law providing that the cost of a nonpublic school education shall be paid by local authorities of the child’s domicile and by the state when the child needs special educational services not provided in a public program. See Ann.Code of Md., Art. 77, § 106D(g). The request was denied in August, 1976. Plaintiff took an appeal, but not until May 27, 1977. A hearing on her appeal was held by the County on August 19, 1977. The hearing officer found that the County could provide plaintiff with an appropriate education in its public schools for the 1976-77 school year and that there was not sufficient evidence to justify her placement in a private school. Exercising her statutory right to further review, plaintiff appealed the hearing officer’s decision to the Maryland State Department of Education Hearing Review Board (the State Hearing Board). See Ann. Code of Md., Art. 77, § 100A. Her appeal was heard on February 17, 1978, and the State Hearing Board’s decision was rendered on February 28, 1978. The Board decided that plaintiff “manifests learning needs for which appropriate services can be provided by the Prince George’s County Public Schools,” and it recommended that she “be returned to the appropriate school within Prince George’s County where the support services needed are available.” Its findings were directed only to the school year 1976-77 for it deemed itself without jurisdiction to consider funding for May and June, 1976, and the 1977-78 school year. In the hearing before the State Board, plaintiff sought a ruling that the County bore the burden of proof with regard to the appropriateness of her placement. The requested ruling was contrary to Bylaw 13.-04.01.21(B)(6)(h) of the Maryland State Department of Education, which assigns to the party proposing any placement change the initial responsibility to present evidence supporting its appropriateness and places the ultimate burden of proving or disproving appropriateness upon the student’s parents, except where school officials do not propose placement in a free educational program. Although the Board ruled at the hearing that it was bound by the bylaw, its decision recited that all of the evidence of all parties had been considered and stated, “[t]his decision is based solely on the evidence and testimony made available for review and the additional testimony and evidence presented at the hearing.” Plaintiff then instituted this action asserting jurisdiction under § 615 of the Education for All Handicapped Children Act of 1975 (EHCA), 20 U.S.C. § 1415, and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Section 615 of EHCA had been enacted by Pub.L. 94-142 on November 29, 1975, but it became effective on October 1, 1977, while plaintiff’s appeal was pending before the State Hearing Board but after the occurrence of the operative events challenged in the appeal. Plaintiff sought judicial review of both the substantive result and the procedural fairness of the administrative denial of tuition reimbursement. With regard to procedural fairness, plaintiff sought a ruling that, notwithstanding the Maryland bylaw, the burden of persuasion throughout the administrative proceedings should be on the County and State and not on her, and that, in the proceeding before the State Hearing Board, the State wrongly introduced a written report which she had had no prior opportunity to examine. The district court granted a motion to dismiss filed by the defendants. It ruled that plaintiff could not obtain judicial review under § 615 of EHCA because the challenged administrative proceedings concern reimbursement for a period prior to the effective date of EHCA. It ruled also that the challenged bylaw did not infringe § 504 of the Rehabilitation Act, and that it was unnecessary for it to rule on the admission of the challenged written report since plaintiff sought money damages from the state and such a claim was barred by the Eleventh Amendment. See Stemple v. Board of Ed. of Prince George’s County, supra. II. In plaintiff’s appeal, her principal contention is that the district court was in error in ruling that § 615 of EHCA was unavailable to permit substantive and procedural review of the state administrative proceedings. She argues that she sought review to vindicate rights theretofore granted in federal and state statutes, not the creation of those rights; and therefore she seeks no retrospective application of § 615. In any event, she contends further, retroactive application of § 615 would be proper under Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). Her remaining contentions are that, in the administrative proceedings, the burden of proof was improperly placed on her, and the Maryland bylaw with respect to burden of proof violates federal law. She also asserts that her claim for tuition reimbursement is not barred by the eleventh amendment. As we view plaintiff’s appeal, we need not decide any of the issues that she seeks to raise. Her case reaches us in the posture that the sole ultimate issue to be decided is her claim to tuition reimbursement either for the school year 1976-77 or for the entire period that she attended the private school. She has voluntarily returned to public school; thus any contentions about the burden of proof in administrative proceedings or the effect of the eleventh amendment in the context of this case are real issues only to the extent that they affect her right to reimbursement. By the language of § 615, if it is assumed to be applicable here, we think that plaintiff has no right to reimbursement, and that there is thus no need to decide the various issues that she seeks to raise. We elaborate on our conclusion that plaintiff cannot obtain tuition reimbursement under § 615 in what follows. III. The EHCA of which § 615 is a part was a further strengthening and amendment of title VI of the Elementary and Secondary Education Act, Pub.L. 89-750, first enacted in 1966. The 1966 legislation was passed to create the Bureau of Education for the Handicapped which was intended to provide strong administrative support and leadership for existing programs for the education of handicapped children. The 1966 legislation was first amended on April 13,1970, by the enactment of Pub.L. 91-230. The 1970 amendment created a separate act, the Education of the Handicapped Act, and, inter alia, authorized grants to the States to assist them in initiating, expanding, and improving programs for the education of handicapped children. A second amendment to the basic 1966 legislation was enacted in 1974 by Pub.L. 93-380, entitled the Education of the Handicapped Amendments of 1974. The 1974 legislation extended Title VI for 3 years, increased federal spending and authority, and added state eligibility requirements to bolster “the steadfast Federal commitment to the education of all handicapped children.” H.Rep.No. 93-805, 93rd Cong. 2d Sess., U.S.Code Cong, and Admin.News, pp. 4093, 4137 (1974). The 1975 enactment with which we are most concerned was intended “to establish in law a comprehensive mechanism which will insure that those provisions enacted during the 93rd Congress [the 1974 legislation] will result in maximum benefits to handicapped children and their families.” S.Rep. 94-168, 94th Cong. 1st Sess., U.S. Code Cong, and Admin.News, pp. 1425,1430 (1975). Congress explicitly recognized that court action and state laws throughout the nation had made clear that the right to education of handicapped children “is a present right.” Id. at 1441. Of course, a principal purpose of the 1975 enactment was to pump more money into the local school systems to enable them to meet the requirements imposed upon them by earlier laws, but, inter alia, the bill required the states to establish procedures for consultation with individuals concerned with the education of handicapped children and procedures to monitor the states’ compliance with the requirements of law, to upgrade classification procedures for identifying handicapped children, and to establish procedural safeguards for parents to contest decisions regarding the identification, evaluation and educational placement of handicapped children. Section 615, a totally new enactment, was adopted to achieve the last objective. It accomplishes a number of things. It requires any state, local or intermediate educational agency receiving federal funds to establish and maintain certain minimum procedures. § 615(a). These include: a parent’s right of inspection of relevant records, designation of a surrogate for a child’s parents or guardian if they are not known, written notice and an opportunity to be heard whenever an agency proposes to initiate or refuses to initiate a change in a child’s placement, and a right to an “impartial due process hearing.” § 615(b)(l)-(2). The section provides further that, if the required hearing is conducted by a local or intermediate educational agency or unit, a person aggrieved by the decision shall have a right to appeal to the state educational agency, § 615(c), where he shall have the right to be represented by counsel, to present evidence and confront, cross-examine and compel the attendance of witnesses, to receive a record of the hearing, and to receive written findings of fact and decisions. § 615(d). The decision made in a hearing conducted in accordance with the provisions of § 615 is final subject to the right of appeal, and the decision of a local or intermediate unit (where there is no right of appeal) or the decision of a state educational agency may be reviewed in an action instituted in a state court of competent jurisdiction or a district court of the United States without regard to the amount in controversy. § 615(e)(1) and (2). Significant for our purposes is the further provision of that section, § 615(e)(3): During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents or guardian, be placed in the public school program until all such proceedings have been completed. Section 615(e)(3) has little specific legislative history of its own. It is mentioned only in the Joint Explanatory Statement of the Conference Committee (Sen.Conf.R.No. 94-455; Home Conf.R.No. 94-664, both of the 94th Cong. 1st Sess.), where it is said: The provisions of existing law with respect to the binding effect of due process hearings and appropriate administrative and judicial review of such hearings are clarified and language is also adopted to require that during the pendency of any administrative or judicial proceedings regarding a complaint, unless the State or local educational agency and the parents or guardian of the child otherwise agree, the child involved in the complaint shall remain in his or her present educational placement, or, if the complaint involves an application for initial admission to public school the child shall, with the consent of the parents or guardian be placed in the public school program until the completion of all such proceedings. U.S.Code Cong, and Admin.News, 1503 (1975). Taken literally, the language of § 615(e)(3) creates a duty on the part of parents who avail themselves of the hearing and review provisions of § 615 to keep their child in his current educational assignment while the hearing and review provisions are pending, absent agreement between them and the education authorities that some different arrangement be made. Of course, that duty may not be totally enforceable by the state, but it certainly negates any right on the part of parents, in violation of the duty and in the absence of agreement, to elect unilaterally to place their child in private school and recover the tuition costs thus incurred. To the extent that we can discern legislative intent from overall consideration of the 1975 act and its forebears and the brief, specific reference to § 615(e)(3) in the legislative history, we think that the statute should be given the literal effect we have described. By enactment of the 1975 legislation, Congress was assuming major control and major financing of the national program of education of handicapped children. As part of that effort, Congress was providing for the strengthening and upgrading of evaluation procedures and it enacted a generous bill of rights for parents, guardians, and surrogates of handicapped children who might wish to contest the evaluation and placement policies of educational authorities. There would be reason and design in saying that while the procedures for administrative hearing, administrative review and judicial review mandated by Congress were being employed, the status quo should be preserved unless it was altered by consent. The concept of preserving the status quo even including the payment of benefits (see, e. g., Longshoremen’s and Harbor Workers’ Compensation Act § 21(b), 33 U.S.C. § 921(b), pending litigation at the administrative and judicial level until an ultimate resolution is reached is a familiar one in American law. For example, under Rule 65, F.R.Civ.P., courts will ordinarily refrain from issuing preliminary injunctions which threaten to disturb the status quo and they will frame any equitable relief to preserve the last uncontested status between the parties which preceded the controversy until the outcome of the final hearing. 11 Wright and Miller, Federal Practice and Procedure § 2948, at 464-66. Thus we think that the statute means just what it says; and since there was a duty not to move plaintiff until a final decision, plaintiff is lacking in any right to recover tuition payments for her parents’ unilateral decision to send her to a private school while she was seeking redress for the claimed violation of her rights. Plaintiff contends that § 615(e)(3) is inapplicable to her, because her parents' decision to send her to a private school was made before the administrative and appeal provisions of § 615 were initially invoked. We reject this contention. It places too restricted a reading on § 615(e)(3). We do not think that the application of § 615(e)(3) depends upon the fine distinction between whether proceedings under § 615 are initiated before or after the duty to preserve the status quo is breached. The duty, it seems to us, arises as soon as school authorities make a decision as to identification, evaluation and placement of a handicapped child and continues until a decision not to contest it is reached or, if a contest ensues, until that contest is finally determined. In summary, we do not decide plaintiff’s several contentions. We decide only that if plaintiff is entitled to avail herself of the remedies in § 615 (a question we also do not decide), they will avail her nothing with regard to reimbursement of tuition expense. Her subsidiary contentions have become moot since she voluntarily returned to public school. AFFIRMED. Question: What is the state of the first listed state or local government agency that is a respondent? 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_juryinst	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" 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". Earl W. KINTNER et al., Appellants v. Oliver W. TOLL, Appellee. Nos. 15324, 15325. United States Court of Appeals District of Columbia Circuit Argued Jan. 18, 1960. Decided March 3, 1960. As Amended June 29, 1960. Mr. Walter J. Bonner, Asst. U* S. Atty., at the time of argument, with whom Messrs. Oliver Casch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellants. Mr. Oliver W. Toll, appellee pro se. Before Bazelon, Danaher and Bastían, Circuit Judges. PER CURIAM. The pertinent background of this suit for declaration of re-employment rights under § 15 of the Veterans’ Preference Act, 58 Stat. 391, 5 U.S.C.A. § 864, and for restoration of Government employment is set forth in our opinion upon a former appeal, Toll v. Gwynne, 1957, 101 U.S.App.D.C. 175, 247 F.2d 581, certiorari denied, 1958, 355 U.S. 926, 78 S.Ct. 383, 2 L.Ed.2d 356. There we reversed a summary judgment against the plaintiff on the ground that it did not appear "beyond genuine issue, that, while [plaintiff’s] name was on the re-employment list, no new employee, other than a ten-point veteran, was hired; or that, if a new employee was hired, the list did not have three names on it at the time.” 101 U.S.App.D.C. at page 176, 247 F.2d at page 582. On remand, additional facts were developed by deposition and interrogatories which made clear that new employees other than ten-point preference eligibles were hired during the period in question. However, the defense shifted to a new ground. It urged that the supplemented record also showed that the employing agency had a separate re-employment list for each geographical region; hence, two preference eligibles reduced in force from the Chicago area were not to be included in the Washington area list, applicable 1o plaintiff. On that basis the Washington list would never have contained three or more names of preference eligibles during the period in question. On cross motions, the District Court granted summary judgment in favor of plaintiff without indicating its reasons and without specifying the relief. The court thereafter amended the judgment, on plaintiff’s motion, specifying relief by way of restoration of employment with attendant rights. Defendants brought these separate appeals from the original and amended judgments. Appellee contends that the system of maintaining geographical re-employment lists is not authorized by law; and, in any event, the present appellants should not be permitted to rely on this new defense because it rests on alleged facts which presumably were always known to them and constitutes a repudiation of the single re-employment list which they relied upon in the prior appeal in this case. Assuming arguendo that a system of geographical re-employment lists may be authorized by law, the manner in which the system was maintained over the period in suit assuredly left something to be desired. In any event, the application of the practice, right or wrong, in the circumstances of this case should not thus belatedly be available to deprive the appellee of his status. Accordingly we conclude that the new defense based on separate geographical employment lists must fail. Affirmed. . The Joint Appendix discloses that there were no rules and regulations “in the broad sense.” “Our board did not operate on the establishment of a formal set of procedures during the time in question.” “We worked as * * * an informal board” making “auxiliary ratings” on “pieces of yellow paper and white paper and scraps.” A change to the card system with its essential data was not made until 1955. Question: Did the court conclude that the jury instructions were improper? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed 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. McCARTHY v. UNITED STATES. No. 8721. United States Court of Appeals District of Columbia. Argued Oct. 16, 1944. Decided Nov. 6, 1944. Mr. Jerome F. Barnard, of Washington, D. C. (appointed by District Court) for appellant. Mr. John P. Burke, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, and Charles B. Murray, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee. Before MILLER, EDGERTON and ARNOLD, Associate Justices. PER CURIAM. Defendant was convicted for forging a check issued by the Washington Terminal Company of Washington, D. C. After examining the evidence we believe that the court should have directed a verdict of not guilty at the close of the case. The only direct testimony on the alleged forgery by the defendant is that of a handwriting expert who admitted there were many dissimilarities between the defendant’s handwriting and the endorsement on the check. The expert said that but for the single letter “J” in “Jack” on the check he would not have been there to testify. To support this inconclusive handwriting testimony the prosecution relied on circumstantial evidence, all of which was based on very doubtful inferences. It showed (1) that the defendant was one of a number of persons who might have stolen the check from the Washington Terminal Company; (2) that he was one of a number of persons who might have cashed it; (3) that defendant’s wife was seriously ill and he needed money badly; (4) that after his wife’s death he left Washington for his sister’s home in Cincinnati, later going to Colorado, notifying both his draft board and the post office of his change of address. His necessitous circumstances were relied on as showing motive. In spite of the fact that there is no evidence that he knew he was even suspected of the crime when he left, his departure to visit his sister was used before the jury to show consciousness of guilt. While we do not assert that handwriting testimony by itself may not in some cases be sufficient to sustain a conviction of forgery, we think that the record in this case throws too much doubt on defendant’s guilt to sustain a verdict. Reverse4 and remanded. 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	C	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. Marie E. WEST, individually and on behalf of all others similarly situated v. Louis W. SULLIVAN, individually and in his capacity as Secretary of the United States Department of Health and Human Services; Edward R. Madigan, individually and in his capacity as Secretary of the United States Department of Agriculture; Walter W. Cohen, individually and in his capacity as Secretary of the Pennsylvania Department of Public Welfare; and Don Jose Stovall, individually and in his capacity as Executive Director of the Philadelphia County Assistance Office, Marie E. West, individually and on behalf of the class she represents, Class B, Appellant. No. 91-1570. United States Court of Appeals, Third Circuit. Argued Feb. 4, 1992. Decided Aug. 17, 1992. As Amended Aug. 25, 1992. Rehearing Denied Sept. 14, 1992. Peter D. Schneider, George D. Gould, Community Legal Services, Philadelphia, Pa., David A. Super, (argued), Food Research & Action Center, Washington, D.C., for appellant. Michael M. Baylson, U.S. Atty., Office of U.S. Atty., Philadelphia, Pa., Stuart M. Ger-son, Asst. Atty. Gen., Anthony J. Stein-meyer, U.S. Dept, of Justice, Civ. Div., Appellate Staff, Constance A. Wynn (argued), U.S. Dept, of Justice, Appellate Section, Washington, D.C., for Appellees Sullivan and Madigan. Michael L. Harvey (argued), Office of Atty. Gen. of Pa., Dept, of Justice, Harrisburg, Pa., for appellees Cohen and Stovall. Before: BECKER, ROTH, Circuit Judges, and McCUNE, District Judge. . Honorable Barron P. McCune, United States District Court Judge for the Western District of Pennsylvania, sitting by designation. OPINION OF THE COURT ROTH, Circuit Judge. Appellant Marie West and a class of similarly-situated plaintiffs (collectively West) seek to overturn a district court decision which potentially reduces certain of their benefits under the Food Stamp Act, 7 U.S.C.A. §§ 2011 et seq. (1988 & Supp. 1992). Specifically, West challenges a policy adopted by Appellee Edward Madigan, Secretary of the Department of Agriculture (USDA), that would prevent her from factoring a standard deduction for utility costs into her food stamp benefit calculation. Her claim forces us to interpret potentially competing provisions of the Food Stamp Act and the United States Housing Act, 42 U.S.C.A. §§ 1437 et seq. (1978 & Supp.1992), encompassing a dizzying array of acronyms and regulations. For the reasons that follow, we will deny West’s claim and affirm the order of the district court dismissing her supplemental complaint. I. In August, 1984, West filed a complaint in the Eastern District of Pennsylvania challenging the Secretary of Health and Human Services’ (HHS) rejection of her application for social security benefits. While her claim was pending, West amended the complaint to include class action claims under the Food Stamp Act against the Secretary of the USDA and officials of the Pennsylvania Department of Public Welfare (DPW) (collectively USDA). The district court certified two plaintiff classes, only one (Class B) of which is relevant to our disposition of this case. Class B is composed of “all Pennsylvania residents of public housing authority units whose food stamp allotments have been or will be reduced because of the treatment as income of a utility allowance or utility rebate from a public housing authority.” In other words, Class B challenged the inclusion in income of certain monthly stipends known as “utility rebates” received from the United States Housing Authority to aid in the payment of energy costs. All Class B members were recipients of utility rebates. The district court granted West’s motion for summary judgment on her individual benefit claim and denied the claims of both classes. This court reversed the district court’s treatment of Class B, holding that utility rebates are not income for purposes of food stamp calculations. West v. Bowen, 879 F.2d 1122 (3d Cir.1989). After West was decided, the USDA implemented a policy denying Class B members (those receiving utility rebates under the Housing Act) use of a “standard utility allowance” (SUA) in the calculation of their benefits under the Food Stamp Act. On October 9, 1990, West filed a supplemental complaint challenging this policy; the supplemental complaint forms the basis for the present appeal. The USDA moved to dismiss the supplemental complaint on the merits and for lack of standing. West filed a cross-motion for summary judgment. On April 3, 1991, the district court upheld West’s standing to challenge the USDA’s policy regarding the use of the SUA but dismissed the supplemental complaint on the merits. West’s motion for reconsideration was denied, and this appeal followed. II. This case involves two federal statutes, the Food Stamp Act and the United States Housing Act. A. Food Stamp Act (7 U.S.C.A. §§ 2011 et seq.). The Food Stamp program is administered nationally by the USDA, which must promulgate rules establishing uniform standards of eligibility for food stamp applicants, 7 U.S.C.A. §§ 2014(b), 2013(c) (1988). State agencies such as the Pennsylvania Department of Public Works (DPW) implement the Food Stamp program locally- Food stamps are available to households meeting specific income requirements. 7 U.S.C.A. §§ 2014, 2015 (1988 & Supp.1992). Household income for food stamp purposes is calculated by subtracting certain household expenditures from total household receipts. Income includes “income from whatever source.” 7 U.S.C.A. § 2014(d) (1992). Nonetheless, certain monies guaranteed to be used for non-food expenses may be excluded or deducted from total household receipts. Id. For instance, households may “exclude” federal energy assistance payments from income. 7 U.S.C.A. § 2014(d)(ll) (1992). Households may “deduct,” inter alia, medical and dependent care expenses, as well as so-called “excess shelter expenses.” 7 U.S.C.A. § 2014(e) (1988 & Supp.1992). Calculation of the deductible excess shelter expense is central to this appeal. An excess shelter expense is the amount by which a household’s monthly shelter costs exceed half of the household’s monthly adjusted income (income after all other deductions have been taken). Monthly shelter costs include rent or mortgage fees, certain property taxes, and utility costs. 7 C.F.R. § 273.9(d)(5) (1992). To ease the determination of total monthly shelter costs, state agencies may authorize substitution of a “standard utility allowance” (SUA) for a household’s actual utility costs in certain circumstances. 7 U.S.C.A. § 2014(e) (sentences 5-13). At minimum, to qualify for the SUA, households must “incur heating and cooling costs separately and apart from their rent or mortgage.” 7 C.F.R. § 273.9(d)(6)(h) (1992). In other words, households eligible for the SUA are those directly billed for energy consumption, rather than those which pay for energy costs as part of their rent. Households which do not claim the SUA employ actual utility costs in computing their monthly shelter estimate. 7 U.S.C.A. § 2014(e) (sentence 12). See 7 C.F.R. § 273.2(f) (1992). Pennsylvania has established an SUA which eligible households may use in computing utility costs. See 55 Pa.Code § 501.7 (1992). The USDA has encouraged states to set the SUA at a “liberal” level — higher than the average household’s utility cost — to foster use of the SUA and thus reduce paperwork for the applicant and the administrating agency. See 131 Cong.Rec. 31, 296 (Nov. 12, 1985) (comments of Senator Boschwitz: standard utility allowances “ease administrative complexity,” and therefore the “States have set the standard utility allowance somewhat higher than the average utility expenses so they don’t have to deal with actual expenses.”). See also H.R.Conf.Rep. No. 447, 99th Cong., 1st Sess. 526, reprinted at 1985 U.S.Code Cong. & Admin.News 1103, 2251, 2452 (SUAs are “designed to encourage efficient administration of the food stamp program”). The size of the SUA has a large impact on food stamp allotments. A “liberal” SUA is likely to increase an applicant’s shelter costs, widening the difference between those costs and 50% of adjusted income. This increases the amount of the excess shelter deduction. An increased excess shelter deduction shrinks income and thus augments food stamp benefits. B. United States Housing Act (42 U.S.C.A. §§ 1437 et seq.). Residents of Public Housing Authority (PHA) buildings pay a fixed “contract” rent of no more than 30% of adjusted gross income. 42 U.S.C.A. § 1437a(a)(l)(A) (1992); 24 C.F.R. § 960.404 (1992). Contract rent includes reasonable utility costs. See Wright v. Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 420 & n. 3, 107 S.Ct. 766, 769 & n. 3, 93 L.Ed.2d 781 (1987). Since 1981, utilities consumed by tenants in PHA-owned or leased buildings have been “individually metered,” that is, billed to each household apart from the rent. 24 C.F.R. § 965.401. Residents thus pay utility bills directly to the utility provider. Each month, residents of individually-metered apartments are allotted a public housing utility allowance (PHUA) to be credited toward payment of the contract rent. The PHUA is based on the average reasonable monthly utility cost for households in the area over the course of a year. 24 C.F.R. § 965.470, 475, 476(a). Unlike PHA rent, the PHUA is not tied to the resident’s income. PHA residents are responsible for payments, which include utility costs, totalling the 30% contract rent figure. The PHUA amount is credited toward the 30% figure, and the resident must pay as “rent” only the difference between the PHUA and the contract rent. Thus, a household with rent of $50 (implying income of $166), and a utility allowance of $30, must pay $20 to the PHA monthly. In contrast, households with a rent which is less than the PHUA receive a “utility rebate” each month, representing the difference between the household’s contract rent and the PHUA. The household is again responsible for mustering the amount of the contract rent, but where the contract rent is less than the PHUA, the household pays no “rent.” Thus, a household with rent of $20, and a PHUA of $30, will receive a monthly check for $10 — a utility rebate — from the PHA. This check, along with the $20 not paid in rent, is assumed by the USDA to go toward utilities. All Class B members fall into this category, as the class is defined to include only those receiving utility rebates (a smaller group than those receiving utility allowances). Sometimes the utilities bill is higher than the PHUA. Residents must absorb the amount of any utility bill which is above the allowance. By the same token, residents may effectively pocket any amount of the utility allowance conserved if the actual bills are less than the PHUA. The PHUA is supposed to encourage efficient use of energy, but for those who live in poorly insulated buildings, the allowance is not always enough. See West, 879 F.2d at 1129 n. 8. Utility rebates generally only go to the poorest of public housing residents, as those with the lowest income are most likely to have contract rent below the PHUA. In this case, for example, West stated that her rent is approximately $53 per month (implying income of $177). She receives a PHUA of $152 per month and is therefore mailed a monthly utility rebate of $99 ($152-$53). This amount, together with the $53 for which she is responsible, go toward her utilities costs, which range up to $154 per month. West, 879 F.2d at 1130 n. 9. C. Synthesis of the two acts. Housing Act payments, as with assistance received under many federal programs for the poor, affect the calculation of benefits under the Food Stamp Act. Until this court’s decision in West v. Bowen, supra, the USDA considered public housing utility rebates income to the recipient. This resulted in lower food stamp benefits for those receiving the rebates. In West, we held that the PHUA utility rebates (not the entire utility allowance) were “energy assistance,” to be excluded from income under § 2Q14(d)(ll) of the Food Stamp Act. West, 879 F.2d at 1132. This court’s designation of rebates as energy assistance had consequences, perhaps unforeseen, for West’s ability to claim the SUA under the Food Stamp Act. Pri- or to West, West and her class of PHUA utility rebate recipients were apparently eligible to claim the SUA in calculating monthly food stamp benefits. This is because they were billed separately for utilities, an important component of eligibility for both the SUA and the PHUA. Under the Food Stamp Act, however, eligibility for the SUA is affected by the receipt of energy assistance payments. Households receiving certain kinds of energy assistance are treated differently than those who receive no energy assistance. After this court declared PHUA rebates “energy assistance” instead of “income,” the USDA began calculating West’s food stamp benefits under a different formula. Under the new formula, West must not only be separately billed for her utilities, she must also incur “out-of-pocket” costs (a term disputed by the parties) to claim the food stamp SUA in her excess shelter calculation. In imposing the extra out-of-pocket cost requirement, the USDA relies on language contained in the Food Stamp Act, 7 U.S.C.A. § 2014(e), which distinguishes recipients of energy assistance from other food stamp applicants for the purposes of claiming the SUA: If a State agency elects to use a standard utility allowance that reflects heating or cooling costs, it shall be made available to households receiving a payment, or on behalf of which a payment is made, under the Low-Income Home Energy Assistance Act of 1981 (42 U.S.C.A. §§ 8621 et seq.) or other similar energy assistance program, provided that the household still incurs out-of-pocket heating or cooling expenses. 7 U.S.C.A. § 2014(e) (sentence 8) (emphasis, added). The Low-Income Home Energy Assistance Act (LIHEAA) is a federal program dedicated to providing heating and cooling assistance to households receiving government support in the form, inter alia, of food stamps or aid to families with dependent children; or to households with income near the state poverty level. See 42 U.S.C.A. § 8624(b)(2) (1983 & Supp. 1992). Though the .language of § 2014(e) appears to be quite broad, Congress restricted the scope of the provision in 1986, two years after it was adopted, to exempt all LIHEAA recipients from the out-of-pocket cost requirement. See 52 Fed.Reg. 5435 (Feb. 23, 1987) (energy expenses covered by LIHEAA are deemed to be “out-of-pocket,” whether received directly or through a vendor); Pub.L. No. 99-425, § 504(e), 100 Stat. 975 (1986). The language of § 2014(e) was not altered to effect this change, however; only LIHEAA and the regulations relating to § 2014(e) were amended. Thus, though § 2014(e) includes reference to LIHEAA payments, the out-of-pocket cost requirement now applies only to those households receiving energy assistance under programs “similar” to LI-HEAA. The parties contest whether a PHUA rebate is energy assistance “similar” to LIHEAA for the purposes of the out-of-pocket cost requirement. III. West challenges the applicability of the out-of-pocket cost requirement in § 2014(e) to energy assistance payments received directly from the Public Housing Authority in the form of utility rebates. She contests two aspects of § 2014(e): its applicability to households receiving direct, as opposed to vendor or indirect, energy assistance payments such as the PHUA rebate; and, if § 2014(e) applies to direct payments, the definition of “out-of-pocket” costs and the “similarity” of her energy assistance payments to those authorized by LIHEAA. West initially argues that the out-of-pocket requirement in § 2014(e) applies only to recipients of indirect funding — households whose energy assistance is routed directly to the utility vendor. For this argument she relies strongly on the federal regulations adopted to implement § 2014(e). Alternatively, relying on the language of § 2014(e) itself, West argues that PHUA rebates are not “similar” to LIHEAA payments, and therefore that § 2014(e) is not applicable to her. Finally, she posits that, even if § 2014(e) is applicable to her, she has incurred out-of-pocket costs (entitling her to claim the SUA) simply because she is separately billed for her utilities and must pay the bills herself. The USDA contends, first, that § 2014(e) applies to all recipients of energy assistance not excepted by other statutory provisions; second, that PHUA rebates are nearly identical to LIHEAA payments, thus bringing West and her class within the reach of § 2014(e) and the out-of-pocket cost requirement; and finally that West has not incurred “out-of-pocket” costs, thereby eliminating her eligibility for the SUA, because under the USDA’s definition of “out-of-pocket” she must show that her utility expenses exceed her PHUA. Stating that West’s class did not have the right to receive utility rebates, only the right not to have those rebates counted as income, the district court upheld the USDA’s construction of § 2014(e) and the agency’s application of the out-of-pocket cost limitation to West’s food stamp calculation. West v. Sullivan, No. 84-3883, typescript at 2 (E.D.Pa. Apr. 30, 1991). The court did not address the distinction between direct and indirect energy assistance raised by West. In this ease the district court had federal question jurisdiction under 28 U.S.C.A. §§ 1331 and 1337 (1992), and we have jurisdiction to review the court’s final order dismissing the complaint under 28 U.S.C.A. § 1291 (1992). Our review of the dismissal of a complaint for failure to state a claim is plenary. McArdle v. Tronetti, 961 F.2d 1083, 1084 n. 1 (3d Cir.1992); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990). An agency’s construction of its statutory mandate is entitled to a certain degree of deference. Under the Supreme Court’s Chevron test, see Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), courts reviewing agency action confront two questions. The first is whether Congress has spoken directly to the question at issue: “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. at 2781. Where the statute is silent or ambiguous as to the specific issue, however, “the [second] ques tion for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. (emphasis added). See NLRB v. New Jersey Bell Tel. Co., 936 F.2d 144, 147 (3d Cir.1991) (citing Chevron ); FLRA v. U.S. Dept. of Navy, 966 F.2d 747 (3d Cir.1992) (in banc) (same). In this endeavor we may draw not only on the language of the statute but on the legislative history, the agency regulations adopted to implement the statute, and the agency comments made with respect to the regulations. The agency’s interpretation need not be the only reasonable one. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). See also West, 879 F.2d at 1124. A. We look first, then, to the plain language of the Food Stamp Act, to see whether Congress has directly addressed the relationship between energy assistance and the SUA. Section 5(e) of the Food Stamp Act, 7 U.S.C.A. § 2014(e), contains fifteen sentences, of which eight relate to the SUA. For context, we include six of the sentences below, broken apart and numbered by sentence (the provisions run back-to-back and unnumbered in the formal text). West challenges the agency’s interpretation of sentence 8. Sentence 5. In computing the excess shelter expense deduction ..., a State agency may use a standard utility allowance in accordance with regulations promulgated by the Secretary ... Sentence 6. An allowance for a heating or cooling expense may not be used for a household that does not incur a heating or cooling expense, as the case may be, or does incur a heating or cooling expense but is located in a public housing unit which has central utility meters and charges households, with regard to such expense, only for excess utility costs. Sentence 7. No such allowance may be used for a household that shares such expense with, and lives with, another individual not participating in the food stamp program, another household participating in the food stamp program, or both, unless the allowance is prorated between the household and the other individual, household, or both. Sentence 8. If a State agency elects to use a standard utility allowance that reflects heating or cooling costs, it shall be made available to households receiving a payment, or on behalf of which a payment is made, under the Low-Income Home Energy Assistance Act of 1981 (42 U.S.C. 8621 et seq.) or other similar energy assistance program, provided that the household still incurs out-of-pocket heating or cooling expenses. Sentence 9. A State agency may use a separate standard utility allowance for households on behalf of which such payment is made, but may not be required to do so. Sentence 10. A State agency not electing to use a separate allowance; and making a single standard utility allowance available to households incurring heating or cooling expenses (other than households described in the sixth sentence of this subsection) may not be required to reduce such allowance due to the provision (direct or indirect) of assistance under the Low-Income Home Energy Assistance Act of 1981. 7 U.S.C.A. § 2014(e) (emphasis added). It seems clear from the language of sentence 8 that recipients of energy assistance are not eligible to claim the SUA without proof of certain costs, specifically “out-of-pocket heating and cooling expenses.” Though sentence 6 does not mention out-of-pocket costs as a condition of SUA eligibility, sentence 6 is directed only to households whose rent includes utilities (excluding West and her class by definition, because they are separately billed), not to those receiving energy assistance payments. Additionally, from the face of sentence 9, households receiving energy assistance may be treated differently from those which do not. Finally, though the drafters of sentence 10 intended to protect households receiving LIHEAA energy assistance from decreased food stamp eligibility, there is no indication that equal treatment under sentence 10 justifies ignoring the out-of-pocket threshold in sentence 8. Notably, in the sentences related to the SUA, there is no apparent distinction between direct and indirect energy assistance, a difference West urges upon us. In fact, the language of § 2014(e) suggests exactly the opposite: sentence 8 applies to “households receiving a payment, or on behalf of which a payment is made.” (emphasis added). In response to the first question under Chevron, then, we note that Congress has directly spoken to the general relationship between energy assistance and the SUA. From the face of § 2014(e), proof of out-of-pocket costs is required for all LIHEAA and “similar” energy assistance recipients to claim the SUA under § 2014(e). B. The real issue then becomes whether PHUA rebates qualify as energy assistance “similar” to LIHEAA, and, if the rebates are similar, whether West has incurred “out-of-pocket” costs. The statute is ambiguous as to both of these puzzles, so for guidance we turn to the legislative history of § 2014(e). Our consideration of the similarity between the PHUA rebate and LIHEAA assistance is clouded by two factors: first, that previous drafts of sentence 8 applied only to LIHEAA recipients, and second, that the USDA, in an apparent change of position, has amended the regulations surrounding § 2014(e) to make the out-of-pocket cost requirement apply to everyone except LIHEAA recipients. The out-of-pocket cost requirement in sentence 8, as originally drafted, applied only to LIHEAA recipients. Neither house of Congress included the “or other similar energy assistance program” language in its conference report, though those words were ultimately enacted as part of the 1985 amendments to § 2014(e). The House Report merely proposed that “A State agency may use one or more standard utility allowances for households on behalf of which a payment is made under [LIHEAP] but who also incur out-of-pocket heating or cooling expenses.” H.R. 2100, 99th Cong., 1st Sess. 400 (1985). The language in the Senate Report was similar: If a State agency elects to use a [SUA], the agency shall use a separate allowance for households receiving assistance under [LIHEAP] and a separate allowance for other households or a combined allowance for all such households. In the case of a [SUA] that applies to households receiving such assistance, such allowance shall reflect utility expenses in excess of such expenses paid, directly or indirectly, under [LIHEAA], S.Rep. No. 145, 99th Cong., 1st Sess. 747 (1985) (amendments as reported out of Senate Agricultural Committee). Congress specifically rejected a limited role for § 2014(e) and the out-of-pocket cost requirement, however, when it added “other similar energy assistance program[s]” to the language of sentence 8. The “other similar energy assistance” language appears in the Conference Report on H.R. 2100, without accompanying comment; it was subsequently enacted as part of § 2104(e). See H.R.Conf.Rep. No. 447, 99th Cong., 1st Sess. 525 (1985), reprinted in U.S.Code Cong. & Admin.News 2251, 2451; 131 Cong.Rec. H12.314 (Dec. 17, 1985). Thus, on a plain reading of the statute, § 2014(e) was intended to affect a group of which LIHEAA participants were only one part. The USDA determined, after this court’s decision in West, that West’s PHUA rebates were energy assistance “similar” to LIHEAA payments for the purposes of § 2014(e). West challenges this determination. She argues that the rebates are not “similar” to LIHEAA because of structural and administrative differences, and thus are excluded from § 2014(e) and the out-of-pocket requirement. This argument is not convincing. Though the programs are administered by different agencies (LIHEAA through the Food Stamp program, PHUA rebates through the Public Housing program), LIHEAA payments are for energy assistance, and, under our decision in West, so too are PHUA rebates. Moreover, this court looked specifically to LIHEAA’s legislative history in support of its holding that the PHUA rebate is a form of energy assistance excludable from income under § 2014(d)(ll). West, 879 F.2d at 1131. West notes that, if Congress had meant in sentence 8 to require out-of-pocket costs from all energy assistance recipients, it could have simply used the phrase “energy assistance,” as it did in neighboring § 2014(d)(ll) (exclusions from income), rather than specifying LIHEAA and “similar” programs. Though this argument has some force, especially in light of the fact that the original version of sentence 8 applied only to LIHEAA recipients, our job is not to second-guess Congress’ turns of phrase, only to review, with deference, the interpretations given to them by the agency. In this case, the agency was faced with statutory language applicable to LI-HEAA and “similar” programs; after our decision in West designating PHUA rebates as energy assistance, the agency decided that a PHUA rebate was “similar” to the payments provided under LIHEAA. From the face of the statute and its legislative history, we cannot find this conclusion unreasonable. Were the question of similarity between PHUA rebates and LIHEAA payments the only interpretive puzzle present in § 2014(e), our review of the agency’s construction of the statute would stop at this point. However, Congress amended LI-HEAA and the agency amended the regulations surrounding § 2014(e) in 1986, so that all recipients of LIHEAA may now claim the SUA, without proof of out-of-pocket expenses. Congress has thus taken LI-HEAA recipients, at whom § 2014(e) was originally aimed, out of the statute. In light of the similarities between LIHEAA payments and PHUA rebates, Congress’ removal of a single program’s payments from the restrictions of the eighth sentence seems arbitrary and throws into question the relatively strict treatment of other federal assistance such as the PHUA rebate. West might have made a strong policy argument that the PHUA rebates and LI-HEAA payments are identical, i.e. both are federal programs providing energy assistance, and thus that the modification permitting LIHEAA recipients to claim the SUA should also apply to recipients of utility rebates. The USDA determined, however, that the broad reach of § 2014(e) was not affected by Congress’ removal of LIHEAA recipients from the out-of-pocket requirement. Specifically, the agency provided that the change to LIHEAA would “not affect current policy with respect to other State or local energy assistance payments or other expenses paid to a third party on behalf of households.” See 52 Fed.Reg. 5435 (Feb. 23, 1987). Though this passage fails to mention that the change to LIHEAA would also leave the policy relating to other federal payments, such as PHUA rebates, untouched, it is unlikely this specific language was meant to exclude the PHUA from the out-of-pocket cost requirement simply by implication. That Congress amended only LIHEAA rather than the language of § 2014(e) itself, might have been an important factor in the USDA’s decision. Thus, as the USDA reads § 2014(e), that section still applies to energy assistance programs similar to LIHEAA, including the PHUA rebate, despite Congress’ later exemption of LIHEAA beneficiaries. Though this is certainly not the only conclusion the agency could have reached, we find this interpretation to be permissible. Finally, West argues that, even if § 2014(e) applies to recipients of PHUA rebates, the agency’s definition of “out-of-pocket” costs as “net” costs is impermissible. She contends that “out-of-pocket” means separate billing, that is, that she be required to make the utility payments herself, not that she be required to make a payment above and beyond the amount of her energy assistance. As noted, the statute on its face does not provide any guidance as to the meaning of “out-of-pocket” costs. From the legislative history discussed below, however, we are comfortable with the agency’s “common sense” interpretation of the term. “Out-of-pocket” costs were central to the Congressional debate over the SUA. Members of Congress expressed concern that energy assistance recipients would be able to make use of the SUA without paying any actual utility costs out of their own pockets. As Senator Dole noted “The [Senate Agricultural] committee provisions attempt to establish equity by simultaneously allowing all LIHEAP recipients who have any utility expenses above the value of LIHEAP assistance the right to claim a standard utility allowance, which may be significantly above their actual expenses.” 131 Cong.Rec. 31,298 (Nov. 12, 1985). Later, he reiterated: “Recipients may still claim a standard utility allowance as long as they pay something toward their heating or cooling bills.” Id. at 31,299. And again: “All we [the Agricultural Committee] did was provide that people should not be eligible for energy expenses unless they incur them, unless they actually pay the money. This is a loophole that should be closed.” Id. In fact, the Senate Agricultural Committee unsuccessfully proposed changes to the Food Stamp Act that would have limited the amount of the SUA to the average amount applicants incurred over and above their utility assistance payments. See S.Rep. No. 145, 99th Cong., 1st Sess. 240 (1985), reprinted in U.S.Code Cong. & Admin.News 1676, 1906 (Report for S. 1714, Agricultural Committee Proposal), rejected in part at 131 Cong.Rec. 33,044 (Nov. 21, 1985) (Stafford Amendment vote). See also 131 Cong.Rec. 31,298 (Nov. 12, 1985) (comments of Sen. Dole regarding the unsuccessful Senate proposal: “standard utility allowances, which reflect average utility expenses instead of using each recipient’s actual utility bills, must reflect only actual ‘out of pocket’ expenses — not any Federal energy assistance payments received by the household.”). 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_judgdisc	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. 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". Freeman M. COOPER, Plaintiff-Appellant, v. WILLIAMSON COUNTY BOARD OF EDUCATION and Administrative Unit of Williamson County, Tennessee and Kenneth L.M. Fleming, Superintendent of Schools of Williamson County, in his individual and official capacity, Defendants-Appellees. Nos. 85-6150, 86-5879. United States Court of Appeals, Sixth Circuit. Argued Feb. 9, 1987. Decided June 2, 1987. Rehearing and Rehearing En Banc Denied July 22,1987. See also, D.C., 587 F.Supp. 1082. Robert Belton, argued, Harvard Law School, Cambridge, Mass., and Richard Manson, Manson, Jackson and Associates, Nashville, Tenn., for plaintiff-appellant. Robert G. Wheeler, Jr., argued, Brown, Brown and White, Nashville, Tenn., for defendants-appellees. Before MARTIN, WELLFORD and NELSON, Circuit Judges. BOYCE F. MARTIN, Jr., Circuit Judge. Freeman Cooper, the prevailing party in an employment discrimination action, now seeks attorney’s fees under Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), for work performed in resisting dismissal charges brought subsequent to his success in the district court. The district court found that Cooper, a black school principal, had been discriminated against by the Williamson County Board of Education, and required the School Board to give him a principalship. After the School Board complied with this order, the school superintendent brought dismissal charges for incompetency before the Board under Tennessee law. Cooper, who was represented by counsel, successfully resisted the charges. When Cooper sought attorney’s fees in the district court for work before the School Board, the request was denied. The state dismissal hearing, which occurred after the Title VII action, was not a proceeding under Title VII because Cooper’s participation was not a condition precedent to his pursuing his employment discrimination claim in federal court. Thus, Section 706(k) does not extend to the fee request. We affirm. I. This appeal for attorney’s fees is but the most recent saga of Cooper’s fifteen year struggle to retain his position as a principal in the Williamson County public school system in Tennessee. In the culmination of this struggle in June 1984, the United States District Court for the Middle District of Tennessee ruled that the Williamson County Board of Education had discriminated against Cooper on the basis of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court required the Board to reinstate Cooper as a principal and the court, in order to ensure compliance, retained jurisdiction. In August 1984 the Board placed Cooper in the principal’s position at Fairview High School, thereby displacing the experienced white principal at this predominantly white school. Cooper’s year at Fairview was an eventful one to say the least, with bomb scares, student walk-outs and conflicts with the faculty. In early January 1985 Kenneth Fleming, the school superintendent, filed dismissal charges against Cooper with the Board pursuant to the Tennessee Teacher Tenure Act, Tenn.Code Ann. §§ 49-5-501 et seq. (providing that teachers may be dismissed only for cause and that the causes for dismissal may be incompetence, inefficiency, neglect of duty, unprofessional conduct and insubordination). Fleming argued, essentially, that Cooper was insubordinant and incompetent, and sought to have him removed from the principalship at Fairview High School. Cooper succeeded in resisting the dismissal charges. After his success at the Board’s hearings, Cooper filed a fee petition with the district court seeking attorney’s fees for work performed after that court’s Title VII judgment reinstating him as principal. The district court, for analytical purposes, divided the request in two parts. The first category included “services rendered prior to the date on which dismissal charges were filed, and services rendered in connection with proceedings in [the district court].” More specifically, these services included following media reports, assisting Cooper with day-to-day administrative matters at Fairview High School, filing an Equal Employment Opportunity Commission charge with respect to a matter that was not brought before the district court, and making unsuccessful motions in the district court relating to the state dismissal proceedings. The court denied this part of the request. On appeal Cooper contends that the time spent by his attorneys following media reports and assisting with administrative matters at Fairview High School constituted reasonable monitoring and implementation of the district court’s prior order. As we view the record, Cooper has not appealed that part of the district court’s judgment regarding the denial of fees for work performed in filing the Equal Employment Opportunity Commission charge not brought before the court, nor has he challenged the denial of fees for work involved in making the unsuccessful motions. The second category of legal work, which forms the crux of Cooper’s appeal, “relate[d] to services rendered in preparation for, and participation in, the state dismissal proceedings.” In denying this part of the fee request, the district court wrote that because the state dismissal proceedings were “not mandated by the provisions of Title VII and did not involve an attempt by [Cooper] to secure Title VII rights[,]” they were not an “action or proceeding” within the meaning of Section 706(k) and Cooper was thus not entitled to attorney’s fees under that provision. Here, Cooper urges that the state dismissal proceedings were an “action or proceeding” within the meaning of Section 706(k) because those proceedings were useful and necessary to protect his Title VII rights, because the legal services provided in those proceedings constituted reasonable monitoring and implementation of the district court’s prior order, and because the district court made those proceedings an integral part of the Title VII action. II. Under the American Rule on attorney’s fees, a federal court may not, several narrow exceptions aside, award attorney’s fees unless expressly authorized by Congress. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). Cooper seeks to convince us that Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) grants that authorization. That section provides: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs____ In New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980), the Supreme Court had the opportunity to consider the application of this provision to state administrative proceedings. The Court noted that the language of Section 706(k) clearly authorizes fee-awards for work done in a “proceeding” other than a court action, and thus a Title VII prevailing party may get an award for fees from the losing party for work performed in a federal administrative proceeding. Id. at 61, 100 S.Ct. at 2029. In considering whether Section 706(k) also extended to state proceedings, the Court looked at the language of the provision and then at the structure of Title VII. First, it observed that the provision “authorizes a fee award to the prevailing party in ‘any ... proceeding under this title.’ ” Id. at 62,100 S.Ct. at 3030. Also, throughout the title “proceeding” and its plural form are “used to refer to all the different types of proceedings in which the statute is enforced, state and federal, administrative and judicial.” Id. at 62-63, 100 S.Ct. at 2030 (footnote omitted). The Supreme Court next pointed out that the same title creates an elaborate deferral system in which the state and federal institutions and remedies are to work together as one system. Title VII establishes a procedural structure in which claims are referred first to available state remedies and may be prosecuted in a federal forum only after the state remedies are exhausted or the deferral period expires. See Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972) (approving the referral and deferral system developed by the Equal Employment Opportunity Commission under Section 706(c)). In short, the claimant must first turn to state remedies, and may use federal remedies only when the state does not provide prompt or complete relief. As the Court explained, “It is clear from this scheme of interrelated and complimentary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination.” Carey, 447 U.S. at 65, 100 S.Ct. at 2031. The Supreme Court consequently concluded that when a plaintiff is referred to state proceedings pursuant to Title VII, the state proceeding is a “proceeding under this title” and that a court may thus make an award for work performed in the state proceedings. Id. at 71, 100 S.Ct. at 2034; cf. Webb v. Dyer Board of Education, 471 U.S. 234, 105 S.Ct. 1923, 85 L.Ed.2d 233 (1985) (holding that because 42 U.S.C. § 1983 does not require an exhaustion of state remedies as a precondition to pursuing a civil rights action in federal court, 42 U.S.C. § 1988, the attorney’s fees provision for § 1983 does not authorize an award for work performed in such optional state proceedings). III. Cooper seeks fees for work performed in resisting the dismissal charges brought before the School Board after the district court rendered its judgment in his Title VII case. Section 706(k) does not extend that far, however. Cooper was not referred to the dismissal proceedings sought under the Tennessee Teacher Tenure Act, Tenn.Code Ann. §§ 49-5-501 et seq., and thus these were not proceedings under Title VII. That title is concerned with employment discrimination and requires referral only to state employment discrimination remedies. Cooper’s dismissal charges, however, did not involve employment discrimination, but rather his competency as principal. In short, these state dismissal proceedings were not part of the “scheme of interrelated and complimentary state and federal enforcement” of the Title VII employment discrimination laws. Carey, 447 U.S. at 65, 100 S.Ct. at 2031. True, as a practical matter and as Cooper argues, he had to participate in the dismissal hearing to keep his job, but that, without more, is not sufficient to turn the dismissal hearing into Title VII proceedings. To argue, as Cooper does, that Section 706(k) applies to these dismissal proceedings because the work was both useful and of a type ordinarily necessary to protect his Title VII rights demonstrates a misunderstanding of Title VII. Title VII forbids Cooper’s employer from discriminating against him on the basis of race. It does not prevent an employer from discriminating on the basis of competency. If Cooper thought that the charges of incompetency and insubordination were a pretext and that the School Board or superintendent had been driven by racial animus, he should have brought, as the district court explicitly advised him, a contempt action in the district court. He never did so and we cannot impute such invidious motives to the Board or to the superintendent. Cooper asserts that the district court made the state competency hearing part of the district court’s proceedings and hence part of the Title VII action by maintaining jurisdiction. But the district court had already granted Cooper a Title VII judgment, and in no way mandated his participation in the state proceeding. This is quite a different case from Bartholomew v. Watson, 665 F.2d 910 (9th Cir.1982) (fee application made under 42 U.S.C. § 1988), in which the federal court abstained under the Pullman doctrine and required the litigants to clarify state law issues in a state forum before proceeding with the civil rights action in federal court. In Cooper’s case, the state proceedings dealt with no issue of state law that had a direct bearing on Cooper’s case in district court and the court did not require him to pursue the state proceedings before returning to federal court. In fact, the district court’s order requiring Cooper’s reinstatement had already been satisfied and no issues remained for resolution in Cooper’s Title VII claim. Further, contrary to Cooper’s assertions, the legal work performed by Cooper’s counsel in resisting the state dismissal charges did not constitute reasonable monitoring and implementation of the district court’s order. In making that argument, Cooper reminds us that in Northcross v. Board of Education, 611 F.2d 624, 637 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980), we said that “[sjervices devoted to reasonable monitoring of the court’s decrees, both to insure compliance and to ensure that the plan is indeed working to desegregate the school system, are compensable services.” The Northcross fee application involved work performed by counsel to ensure full compliance with a complicated school desegregation plan. Here, Cooper's remedy of reinstatement had already been executed before the dismissal charges were brought before the School Board. The district court did maintain jurisdiction over Cooper’s case, but merely as a procedural step to ensure compliance. Finally, as for the services provided by Cooper’s counsel before the filing of the state dismissal charges, we must agree with the district court that they do not constitute reasonable monitoring of its earlier order. The district court’s order that the Board reinstate Cooper as a principal did not require that his counsel follow media reports or advise him on day-to-day administrative matters faced in his job as principal. The district court quite correctly observed that although Cooper may consult with his attorneys about any matter, the defendants should not be required to reimburse him for work performed by his attorneys in connection with his responsibilities as principal. The judgment of the district court is affirmed. Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_casetyp1_2-3-1	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 "civil rights - civil rights claims by prisoners and those accused of crimes". Tyrone BULLOCK, Appellant v. Martin SUOMELA. No. 82-3343. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) March 25, 1983. Decided June 21, 1983. Tyrone Bullock, pro se. LeRoy S. Zimmerman, Atty. Gen., Gregory R. Neuhauser, Francis R. Filipi, Deputy Attys. Gen., Harrisburg, Pa., for appellee. Before GIBBONS, GARTH and MARIS, Circuit Judges. OPINION OF THE COURT MARIS, Circuit Judge. The plaintiff, an inmate of the Pennsylvania Correctional Institution at Hunting-don, filed a civil rights complaint pro se against the defendant, a member of the staff of that institution. He also requested leave to proceed in forma pauperis without prepayment of fees and costs. In support of that request he filed an affidavit which did not contain all of the information required by the established procedure of the district court. Further, he marked “Refused” on a certificate attached to the affidavit which was to have been executed by prison officials. And, finally, he indicated that he did not have any money in his prison account. The magistrate to whom the case was referred accordingly issued an order requiring prison officials to submit further financial information. Thereafter, an affidavit was filed which indicated that on March 16, 1982, the date on which the plaintiff executed his affidavit stating that he had no funds in his prison account, that account actually had a balance of $4.76, that his average monthly wages were $17.48 and that during the 6-month period preceding suit he had receipts of $144.22. The magistrate thereupon ordered the plaintiff to pay a partial filing fee of $4.00 or submit an explanation demonstrating that he lacked access to sufficient funds to make the partial payment. Plaintiff responded with an affidavit indicating that he should be excused from paying the filing fee on the basis that his only source of income was from prison wages which he needed to purchase essential cosmetics, legal paper, photocopies and postage stamps and that the then present balance in his account was zero. The magistrate considered nonetheless that it would not be burdensome on the plaintiff to pay the modest partial filing fee which he had ordered. The plaintiff failed to do so, however, and on the report and recommendation of the magistrate and after considering exceptions thereto filed by plaintiff, the district court dismissed the complaint with prejudice. The present appeal by the plaintiff followed. The magistrate and the district court acted pursuant to a procedure followed in that court under which a plaintiff seeking to proceed pro se without prepayment of fees and costs who is without funds to prepay them in full is authorized to proceed in forma pauperis upon payment of such lesser sum in part payment as his financial situation may fairly permit. A number of courts of appeals and district courts have approved this procedure as within the authority conferred by 28 U.S.C. § 1915(a); Evans v. Croom, 650 F.2d 521 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982); Zaun v. Dobbin, 628 F.2d 990 (7th Cir.1980); In re Stump, 449 F.2d 1297 (1st Cir.1971); Braden v. Estelle, 428 F.Supp. 595 (S.D.Tex. 1977); and so do we. We, accordingly, reach the question which the plaintiff presents on this appeal, namely, that the district court was guilty of an abuse of discretion in requiring him to pay $4.00 of the filing fee as a prerequisite to being granted status in forma pauperis and, therefore, erred in dismissing his complaint because of his failure to do so. As this and other courts have pointed out, the procedure followed in the district court may not be so employed as to leave a pro se litigant absolutely penniless. As this court said in Souder v. McGuire, 516 F.2d 820, 824 (3rd Cir.1975), “we do not think that prisoners must totally deprive themselves of those small amenities of life which they are permitted to acquire in a prison or a mental hospital beyond the food, clothing, and lodging already furnished by the state.... These need not be surrendered in order for a prisoner or a mental patient to litigate in forma pauperis in the district court.” What may be required by the district court in the exercise of its discretion is a payment which is fair in the light of the actual financial situation of the particular pro se litigant. See, in this connection, Judge Bue’s excellent discussion of this subject in Braden v. Estelle, 428 F.Supp. 595 (S.D.Tex.1977). In the present case, the order of the court, if carried out, would have left the plaintiff with a balance of only 76 cents. True, he had the possibility of prison earnings, but these were modest indeed and problematical. We conclude that the order of the court requiring the plaintiff to pay $4.00 of his $4.76 cash assets was an abuse of discretion and that in for-ma pauperis status should have been granted without any required prepayment of fees and costs. The order of the district court will be reversed and the cause, remanded with directions to reinstate the complaint and to grant plaintiff’s request for leave to proceed without prepayment of fees and costs. Question: What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"? A. suit for damages for false arrest or false confinement B. cruel and unusual punishment C. due process rights in prison D. denial of other rights of prisoners - 42 USC 1983 suits E. denial or revocation of parole - due process grounds F. other denial or revocation of parole G. other prisoner petitions H. excessive force used in arrest I. other civil rights violations alleged by criminal defendants Answer:
songer_trialpro	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 procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during 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". ROBESON v. ACHESON. No. 11030. United States Court of Appeals District of Columbia Circuit Argued March 13, 1952. Decided Aug. 7, 1952. Mr. Nathan Witt, New York City, of the Bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with who Messrs. James A. Cobb, George E. C. Hayes, George A. Parker and Barrington D. Parker, Washington, D. C., were on the brief, for appellant. Mr. Joseph M. Howard, Asst. U. S. Atty., with whom Messrs. Charles M. Irelan, U. S. Atty., and Ross O’Donoghue, Asst. U. S. Atty., were on the brief, for appellee. Mrs. George Morris Fay, U. S. Atty. at the time the record was filed, also entered an appearance for appellee. Before WILBUR K. MILLER, PRET-TYMAN and FAHY, Circuit Judges. PER CURIAM. Appellant Robeson, plaintiff below, appeals from dismissal of his complaint, on motion, by the District Court. The complaint seeks a declaratory judgment and injunction decreeing in substance that appellant’s passport is still valid, that appellee Acheson, Secretary of State, the defendant below, has without right cancelled it, and that appellant is entitled to leave the United States without interference by appellee. The complaint, filed Deecmber 19, 1950, recites, inter alia, that appellant, a citizen of the United States, then held a passport which would by virtue of a renewal remain valid until January 25, 1961; that appellee Acheson, through his agents, demanded appellant surrender his passport; that the passport was invalidated, and, on information and belief, that appellee took steps to prevent appellant from leaving the United States. The complaint sets forth respects in which appellee’s conduct is said to have been illegal and to have injured appellant in his travel plans and business activities abroad. According to the allegations of the complaint the passport expired January 25, 1951, a few weeks subsequent to the filing of the suit. No application for renewal or for a new passport is shown to have been made. Insofar as the passport is concerned it seems clear, therefore, the case has long since become moot. “ * * * There being no subject matter upon which the judgment of this Court can operate, the cause is moot.” Amalgamated Ass’n of St. Elec. Ry. & Motor Coach Emp. of America Div. 998 v. Wisconsin Board, 1951, 340 U.S. 416 at page 418, 71 S.Ct. 373, 375, 95 L.Ed. 389. We should not, under settled principles, decide the important issues sought to be litigated when there is pending before the Secretary no application for a new passport and the one said to have been unlawfully invalidated has expired by its own terms. The entire case fails by reason of the situation above described. It is not saved by the allegations that the Secretary has taken steps pursuant to Section 53.5 of Title 22 of the Code of Federal Regulations to prevent appellant’s departure from the United States. It is true the alleged actions of the Secretary in this respect, like those dealing with cancellation of the passport, are characterized as depriving appellant of his right to travel abroad, and as arbitrary, discriminatory and violative of due process of law. But the complaint indicates that the steps said to have been taken to prevent appellant’s departure are incident to invalidation of his passport. Nowhere among the allegations of his travel plans or desires or business activities dependent upon his travel is there a suggestion of plans, desires or activities which would take appellant to any place outside the United States where under existing law and regulations a passport might not be required. A fair reading of the complaint discloses no case, independent of the consequence of invalidation of the passport, of alleged infringement of rights by restraint upon appellant’s freedom of movement beyond the United States. Copies of communications between him and the State Department, attached as exhibits to the complaint, and his reference to § 53.5 of the regulations, the terms of which are outlined in the last paragraph of n. 1, supra, emphasize that his dispute with the Department is radicated in the passport issue. Since that issue falls as moot the whole case falls with it as presently set forth in the complaint. Reversed and remanded to be dismissed as moot. . Peacetime control over passports is vested in the Secretary, under regulations prescribed by the President. 44 Stat. 887 (1926), 22 U.S.C.A. § 211a (1946). Regulations under this provision are found in Sections 51.1 — 52.9, 22 Code Fed. Regs. Parts 51 and 52 (1949 ed.). Under 22 U.S.C.A. §§ 223 and 224 (1946), 40 Stat. 559 (1918), the President is authorized to restrict departures from the United States in time of actual war or during the national emergency proclaimed May 27, 1941, by Proclamation No. 2487, 6 Fed.Reg. 2617, 50 U.S.C.A.Appendix note preceding § 1. Though, this emergency was terminated April 28, 1952, and though the war has ended, the powers referred to have been extended. The current extension appears in Public Law 450, approved July 3, 1952, 68 Stat. 330,' and also in Public Law 414, Immigration and Nationality Act, Sec. 215, enacted into law over Presidential veto, June 27, 1952, 66 Stat. 190. Under these powers the Secretary has promulgated regulations which include Section 53.5, 22 Code Fed.Regs. Part 53 (1949 ed.), referred to in the complaint. Section 53.5 permits (a) the Secretary to prevent departure or entry of a citizen if he does not bear a passport or other specified document notwithstanding he may be destined for or arriving from a place outside the territory of the United States for which a valid passport is not required in the regulations; further, (b) the Secretary is permitted to prevent temporarily departure or entry of a citizen who bears a valid passport or other specified document or is destined for or arriving from a place outside United States territory for which a valid passport is not required under the regulations of said Part. Provision (b) is not involved by the complaint and in any event appears inapplicable. Provision (a) refers to a situation where a person does not have a passport even when usually one would not be required. Thus again it appears that the prevention of appellant’s departure, alleged to have been taken pursuant to Section 53.5, is due to absence of a passport even though we were to assume he might desire to go where a passport is ordinarily unnecessary, under § 53.2, 22 Code Fed.Regs. Part 53 (1949 ed.). . See 22 Code Fed.Regs. § 53 (1949 ed.). Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed 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. Hugh W. SHUMAKER, Plaintiff-Appellee, v. GEM MANUFACTURING CO., Defendant-Appellant. No. 13706. United States Court of Appeals Seventh Circuit. Dec. 20, 1962. James P. Hume, Chicago, Ill., Russell H. Clark, Edwin H. Halligan, Chicago, Ill., for appellant. Francis A. Utecht, Long Beach, Cal., Benjamin F. Berry, Seattle, Wash., Max Richard Kraus, Chicago, Ill., for appellee. Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges. ENOCH, Circuit Judge. Plaintiff, Hugh W. Shumaker, brought this action against defendant, Gem Manufacturing Co., charging infringement of plaintiff’s patent No. 2,933,344, granted April 19, 1960. The patent is directed to a pair of wind deflectors attached to the rear corner posts of a station wagon to break up the vacuum formed during forward movement of the vehicle. The vacuum created at the blunt end during forward movement of a station wagon draws road dust, dirt, grime, snow and other foreign material onto the rear window, obscuring rear vision and creating a driving hazard. The District Court found the patent to be valid; held that claims 1 and 2 thereof were wilfully and wantonly infringed by defendant; and granted permanent injunction and accounting for costs. Defendant appealed. The defendant lists the contested issues as follows: 1. The Shumaker patent No. 2,~ 933,344 here in suit is invalid as to claims 1 and 2 for lack of invention and for anticipation over the prior art. 2. The patent here in suit as to ■claims 1 and 2 is invalid because ■Shumaker did not exercise that de.gree of inventive skill necessary to ■comply with the requirements of ■Section 103, Title 35, U.S.Code, which relates to conditions for patentability. 3. The defendant has not directly infringed claims 1 and 2 of the •patent here in suit by manufacturing and selling wind deflectors as ■exemplied in Plaintiff’s Ex. 32 and ■39. 4. The defendant is not liable as a contributory infringer under 35 U.S.Code Section 271(c) because the wind deflectors which it manufactures and sells are staple articles of commerce and said wind deflectors can be applied to the roofs of cars, to the hood of autos and to boats, all substantial non-infringing uses. Defendant contends that wind deflectors and air directors are not new and form the subject of a number of prior art patents. However, the problem was an old and long existing one. Plaintiff testified that he became aware of it while driving a station wagon on a rural mail delivery route during the summer of 1956. He then conceived the idea of eliminating the vacuum by directing the slip stream of air inwardly across the rear window area. He constructed and tested deflectors to secure an inexpensively manufactured, attractive, easily adjustible device, adaptable to all conventional models, which would allow the tailgate to be opened without striking the wind deflector assembly. He also found that the deflectors kept exhaust gases and road dust from entering the vehicle if the rear window were kept open. He began selling his device in 1958, and, alone, lacking substantial merchandising experience, with a limited operating budget, relying on mail orders from advertisements in rural magazines, and his own personal visits to service stations and garages, he achieved a sales volume of about $57,000 between March 1958 and July 1960. After July 1, 1960, when he entered into an exclusive licensing agreement with Superior Industries, Inc., of North Hollywood, California, he discontinued selling his devices. Louis Borick, an employee of Superior Industries, testified that his company, from about June 1959 to December 1961, had a gross sales volume of about $450,000. David L. Gass, an employee of defendant, testified, as an adverse witness for plaintiff, that in October or November 1959, a customer had brought in a wind deflector which Mr. Gass later found to be identical to deflectors manufactured and sold by plaintiff’s exclusive licensee, Superior Industries. He immediately started developing the accused device, completed tools and dies, and had pieces for sale in January 1960. Defendant continued from that date to manufacture and sell its deflectors in competition with those of plaintiff’s licensee. Although he found that the vanes of defendant’s deflectors were provided with non-functional vertical embossing and their brackets utilized Phillips-head screws rather than straight slotted screws, the District Judge found the defendant’s device substantially identical with those sold by plaintiff and by plaintiff’s licensee, the vanes and brackets being interchangeable. Defendant advertised its product through a catalog sheet containing a picture of the rear of a station wagon with wind deflectors mounted on its rear corner posts. The catalog sheet stated that these deflectors broke the vacuum, thus keeping the rear window clear, and kept exhaust gases and road dust out if the rear window were open. Defendant’s cartons bore a substantially similar picture and description, and contained instructions for installing the deflectors in an adjustable manner on the rear corner posts of a station wagon. In April 1960, plaintiff served notice of infringement on defendant. Defendant then brought out a new catalog sheet in which deflectors were shown on an automobile hood, on a boat windshield, and singly on the roof, as well as in pairs at the rear, of a station wagon. The carton cover was similarly changed, and the instruction sheet referred to the varied pictured uses. But the instructions themselves dealt only with mounting the deflectors in pairs on the rear corner posts of a station wagon. Later a third instruction sheet added a statement that, comparable installation could be made “for cars and boats.” Mr. Gass testified to seeing one deflector on the roof of a station wagon and one pair on a boat. There is no question that if installed on the rear posts of a station wagon pursuant to the instructions contained in the carton, defendant’s wind deflectors constitute a direct infringement of claims 1 and 2 of the patent in suit. Of the prior art introduced by defendant, only three patents disclosed means for breaking the vacuum behind a moving vehicle: Chalkley 1,584,275, May 11, 1926; Stalker, 1,871,396, August 9, 1932; Ishiwata, 2,199,883, May 7, 1940. We have examined these patents and are constrained to agree with the analysis of the District Court that none presents a practical solution of the problem. On the contrary, it appears that Chalkley and Stalker would require extensive modification of the vehicles to which they are attached. Ishiwata, on which defendant particularly relies, might well result in obscuring the view through the rear window. All three-were included among the patents cited by the Patent Examiner, a fact which, strengthens the presumption of patent, validity. Amp, Inc. v. Vaco Products Co., 7 Cir., 1960, 280 F.2d 518, 521; Copeman Laboratories Co. v. General Plastics Corp., 7 Cir., 1945, 149 F.2d 962, 964; Ekstrom-Carlson & Co. v. Onsrud Machine Works, Inc., 7 Cir., 1962,. 298 F.2d 765, 768. It is true, as defendant argues, that development of a vacuum at the flat-ended rear of a forward moving vehicle is a well known physical phenomenon. But the need for a device such as plaintiff’s existed for a long time prior to his discovery of a solution. The apparent simplicity of the invention here involved gives it a false appearance of obviousness only now after the event, in the light of the patent’s own teaching. The District Court’s finding of patent validity is bolstered by the immediate commercial success of the device and by defendant’s own prompt adoption of it. As defendant asks, we have considered the prior art respecting the brackets, but we do not see disclosed brackets which would fulfill the need of maintaining the vanes in an adjustable position relative to the supporting member. We must agree with the District Judge’s findings that none of the prior art anticipates or negatives invention in the patent in suit. The District Court found that defendant has contributorily infringed claims 1 and 2 of the patent in suit by inducing others to purchase defendant’s deflectors with the intent that they be installed on the rear corner posts of a station wagon in an infringing manner. As noted above, the drawings and instructions accompanying the defendant’s device are clearly directed to this end. “Whoever actively induces infringement of a patent shall be liable as an infringer.” Title 35 U.S.Code § 271(b). Defendant contends that it is selling a staple article of commerce suitable for substantial non-infringing use, and that some of these non-infringing uses are indicated in the revised instruction and catalog sheets issued after the filing of this suit; that defendant sells to wholesalers who in turn sell to the public and that defendant has no way of knowing what ultimate infringing, or non-infringing, use the final consumer will make of defendant’s product. However, the defendant, for example, sells these deflectors in sets of two. It is unlikely that a purchaser seeking- a single deflector for non-infringing use on the roof of an automobile will buy the uevice in pairs. As defendant asserts, plaintiff’s licensee sells a wind deflector for use singly on the roof of an automobile in a carton which does not bear any patent number. That deflector, however, is longer that those of defendant’s; it does not fall within the scope of claims 1 and 2, not “being of a vertical height substantially the same as the vertical height of the rear window,” and is boxed and sold singly. Even after notice of infringement and after institution of this suit, defendant continued to sell its product in pairs, with carton and catalog illustrations of their installation on the rear posts of a station wagon in an infringing manner. The instructions, even as revised, continued to describe in detail a 9-step method for mounting the deflectors on the rear posts of a station wagon in an infringing manner. At the foot of the instruction sheet, defendant merely says: “For Cars & Boats “Installation is entirely comparable to the above, except that when using Wind Deflectors as a "scoop’, brackets are attached to the adhesive coated convex side.” Defendant complains that the injunction is overly broad. We understand the injunction entered herein to be limited strictly to the infringing activity of selling the defendant’s deflectors in pairs for installation on the rear posts of a station wagon in an infringing manner. The injunction is not directed to sale of the deflectors singly for use on the roof or in pairs for use on the hood of an automobile or on the windshield of a boat. However, the defendant may not with impunity continue the practice of picturing the infringing use on its cartons, in its catalogs, and in its instruction sheets, or of selling its product with directions for mounting it in an infringing manner. Under these circumstances defendant cannot reasonably be heard to contend that it is selling its product for a non-infringing use and that the ultimate purchaser, by his own ingenuity alone, has devised an infringing use for which the ■defendant is not responsible. The judgment of the District Court, •subject to the above comments as to the scope of the injunction, is affirmed. . 1. In combination with a vehicle of the type having a closed body and being provided with a rear section which is substantially flat and generally vertical and having in the upper region thereof a generally upright and substantially flat window extending between rear corner posts of the vehicle body, whereby the vehicle while in motion tends to produce a vacuum in the region of the rear section thereof such as to cause dust and road dirt to be delivered against the rear window glass, a wind deflector disposed in outwardly spaced relationship with respect to each such corner post, each deflector being of a vertical height substantially the same as the vertical height of the rear window, means secured to each corner post articulately mounting a respective wind deflector therefrom, said means including a link extending between a respective corner post and deflector and being pivotally secured at its opposite ends to these members whereby each deflector is positionable to project laterally and forwardly from the rear window into the slip stream of air at its corresponding side of the vehicle body, each deflector being in the form of an elongate strip of material of generally rectangular form and being arcuated in cross section so that whereas the forward edge of each such ■ deflector is disposed within the slip stream, the rear edge thereof is positioned to direct deflected air streams across the back surface of the window to obviate the vacuum effect of the vehicle body. 2. The assembly as defined in and by ■ claim 1 wherein said means also includes .a first strap member fixed to a respeefive deflector and having a pair of outstanding ears rigid therewith and disposed in vertically spaced relationship to each other, a second strap member fixed to a respective corner post and having a pair of outstanding ears rigid therewith disposed in vertically spaced relationship, said link being pivotally attached at its opposite ends to one ear of each said pair of ears, and there being a second link pivotally connected at its opposite ends to the other ears of said pairs of ears. . Whoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_appnatpr	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 "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. DEAKTER v. UNITED STATES (two cases). NAWROCKI v. SAME. Nos. 6160-6162. Circuit Court of Appeals, Third Circuit. March 24, 1937. Rehearing Denied April 27, 1937. Raymond D. Evans, of Pittsburgh, Pa., for appellants. Charles F. Uhl, U. S. Atty., and Stanley Granger, Asst. U. S. Atty., both of Pittsburgh, Pa., for the United States. Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges. PER CURIAM. The question involved in these cases is whether the court should have held that under the proofs the several defendants were entitled to a verdict of not guilty. No question of principle or practice is involved. The charge of the court was eminently fair, and the verdict of the jury holding defendants guilty on some counts and not guilty on others was warranted by the proofs. On motion for new trial, the judge “carefully reviewed the whole record,” with the result that he found no error justifying setting the verdicts and sentences aside. The case was fully argued before this court and all questions raised have been considered, with the result we have reached the conclusion the proofs were such as to warrant and constrain the submission of the case to the jury. So holding, the judgment below is affirmed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_majvotes	2	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. UNITED STATES v. JANKOWSKI et al. Circuit Court of Appeals, Second Circuit. October 29, 1928. No. 91. Manton, Circuit Judge, dissenting. Michael J. Maher, of Buffalo, N. Y. (John J. Carlo, of Buffalo, N. Y., of counsel), for plaintiffs in error. Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (Harold E. Orr, of Buffalo, N. Y., of counsel), for the United States. Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above). If the story of State Trooper Gibbons be taken as true, and it would seem to be more likely to be so than the interested account of the defendant Binkowski, we must assume that the troopers were patrolling the roads to secure the observance of state law and to detect its violation. A part of their duty was to see that persons driving motor vehicles complied with section 286 of the New York Highway Law (Consol. Laws, c. 25), which requires the display of proper headlights on all automobiles. Gibbons testified that the car which Jankowski drove had— “one light on and the other flickering; * * * that they stopped this car to notify the driver to fix his lights; * * * that, after he stopped the defendant’s car, he asked him for his license card and at that time saw a blanket across the knees of the defendants that he knew was the property of the state of New York; * * * that thereafter the two defendants got out of the car and * * * as they got out he noticed underneath the blanket was a package on the floor; * * * that he asked the defendant Binkowski what it was and that both defendants said ‘it was whisky.’ * * * He then asked the defendants if they had any more than what was in the front and Jankowski then opened the back end of the coupé and there were 16 eases altogether of ‘Golden Wedding’ whisky and that he then placed them únder arrest and took them to Jamestown.” This version of what occurred shows no illegal seareh, nor, indeed, any seareh at all. While engaged in ordinary police work for the state, the troopers saw the package which the defendants said contained whisky. Thereafter the defend'ants, knowing that they were caught, confessed that they had other whisky aboard the ear, and opened the rear of the car and disclosed the contents. The claim that the seareh was illegal can only be based on the opening of the door of the car by the trooper. But when a policeman, without any protest, opens the door of an automobile to talk to the owner, it certainly goes beyond all reason to say that he is engaged in an unlawful seareh. It may often be the most convenient way either to look at a registry card or to talk to the driver about the condition of his headlights. Nor is it necessary, because the lights were not ultimately found to be defective, to assume that the motive for stopping the ear was to'make an unlawful seareh for contraband liquor. They may have temporarily been dim because of some irregularity in the electric current, or the officers may have been mistaken. The avowed purpose for stopping the ear and opening the door was to enforce state regulations, and the discovery of the whisky was incidental. In such circumstances, any officer who saw the defendants in the act of committing a crime would have the power to make an arrest. The plaintiff in error relies on the decision in Gambino v. United States, 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381. It was there held that, when state officers were making a search and seizure without probable cause and solely for the purpose of aiding in the enforcement of the federal law, the evidence could not be used in the federal courts, because the sole purpose of the search was to aid in the prosecution of a federal offense. Here, according to the testimony of Gibbons, the purpose of stopping the car was to enforce the observance of the state laws, and the information gained thereby was incidental and obtained without any seareh. The only remaining consideration is whether the story of Gibbons, on the faith of which the trial judge admitted the evidence, was credible, and whether, even if it was prima facie credible, the jury, in view of the conflict of testimony, should not have been allowed to pass on whether the facts constituted an illegal search. It cannot be doubted that the testimony of Gibbons was credible. It was only met by the story of one of the defendants under indictment for the offense charged. Gibbons is not shown to have had any interest in misrepresenting the facts, whereas the interest of the defendants was patent. Consequently there was sufficient ground for the admission of the testimony by the trial judge. If, as we find, the testimony was properly admitted by the court, it,would be contrary to all proper rules of evidence to allow the jury in effect to pass on its admissibility and to determine whether any legal search was made. The question as to the lawfulness of the search relates to admissibility of evidence, and was for the court only. While we are referred to no decision relating especially to the rule as to admissibility of evidence in search and seizure cases, the general rule is as we have indicated. Gila Valley G. & N. R. Co. v. Hall, 232 U. S. 94, 34 S. Ct. 229, 58 L. Ed. 521; Commonwealth v. Culver, 126 Mass. 464; State v. Leo, 80 N. J. Law, 21, 77 A. 523. We find no error in the record, and the judgment of conviction is accordingly affirmed. Question: What is the number of judges who voted in favor of the disposition favored by the majority? 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. UNITED STATES v. T. W. CORDER, Inc. No. 13363. United States Court of Appeals Ninth Circuit. Dec. 4, 1953. Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, S. Billingsley Hill, Attorneys, Washington, D. C., M. Mitchell Bourquin, Sp. Asst, to Atty. Gen., Francis N. Foley, Sp. Atty., San Francisco, Cal., for appellant. Erskine, Erskine & Tulley, J. Benton Tulley, Morse Erskine II, San Francisco, Cal., for appellee. Before ORR and POPE, Circuit Judges, and LEMMON, District Judge. ORR, Circuit Judge. On March 1, 1942, appellee T. W. Cor-der, Inc., was the owner of a lot and building located in Oakland, California. It leased the lot and building to the United States, hereafter referred to as the Government, for a term ending June 30, 1942, at a monthly rental of $550 payable in advance on the first day of each month. The lease agreement contained a provision that the Government could renew the lease from year to year thereafter by notice in writing and also contained the following option to purchase: “14. The Government, during the term of this lease and any renewal thereof, shall have the option to purchase the demised premises at not to exceed $75,-000.00. Title shall be conveyed to the Government by general grant deed, free and clear of all encumbrances; provided that if the Attorney General upon examination of the abstract of title furnished by the Lessor, shall not approve the title and condemnation proceedings are instituted, the Lessor, if requested by the Government, agrees to the entry of a consent verdict fixing the award at the option price.” On June 30, 1943, the lease then being in full force by renewal, an amendment thereof was made so as to provide that the term of the lease should continue through June 30, 1944, and that unless the Government should give thirty days written notice of termination before June 30th of each year thereafter, the lease would remain in force from year to year without further notice but in no event beyond June 30, 1953. On June 27, 1947, the Veterans’ Administration sent a telegram to appellee reading as follows: “The United States Of America By This Notice Elects To And Hereby Does Accept The Option To Purchase The Corder Building In The City Of Oakland, County Of Alameda, State Of California, And The Land Site Thereof Described As Being Lot No. 9 In Block No. 267 As Said Lot And Block Are Delineated And So Described Upon That Certain Map Entitled Quote Map Of The Casserly Tract On 14Th Street, Oakland Unquote Filed July 23, 1869 In The Office Of The Court Recorder Of Ala-meda County, And All Improvements Situate On Said Land. The Option Hereby Accepted Is Contained In Lease Contract V AM 21928 By And Between The United States Of America And T. W. Corder, Inc. Dated March 1, 1942 And Set Forth As Paragraph 14 Therein. Upon Receipt Of Confirmation Letter Which Follows, Kindly Advise This Office The Least Sum Of Money You Will Accept For Conveyance Of Fee Title Of The Above Described Property. (11CBA)” On July 9, 1947, the Veterans’ Administration wrote appellee a letter stating, in part: “Subsequent negotiations for securing title evidence and the details concurrent with the transfer of title from your company to the United States of America will be initiated by the office of the Deputy Administrator of Veterans Affairs, Veterans Administration, Branch Office No. 12, 180 New Montgomery Street, San Francisco, California, who has been requested to communicate with you. “As you are aware, vesting of title to the land and building must necessarily be subsequent to an opinion from the Attorney General as to the validity of the title held by your corporation. In view of the foregoing, it is the desire of the Veterans Administration that lease contract V Am-21928 remain in full force and effect until the deed to the land is recorded in the name of the Government, and the purchase price paid.” In answer to the Government’s request to state its minimum price for the property, the appellee, on July 14, 1947, through its president, replied that it would “positively accept no less than $75,000.00 net to us.” On August 29, 1947, the Veterans’ Administration notified appellee that its letter of July 9, 1947, stating that the lease' was to “remain in full force and effect”’ was in error and “should be disregarded inasmuch as the Government is legally precluded from making rental payments subsequent to exercise of the purchase-option” and claimed an overpayment of rent for the last three days of June 1947. The parties exchanged further correspondence with relation to the obligation of the Government to pay rent until payment of the purchase price. On December 5, 1947, appellee served notice upon the Government demanding that rent be paid within three days or that the premises be vacated. The rent was not paid and on December 13, 1947,. notice of rescission of the lease and option was served upon the Government. On December 18, 1947, appellee instituted an action in the District Court of the United States to terminate the lease- and recover from the Government rent claimed to be due under the lease at $550 per month from July 1, 1947, through December 8, 1947, and the reasonable value for the use of the premises from December 9, 1947, until surrender of possession. On January 6, 1948, the Government instituted a suit to condemn the property in question and on January 15, 1948,. filed a declaration of taking with a deposit of $75,000.00 (the amount specified in the option agreement) for the fee title. In the rent case judgment was entered in favor of T. W. Corder, Inc., the ap-pellee in the instant case. In the condemnation case presently before us the Government insists that the price to be paid for the land and building should be $75,000.00, the sum named in the option. The trial court rejected this contention and rendered a judgment in favor of ap-pellee in the sum of $93,547.07, which sum represents the $95,000.00 fixed as the fair market value of the condemned property less $1,452.93 previously paid to Alameda County for taxes. The trial judge made the following finding: “At no time prior to the deposit of $75,000.00 with the Clerk of this Court on January 15, 1948, did the plaintiff pay or tender to T. W. Corder, Inc., the sum of $75,000.00 for said property or deposit the same in escrow for payment to defendant upon the defendant conveying the property by good and sufficient deed to plaintiff; but at all times plaintiff has insisted that the defendant should rebate and pay to plaintiff the rental for the period June 28, through June 30; and that plaintiff would only pay the $75,000.00 less the rebate of rent for June 28 through 30 and on the further claim that defendant waive its claim for rental due from plaintiff.” This finding is supported by stipulated facts, the stipulation being as follows : “At no time prior to the deposit of $75,000 with the Clerk of this Court at the time of the commencement of this condemnation action, did the plaintiff pay to the defendant the purchase price for said property or deposit the same in escrow for payment to defendant upon the defendant conveying the property by good and sufficient deed to plaintiff; but at all times plaintiff has insisted that the defendant was not entitled to rental after June 27, 1947, and that the defendant should rebate and pay to plaintiff the rental for the period June 28 through June 30; and that plaintiff would only pay the $75,000 less the rebate of rent for June 28 through June 30.” The option price was not to exceed $75,000.00, but at no time did the Government unequivocably offer to purchase the property in accordance with its terms. The telegram of June 27, 1947, was not an acceptance of the option but was mere notice that the Government wished to exercise its option and a request that appellee advise it of the lowest price appellee would accept for the property. Appellee notified the Government that it would accept no less than $75,000.00. From the stipulation it clearly appears that the Government never made an unconditional offer to pay $75,000.00 for the property. It at all times insisted that it had the right to deduct the alleged overpayment of three days rent. As a result of the failure to exercise the option in accordance with its terms no bilateral contract for the purchase of the property came into existence. To exercise an option the notice thereof “must be unconditional and in exact accord with the terms of the option.” 1 Corbin on Contracts, § 264, p. 879; Colyear v. Tobriner, 1936, 7 Cal.2d 735, 62 P.2d 741, 109 A.L.R. 191. The Government was at no time bound by its conditional acceptance of the option and appellee was not bound because the option had not been exercised. When the Government refused to pay the rent due under the lease it became in default and appellee was entitled to rescind the lease. After due notice appellee, on December 8, 1947, terminated the lease for the nonpayment of rent and the termination was upheld by the District Court in the rent action. The lease being terminated, the right to exercise the option ceased. Sandra Frocks, Inc. v. Ziff, 1947, 397 Ill. 497, 74 N.E.2d 699; Bond v. Long, 1949, 338 Ill.App. 1, 86 N.E.2d 585; Estfan v. Hawks, 1949, 166 Kan. 712, 204 P.2d 780, 10 A.L.R.2d 877. There was no option in existence at the time the condemnation proceeding was instituted and the deposit of $75,000.00 made in court. Hence, the provisions of the option concerning the value to be placed on the property in the event of condemnation were not applicable and the trial court was free to fix the value of the property from the facts adduced at the trial. Judgment affirmed. 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:
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. RAPANOS et al. v. UNITED STATES No. 04-1034. Argued February 21, 2006 Decided June 19, 2006 M. Reed Hopper argued the cause for petitioners in No. 04-1034. With him on the briefs was Robin L. Rivett. Timothy A. Stoepker argued the cause for petitioners in No. 04-1384. With him on the briefs were Dennis W. Archer and Paul R. Bernard. Solicitor General Clement argued the cause for respondents in both cases. With him on the briefs were Assistant Attorney General Wooldridge, Deputy Solicitor General Hungar, Malcolm L. Stewart, Greer S. Goldman, Ellen J. Durkee, Todd S. Kim, and Katherine W. Hazard. Together with No. 04-1384, Carabell et al. v. United States Army Corps of Engineers et al., also on certiorari to the same court. Briefs of amici curiae urging reversal in both cases were filed for the State of Alaska et al. by David W. Marquez, Attorney General of Alaska, and Ruth Hamilton Heese and John T. Baker, Assistant Attorneys General, Roderick E. Walston, Mark Shurtleff, Attorney General of Utah, Guy R. Martin, Jeffrey Kightlinger, Thomas W. Birmingham, and Daniel S. Hentschke; for the American Farm Bureau Federation by Timothy S. Bishop; for the American Petroleum Institute by Thomas Sayre Llewellyn, Harry M. Ng, and Ralph J. Colleli, Jr.; for the Attainable Housing Alliance by Sebastian Rued; for the Cato Institute by Timothy Lynch; for the Claremont Institute Center for Constitutional Jurisprudence by John G. Eastman and Edwin Meese III; for CropLife America et al. by Richard E. Schwartz; for the Foundation for Environmental and Economic Progress et al. by Virginia S. Albrecht, Deidre G. Duncan, David J. De-Pippo, Ralph W. Holmen, Robin S. Conrad, and Amar D. Sarwal; for the Home Builders Association of Central Arizona by Michael J. Pearce; for the International Council of Shopping Centers et al. by Gus Bauman; for the Mountain States Legal Foundation by William Perry Pendley; for the National Association of Home Builders by Duane J. Desiderio and Thomas J. Ward; for the National Stone, Sand and Gravel Association et al. by Lawrence R. Liebesman; for Pulte Homes, Inc., et al. by Carter G. Phillips and Stephen B. Kinnaird; for the Western Coalition of Arid States by Lawrence S. Bazel and John Briscoe; for John J. Duncan, Jr., by Thomas C. Jackson; and for Charles R. Johnson et al. by Michael E. Malamut, Andrew R. Grainger, Martin J. Newhouse, and Martin S. Kaufman. Briefs of amici curiae urging affirmance in both eases were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Peter H. Lehner, Daniel Smirlock, Deputy Solicitor General, Benjamin N. Gutman, Assistant Solicitor General, and Lemuel M. Srolovic, Assistant Attorney General, Michael A. Cox, Attorney General of Michigan, Thomas L. Casey, Solicitor General, Susan Shinkman, and Margaret O. Murphy, and by the Attorneys General for their respective jurisdictions as follows: Terry Goddard of Arizona, Mike Beebe of Arkansas, Bill Lockyer of California, Richard Blumenthal of Connecticut, Carl C. Danberg of Delaware, Robert J. Spagnoletti of the District of Columbia, Charles J. Crist, Jr., of Florida, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Kelly A. Ayotte of New Hampshire, Peter C. Harvey of New Jersey, Patri cia A. Madrid of New Mexico, Roy Cooper of North Carolina, Jim Petro of Ohio, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, Henry McMaster of South Carolina, Paul G. Summers of Tennessee, William H. Sorrell of Vermont, Rob McKenna of Washington, and Peggy A Lautenschlager of Wisconsin; for the City of New York by Michael A. Cardozo, Leonard J. Koerner, and Hilary Meltzer; for American Rivers et al. by Howard I. Fox; for the Association of State and Interstate Water Pollution Control Administrators by Timothy J. Dowling; for the Association of State Wetland Managers et al. by Patrick Parenteau; for the Chesapeake Bay Foundation by Jan Goldman-Carter; for Ducks Unlimited, Inc., et al. by James Murphy, Thomas M. France, and Neil S. Kagan; for the Environmental Law Institute by Seth P. Waxman, Louis R. Cohen, and Leslie Carothers; for the National Mitigation Banking Association by Margaret N. Strand, John F. Cooney, and Royal C. Gardner; for the Western Organization of Resource Councils et al. by Charles M. Tebbutt; for Carol M. Browner et al. by Deborah A. Sivas, Lawrence C. Marshall, and Holly D. Gordon; for Jared M. Diamond et al. by Jason C. Rylander; for Rep. John D. Dingell et al. by Robert W. Adler and Amy J. Wildermuth; and for Calvin H. Johnson by Mr. Johnson, pro se. Briefs of amici curiae were filed in both cases for the American Planning Association by Nancy Stroud; for the Mackinac Center for Public Policy by Patrick J. Wright; for the National Association of Waterfront Employers by Francis Edwin Froelich and Charles T. Carroll, Jr.; and for the National Federation of Independent Business Legal Foundation by Robert R. Gasaway and Ashley C. Parrish. Mark A. Perry, Daniel J. Popeo, and Paul D. Kamenar filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal in No. 04-1034. James Blanding Holman TV and Derb S. Carter, Jr., filed a brief for the Ecological Society of America et al. as amici curiae urging affirmance in No. 04-1384. Briefs of amici curiae were filed in No. 04-1384 for Donald L. Harkins by William J. Reisdorf; and for Macomb County, Michigan, by Mark A. Richardson. Justice Scalia announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Thomas, and Justice Alito join. In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. 339 F. 3d 447, 449 (CA6 2003) (Rapanos I). Regulators had informed Mr. Rapanos that his saturated fields were “waters of the United States,” 33 U. S. C. § 1362(7), that could not be filled without a permit. Twelve years of criminal and civil litigation ensued. The burden of federal regulation on those who would deposit fill material in locations denominated “waters of the United States” is not trivial. In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as “economics,” “aesthetics,” “recreation,” and “in general, the needs and welfare of the people,” 33 CFR § 320.4(a) (2004). The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915 — not counting costs of mitigation or design changes. Sunding & Zilberman, The Economies of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process, 42 Natural Resources J. 59, 74-76 (2002). “[0]ver $1.7 billion is spent each year by the private and public sectors obtaining wetlands permits.” Id., at 81. These costs cannot be avoided, because the Clean Water Act “impose[s] criminal liability,” as well as steep civil fines, “on a broad range of ordinary industrial and commercial activities.” Hanousek v. United States, 528 U. S. 1102, 1103 (2000) (THOMAS, J., dissenting from denial of certiorari). In this litigation, for example, for backfilling his own wet fields, Mr. Rapanos faced 63 months in prison and hundreds of thousands of dollars in criminal and civil fines. See United States v. Rapanos, 235 F. 3d 256, 260 (CA6 2000). The enforcement proceedings against Mr. Rápanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act — without any change in the governing statute — during the past five Presidential administrations. In the last three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over “the waters of the United States” to cover 270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning. The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit — whether man-made or natural, broad or narrow, permanent or ephemeral — through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated “waters of the United States” include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory “waters of the United States” engulf entire cities and immense arid wastelands. In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a “water of the United States.” I Congress passed the Clean Water Act (CWA or Act) in 1972. The Act’s stated objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 86 Stat. 816, 33 U. S. C. § 1251(a). The Act also states that “[i]t is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.” § 1251(b). One of the statute’s principal provisions is 33 U. S. C. § 1311(a), which provides that “the discharge of any pollutant by any person shall be unlawful.” “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source,” § 1362(12), and “pollutant” is defined broadly to include not only traditional contaminants but also solids such as “dredged spoil,... rock, sand, [and] cellar dirt,” § 1362(6). And, most relevant here, the CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” § 1362(7). The Act also provides certain exceptions to its prohibition of “the discharge of any pollutant by any person.” § 1311(a). Section 1342(a) authorizes the Administrator of the EPA to “issue a permit for the discharge of any pollutant, . . . notwithstanding section 1311(a) of this title.” Section 1344 authorizes the Secretary of the Army, acting through the Corps, to “issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” § 1344(a), (d). It is the discharge of “dredged or fill material” — which, unlike traditional water pollutants, are solids that do not readily wash downstream — that we consider today. For a century prior to the CWA, we had interpreted the phrase “navigable waters of the United States” in the Act’s predecessor statutes to refer to interstate waters that are “navigable in fact” or readily susceptible of being rendered so. The Daniel Ball, 10 Wall. 557, 563 (1871); see also United States v. Appalachian Elec. Power Co., 311 U. S. 377, 406 (1940). After passage of the CWA, the Corps initially adopted this traditional judicial definition for the Act’s term “navigable waters.” See 39 Fed. Reg. 12119, codified at 33 CFR § 209.120(d)(1) (1974); see also Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 168 (2001) (SWANCC). After a District Court enjoined these regulations as too narrow, Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (DC 1975), the Corps adopted a far broader definition. See 40 Fed. Reg. 31324-31325 (1975); 42 Fed. Reg. 37144 (1977). The Corps’ new regulations deliberately sought to extend the definition of “the waters of the United States” to the outer limits of Congress’s commerce power. See id., at 37144, n. 2. The Corps’ current regulations interpret “the waters of the United States” to include, in addition to traditional interstate navigable waters, 33 CFR § 328.3(a)(1) (2004), “[a]ll interstate waters including interstate wetlands,” § 328.3(a)(2); “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,” § 328.3(a)(3); “[tributaries of [such] waters,” § 328.3(a)(5); and “[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands),” § 328.3(a)(7). The regulation defines “adjacent” wetlands as those “bordering, contiguous [to], or neighboring” waters of the United States. § 328.3(c). It specifically provides that “[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are 'adjacent wetlands.’” Ibid. We first addressed the proper interpretation of 33 U. S. C. §1362(7)’s phrase “the waters of the United States” in United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985). That case concerned a wetland that “was adjacent to a body of navigable water,” because “the area characterized by saturated soil conditions and wetland vegetation extended beyond the boundary of respondent’s property to ... a navigable waterway.” Id., at 131; see also 33 CFR § 328.3(b). Noting that “the transition from water to solid ground is not necessarily or even typically an abrupt one,” and that “the Corps must necessarily choose some point at which water ends and land begins,” 474 U. S., at 132, we upheld the Corps’ interpretation of “the waters of the United States” to include wetlands that “actually abut[ted] on” traditional navigable waters. Id., at 135. Following our decision in Riverside Bayview, the Corps adopted increasingly broad interpretations of its own regulations under the Act. For example, in 1986, to “clarify” the reach of its jurisdiction, the Corps announced the so-called “Migratory Bird Rule,” which purported to extend its jurisdiction to any intrastate waters “[wjhich are or would be used as habitat” by migratory birds. 51 Fed. Reg. 41217; see also SWANCC, supra, at 163-164. In addition, the Corps interpreted its own regulations to include “ephemeral streams” and “drainage ditches” as “tributaries” that are part of the “waters of the United States,” see 33 CFR § 328.3(a)(5), provided that they have a perceptible “ordinary high water mark” as defined in § 328.3(e). 65 Fed. Reg. 12823 (2000). This interpretation extended “the waters of the United States” to virtually any land feature over which rainwater or drainage passes and leaves a visible mark— even if only “the presence of litter and debris.” 33 CFR § 328.3(e). See also U. S. General Accounting Office, Report to the Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating Affairs, Committee on Government Reform, House of Representatives, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction, GAO-04-297, pp. 20-22 (Feb. 2004) (hereinafter GAO Report), http:// www.gao.gov/new.items/d04297.pdf (all Internet materials as visited June 9, 2006, and available in Clerk of Court’s case file). Prior to our decision in SWANCC, lower courts upheld the application of this expansive definition of “tributaries” to such entities as storm sewers that contained flow to covered waters during heavy rainfall, United States v. Eidson, 108 F. 3d 1336, 1340-1342 (CA11 1997), and dry arroyos connected to remote waters through the flow of groundwater over “centuries,” Quivira Mining Co. v. EPA, 765 F. 2d 126, 129 (CA10 1985). In SWANCC, we considered the application of the Corps’ “Migratory Bird Rule” to “an abandoned sand and gravel pit in northern Illinois.” 531 U. S., at 162. Observing that “[i]t was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview,” id., at 167 (emphasis added), we held that Riverside Bayview did not establish “that the jurisdiction of the Corps extends to ponds that are not adjacent to open water,” 531 U. S., at 168 (emphasis deleted). On the contrary, we held that “nonnavigable, isolated, intrastate waters,” id., at 171 — which, unlike the wetlands at issue in Riverside Bayview, did not “actually abu[t] on a navigable waterway,” 531 U. S., at 167 — were not included as “waters of the United States.” Following our decision in SWANCC, the Corps did not significantly revise its theory of federal jurisdiction under § 1344(a). The Corps provided notice of a proposed rule-making in light of SWANCC, 68 Fed. Reg. 1991 (2003), but ultimately did not amend its published regulations. Because SWANCC did not directly address tributaries, the Corps notified its field staff that they “should continue to assert jurisdiction over traditional navigable waters . . . and, generally speaking, their tributary systems (and adjacent wetlands).” 68 Fed. Reg. 1998. In addition, because SWANCC did not overrule Riverside Bayview, the Corps continues to assert jurisdiction over waters “ ‘neighboring’ ” traditional navigable waters and their tributaries. 68 Fed. Reg. 1997 (quoting 33 CFR § 328.3(c) (2002)). Even after SWANCC, the lower courts have continued to uphold the Corps’ sweeping assertions of jurisdiction over ephemeral channels and drains as “tributaries.” For example, courts have held that jurisdictional “tributaries” include the “intermittent flow of surface water through approximately 2.4 miles of natural streams and manmade ditches (paralleling and crossing under 1-64),” Treacy v. Newdunn Assoc., 344 F. 3d 407, 410 (CA4 2003); a “roadside ditch” whose water took “a winding, thirty-two-mile path to the Chesapeake Bay,” United States v. Deaton, 332 F. 3d 698, 702 (CA4 2003); irrigation ditches and drains that intermittently connect to covered waters, Community Assn. for Restoration of Environment v. Henry Bosma Dairy, 305 F. 3d 943, 954-955 (CA9 2002); Headwaters, Inc. v. Talent Irrigation Dist., 243 F. 3d 526, 534 (CA9 2001); and (most implausibly of all) the “washes and arroyos” of an “arid development site,” located in the middle of the desert, through which “water courses . . . during periods of heavy rain,” Save Our Sonoran, Inc. v. Flowers, 408 F. 3d 1113, 1118 (CA9 2005). These judicial constructions of “tributaries” are not outliers. Rather, they reflect the breadth of the Corps’ determinations in the field. The Corps’ enforcement practices vary somewhat from district to district because “the definitions used to make jurisdictional determinations” are deliberately left “vague.” GAO Report 26; see also id., at 22. But district offices of the Corps have treated, as “waters of the United States,” such typically dry land features as “arroyos, coulees, and washes,” as well as other “channels that might have little water flow in a given year.” Id., at 20-21. They have also applied that definition to such man-made, intermittently flowing features as “drain tiles, storm drains systems, and culverts.” Id., at 24 (footnote omitted). In addition to “tributaries,” the Corps and the lower courts have also continued to define “adjacent” wetlands broadly after SWANCC. For example, some of the Corps’ district offices have concluded, that wetlands are “adjacent” to covered waters if they are hydrologically connected “through directional sheet flow during storm events,” GAO Report 18, or if they lie within the “100-year floodplain” of a body of water — that is, they are connected to the navigable water by flooding, on average, once every 100 years, id., at 17, and n. 16. Others have concluded that presence within 200 feet of a tributary automatically renders a wetland “adjacent” and jurisdictional. Id., at 19. And the Corps has successfully defended such theories of “adjacency” in the courts, even after SWANCC’s excision of “isolated” waters and wetlands from the Act’s coverage. One court has held since SWANCC that wetlands separated from flood control channels by 70-foot-wide berms, atop which ran maintenance roads, had a “significant nexus” to covered waters because, inter alia, they lay “within the 100 year floodplain of tidal waters.” Baccarat Fremont Developers, LLC v. Army Corps of Engineers, 425 F. 3d 1150, 1152, 1157 (CA9 2005). In one of the cases before us today, the Sixth Circuit held, in agreement with “[t]he majority of courts,” that “while a hydrological connection between the non-navigable and navigable waters is required, there is no ‘direct abutment’ requirement” under SWANCC for “‘adjacency.’” 376 F. 3d 629, 639 (2004) (Rapanos II). And even the most insubstantial hydrologic connection may be held to constitute a “significant nexus.” One court distinguished SWANCC on the ground that “a molecule of water residing in one of these pits or ponds [in SWANCC] could not mix with molecules from other bodies of water” — whereas, in the case before it, “water molecules currently present in the wetlands will inevitably flow towards and mix with water from connecting bodies,” and “[a] drop of rainwater landing in the Site is certain to intermingle with water from the [nearby river].” United States v. Rueth Development Co., 189 F. Supp. 2d 874, 877-878 (ND Ind. 2002). II In these consolidated cases, we consider whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute “waters of the United States” within the meaning of the Act. Petitioners in No. 04-1034, the Rápanos and their affiliated businesses, deposited fill material without a permit into wetlands on three sites near Midland, Michigan: the “Salzburg site,” the “Hines Road site,” and the “Pine River site.” The wetlands at the Salzburg site are connected to a man-made drain, which drains into Hoppler Creek, which flows into the Kawkawlin River, which empties into Saginaw Bay and Lake Huron. See Brief for United States in No. 04-1034, p. 11; 339 F. 3d, at 449. The wetlands at the Hines Road site are connected to something called the “Rose Drain,” which has a surface connection to the Tittabawassee River. App. to Pet. for Cert, in No. 04-1034, pp. A23, B20. And the wetlands at the Pine River site have a surface connection to the Pine River, which flows into Lake Huron. Id., at A23-A24, B26. It is not clear whether the connections between these wetlands and the nearby drains and ditches are continuous or intermittent, or whether the nearby drains and ditches contain continuous or merely occasional flows of water. The United States brought civil enforcement proceedings against the Rapanos petitioners. The District Court found that the three described wetlands were “within federal jurisdiction” because they were “ 'adjacent to other waters of the United States,’ ” and held petitioners liable for violations of the CWA at those sites. Id., at B32-B35. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed, holding that there was federal jurisdiction over the wetlands at all three sites because “there were hydrological connections between all three sites and corresponding adjacent tributaries of navigable waters.” 376 F. 3d, at 643. Petitioners in No. 04-1384, the Carabells, were denied a permit to deposit fill material in a wetland located on a triangular parcel of land about one mile from Lake St. Clair. A man-made drainage ditch runs along one side of the wetland, separated from it by a 4-foot-wide man-made berm. The berm is largely or entirely impermeable to water and blocks drainage from the wetland, though it may permit occasional overflow to the ditch. The ditch empties into another ditch or a drain, which connects to Auvase Creek, which empties into Lake St. Clair. See App. to Pet. for Cert, in No. 04-1384, pp. 2a-3a. After exhausting administrative appeals, the Carabell petitioners filed suit in the District Court, challenging the exercise of federal regulatory jurisdiction over their site. The District Court ruled that there was federal jurisdiction because the wetland “is adjacent to neighboring tributaries of navigable waters and has a significant nexus to ‘waters of the United States.’” Id., at 49a. Again the Sixth Circuit affirmed, holding that the Carabell wetland was “adjacent” to navigable waters. 391 F. 3d 704, 708 (2004) (Carabell). We granted certiorari and consolidated the cases, 546 U. S. 932 (2005), to decide whether these wetlands constitute “waters of the United States” under the Act, and if so, whether the Act is constitutional. Ill The Rapanos petitioners contend that the terms “navigable waters” and “waters of the United States” in the Act must be limited to the traditional definition of The Daniel Ball, which required that the “waters” be navigable in fact, or susceptible of being rendered so. See 10 Wall, at 563. But this definition cannot be applied wholesale to the CWA. The Act uses the phrase “navigable waters” as a defined term, and the definition is simply “the waters of the United States.” 33 U. S. C. § 1362(7). Moreover, the Act provides, in certain circumstances, for the substitution of state for federal jurisdiction over “navigable waters ... other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce ... including wetlands adjacent thereto.” § 1344(g)(1) (emphasis added). This provision shows that the Act’s term “navigable waters” includes something more than traditional navigable waters. We have twice stated that the meaning of “navigable waters” in the Act is broader than the traditional understanding of that term, SWANCC, 531 U. S., at 167; Riverside Bayview, 474 U. S., at 133. We have also emphasized, however, that the qualifier “navigable” is not devoid of significance, SWANCC, supra, at 172. We need not decide the precise extent to which the qualifiers “navigable” and “of the United States” restrict the coverage of the Act. Whatever the scope of these qualifiers, the CWA authorizes federal jurisdiction only over “waters.” 33 U. S. C. § 1362(7). The only natural definition of the term “waters,” our prior and subsequent judicial constructions of it, clear evidence from other provisions of the statute, and this Court’s canons of construction all confirm that “the waters of the United States” in § 1362(7) cannot bear the expansive meaning that the Corps would give it. The Corps’ expansive approach might be arguable if the CWA defined “navigable waters” as “water of ±he United States.” But “the waters of the United States” is something else. The use of the definite article (“the”) and the plural number (“waters”) shows plainly that § 1362(7) does not refer to water in general. In this form, “the waters” refers more narrowly to water “[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes,” or “the flowing or moving masses, as of waves or floods, making up such streams or bodies.” Webster’s New International Dictionary 2882 (2d ed. 1954) (hereinafter Webster’s Second). On this definition, “the waters of the United States” include only relatively permanent, standing or flowing bodies of water. The definition refers to water as found in “streams,” “oceans,” “rivers,” “lakes,” and “bodies” of water “forming geographical features.” Ibid. All of these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. Even the least substantial of the definition’s terms, namely, “streams,” connotes a continuous flow of water in a permanent channel— especially when used in company with other terms such as “rivers,” “lakes,” and “oceans.” None of these terms encompasses transitory puddles or ephemeral flows of water. The restriction of “the waters of the United States” to exclude channels containing merely intermittent or ephemeral flow also accords with the commonsense understanding of the term. In applying the definition to “ephemeral streams,” “wet meadows,” storm sewers and culverts, “directional sheet flow during storm events,” drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term “waters of the United States” beyond parody. The plain language of the statute simply does not authorize this “Land Is Waters” approach to federal jurisdiction. In addition, the Act’s use of the traditional phrase “navigable waters” (the defined term) further confirms that it confers jurisdiction only over relatively permanent bodies of water. The Act adopted that traditional term from its predecessor statutes. See SWANCC, 531 U. S., at 180 (Stevens, J., dissenting). On the traditional understanding, “navigable waters” included only discrete bodies of water. For example, in The Daniel Ball, we used the terms “waters” and “rivers” interchangeably. 10 Wall., at 563. And in Appalachian Electric, we consistently referred to the “navigable waters” as “waterways.” 311 U. S., at 407-409. Plainly, because such “waters” had to be navigable in fact or susceptible of being rendered so, the term did not include ephemeral flows. As we noted in SWANCC, the traditional term “navigable waters” — even though defined as “the waters of the United States” — carries some of its original substance: “[I]t is one thing to give a word limited effect and quite another to give it no effect whatever.” 531 U. S., at 172. That limited effect includes, at bare minimum, the ordinary presence of water. Our subsequent interpretation of the phrase “the waters of the United States” in the CWA likewise confirms this limitation of its scope. In Riverside Bayview, we stated that the phrase in the Act referred primarily to “rivers, streams, and other hydrographic features more conventionally identifiable as ‘waters’” than the wetlands adjacent to such features. 474 U. S., at 131 (emphasis added). We thus echoed the dictionary definition of “waters” as referring to “streams and bodies forming geographical features such as oceans, rivers, [and] lakes.” Webster’s Second 2882 (emphasis added). Though we upheld in that case the 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_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. Robert Lynn SMITH, Appellant, v. UNITED STATES of America, Appellee. No. 18940. United States Court of Appeals Eighth Circuit. Nov. 1, 1967. James A. Cochrane, Jr., Finch, Finch, Knehans & Cochrane, Cape Girardeau, Mo., filed typewritten application to withdraw as counsel in this case.' No response to such application was filed by counsel for the government. Before MATTHES and LAY, Circuit Judges. PER CURIAM. This matter comes before this court on application for leave to withdraw as counsel. Appellant's trial counsel has been appointed by this court to represent him in his appeal from a conviction under Title 50, App. U.S.C.A. § 462, while wilfully and knowingly failing and neglecting to report to his draft board pursuant to the order of his board. Counsel has filed a short statement of facts and states that he has “reluctantly concluded that there is no genuine issue or legal point which can be raised upon this appeal.” Counsel has filed with the court cases which he argues conclusively show that the evidence in the case was solely one of fact below and that there is no arguable point or issue in the record to support the appeal. Counsel informs the court that the appellant would like to have as much time as possible to submit on his own behalf points he feels should be considered by the court. We feel this matter is controlled by Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed. 2d 811 (1963). As Mr. Justice Clark stated in Anders: “The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curise. The no-merit letter and the procedure it triggers does not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” It is apparent that counsel has made a good faith and conscientious examination of the record and it is upon this examination that he seeks permission to withdraw. However, we feel that the permission to withdraw from a direct appeal must be accompanied with a brief referring to anything in the record that might be argued on appeal, as well as a statement from counsel or the appellant as to the points the indigent chooses to raise upon appeal. Only under those circumstances can the court decide whether the case is frivolous. The present application is of little help to either the court or the client. The cause of advocacy is not served to read a brief filed by appellant’s own counsel asserting the government’s position in the case. See Harders v. State of California, 373 F.2d 839 (9 Cir. 1967); Camodeo v. United States, 387 U.S. 575, 87 S.Ct. 2070, 18 L.Ed.2d 966. We are of the opinion that under the present status of the record appellant is entitled to counsel upon appeal and it would be of lesser value to appoint other counsel. Application for leave to withdraw is denied. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_petitioner	027	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. UNITED STATES v. RUIZ No. 01-595. Argued April 24, 2002 Decided June 24, 2002 Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Thomas, J., filed an opinion concurring in the judgment, post, p. 633. Solicitor General Olson argued the cause for the United States. With him on the brief were Assistant Attorney General Chertoff, Deputy Solicitor General Dreeben, Irving L. Gornstein, and Jonathan L. Marcus. Steven F. Hubachek, by appointment of the Court, 534 U. S. 1126, argued the cause for respondent. With him on the brief was Benjamin L. Coleman A brief of amici curiae urging reversal was filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, David M. Gormley, State Solicitor, Stephen P. Carney, Associate Solicitor, Diane M. Welsh, and Dan Schweitzer, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Bo-telho of Alaska, Ken Salazar of Colorado, M. Jane Brady of Delaware, Carla J. Stovall of Kansas, Thomas F. Reilly of Massachusetts, Mike Moore of Mississippi, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Eliot Spitzer of New York, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Anabelle Rodriquez of Puerto Rico, Paul G. Summers of Tennessee, Mark L. Shurtleffoi Utah, William H. Sorrell of Vermont, and Hoke MacMillan of Wyoming. John T. Philipsborn and David M. Porter filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae. Justice Breyer delivered the opinion of the Court. In this case we primarily consider whether the Fifth and Sixth Amendments require federal prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose “impeachment information relating to any informants or other witnesses.” App. to Pet. for Cert. 46a. We hold that the Constitution does not require that disclosure. I After immigration agents found 30 kilograms of marijuana in Angela Ruiz’s luggage, federal prosecutors offered her what is known in the Southern District of California as a “fast track” plea bargain. That bargain — standard in that district — asks a defendant to waive indictment, trial, and an appeal. In return, the Government agrees to recommend to the sentencing judge a two-level departure downward from the otherwise applicable United States Sentencing Guidelines sentence. In Ruiz’s case, a two-level departure downward would have shortened the ordinary Guidelines-specified 18-to-24-month sentencing range by 6 months, to 12-to-18 months. 241 F. 3d 1157, 1161 (2001). The prosecutors’ proposed plea agreement contains a set of detailed terms. Among other things, it specifies that “any [known] information establishing the factual innocence of the defendant” “has been, turned over to the defendant,” and it acknowledges the Government’s “continuing duty to provide such information.” App. to Pet. for Cert. 45a-46a. At the same time it requires that the defendant “waiv[e] the right” to receive “impeachment information relating to any informants or other witnesses” as well as the right to receive information supporting any affirmative defense the defendant raises if the case goes to trial. Id., at 46a. Because Ruiz would not agree to this last-mentioned waiver, the prosecutors withdrew their bargaining offer. The Government then indicted Ruiz for unlawful drug possession. And despite the absence of any agreement, Ruiz ultimately pleaded guilty. At sentencing, Ruiz asked the judge to grant her the same two-level downward departure that the Government would have recommended had she accepted the “fast track” agreement. The Government opposed her request, and the District Court denied it, imposing a standard Guideline sentence instead. 241 F. 3d, at 1161. Relying on 18 U. S. C. § 3742, see infra, at 627, 628-629, Ruiz appealed her sentence to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit vacated the District Court’s sentencing determination. The Ninth Circuit pointed out that the Constitution requires prosecutors to make certain impeachment information available to a defendant before trial. 241 F. 3d, at 1166. It decided that this obligation entitles defendants to receive that same information before they enter into a plea agreement. Id., at 1164. The Ninth Circuit also decided that the Constitution prohibits defendants from waiving their right to that information. Id., at 1165-1166. And it held that the prosecutors’ standard “fast track” plea agreement was unlawful because it insisted upon that waiver. Id., at 1167. The Ninth Circuit remanded the case so that the District Court could decide any related factual disputes and determine an appropriate remedy. Id., at 1169. The Government sought certiorari. It stressed what it considered serious adverse practical implications of the Ninth Circuit’s constitutional holding. And it added that the holding is unique among courts of appeals. Pet. for Cert. 8. We granted the Government’s petition. 534 U. S. 1074 (2002). II At the outset, we note that a question of statutory jurisdiction potentially blocks our consideration of the Ninth Circuit’s constitutional holding. The relevant statute says that a “defendant may file a notice of appeal... for review ... if the sentence “(1) was imposed in violation of law; “(2) was imposed as a result of an incorrect application of the sentencing guidelines; or “(3) is greater than [the Guideline] specified [sentence] .. .; or “(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.” 18 U. S. C. § 3742(a). Every Circuit has held that this statute does not authorize a defendant to appeal a sentence where the ground for appeal consists of a claim that the district court abused its discretion in refusing to depart. See, e. g., United States v. Conway, 81 F. 3d 15, 16 (CA1 1996); United States v. Lawal, 17 F. 3d 560, 562 (CA2 1994); United States v. Powell, 269 F. 3d 175, 179 (CA3 2001); United States v. Ivester, 75 F. 3d 182, 183 (CA4 1996); United States v. Cooper, 274 F. 3d 230, 248 (CA5 2001); United States v. Scott, 74 F. 3d 107, 112 (CA6 1996); United States v. Byrd, 263 F. 3d 705, 707 (CA7 2001); United States v. Mora-Higuera, 269 F. 3d 905, 913 (CA8 2001); United States v. Garcia-Garcia, 927 F. 2d 489, 490 (CA9 1991); United States v. Coddington, 118 F. 3d 1439, 1441 (CA10 1997); United States v. Calderon, 127 F. 3d 1314, 1342 (CA11 1997); In re Sealed Case No. 98-3116, 199 F. 3d 488, 491-492 (CADC 1999). The statute does, however, authorize an appeal from a sentence that “was imposed in violation of law.” Two quite different theories might support appellate jurisdiction pursuant to that provision. First, as the Court of Appeals recognized, if the District Court’s sentencing decision rested on a mistaken belief that it lacked the legal power to grant a departure, the quoted provision would apply. 241 F. 3d, at 1162, n. 2. Our reading of the record, however, convinces us that the District Judge correctly understood that he had such discretion but decided not to exercise it. We therefore reject that basis for finding appellate jurisdiction. Second, if respondent’s constitutional claim, discussed in Part III, infra, were sound, her sentence would have been “imposed in violation of law.” Thus, if she had prevailed on the merits, her victory would also have confirmed the jurisdiction of the Court of Appeals. Although we ultimately conclude that respondent’s sentence was not “imposed in violation of law” and therefore that § 3742(a)(1) does not authorize an appeal in a case of this kind, it is familiar law that a federal court always has jurisdiction to determine its own jurisdiction. See United States v. Mine Workers, 330 U. S. 258, 291 (1947). In order to make that determination, it was necessary for the Ninth Circuit to address the merits. We therefore hold that appellate jurisdiction was proper. III The constitutional question concerns a federal criminal defendant’s waiver of the right to receive from prosecutors exculpatory impeachment material — a right that the Constitution provides as part of its basic “fair trial” guarantee. See U. S. Const., Arndts. 5, 6. See also Brady v. Maryland, 373 U. S. 83, 87 (1963) (Due process requires prosecutors to “avoi[d] ... an unfair trial” by making available “upon request” evidence “favorable to an accused . . . where the evidence is material either to guilt or to punishment”); United States v. Agurs, 427 U. S. 97, 112-113 (1976) (defense request unnecessary); Kyles v. Whitley, 514 U. S. 419, 435 (1995) (exculpatory evidence is evidence the suppression of which would “undermine confidence in the verdict”); Giglio v. United States, 405 U. S. 150, 154 (1972) (exculpatory evidence includes “evidence affecting” witness “credibility,” where the witness’ “reliability” is likely “determinative of guilt or innocence”). When a defendant pleads guilty he or she, of course, forgoes not only a fair trial, but also other accompanying constitutional guarantees. Boykin v. Alabama, 395 U. S. 238, 243 (1969) (pleading guilty implicates the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to confront one’s accusers, and the Sixth Amendment right to trial by jury). Given the seriousness of the matter, the Constitution insists, among other things, that the defendant enter a guilty plea that is “voluntary” and that the defendant must make related waivers “knowing[ly], intelligently], [and] with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U. S. 742, 748 (1970); see also Boykin, supra, at 242. In this case, the Ninth Circuit in effect held that a guilty plea is not “voluntary” (and that the defendant could not, by pleading guilty, waive her right to a fair trial) unless the prosecutors first made the same disclosure of material impeachment information that the prosecutors would have had to make had the defendant insisted upon a trial. We must decide whether the Constitution requires that preguilty plea disclosure of impeachment information. We conclude that it does not. First, impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary (“knowing,” “intelligent,” and “sufficient[ly] aware”). Of course, the more information the defendant has, the more aware he is of the likely consequences of a plea, waiver, or decision, and the wiser that decision will likely be. But the Constitution does not require the prosecutor to share all useful information with the defendant. Weatherford v. Bursey, 429 U. S. 545, 559 (1977) (“There is no general constitutional right to discovery in a criminal case”). And the law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances — even though the defendant may not know the specific detailed consequences of invoking it. A defendant, for example, may waive his right to remain silent, his right to a jury trial, or his right to counsel even if the defendant does not know the specific questions the authorities intend to ask, who will likely serve on the jury, or the particular lawyer the State might otherwise provide. Cf. Colorado v. Spring, 479 U. S. 564, 573-575 (1987) (Fifth Amendment privilege against self-incrimination waived when defendant received standard Miranda warnings regarding the nature of the right but not told the specific interrogation questions to be asked). It is particularly difficult to characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant. The degree of help that impeachment information can provide will depend upon the defendant’s own independent knowledge of the prosecution’s potential case — a matter that the Constitution does not require prosecutors to disclose. Second, we have found no legal authority embodied either in this Court’s past cases or in cases from other circuits that provides significant support for the Ninth Circuit’s decision. To the contrary, this Court has found that the Constitution, in respect to a defendant’s awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor. See Brady v. United States, 397 U. S., at 757 (defendant “misapprehended the quality of the State’s case”); ibid, (defendant misapprehended “the likely penalties”); ibid, (defendant failed to “anticipate” a change in the law regarding relevant “punishments”); McMann v. Richardson, 397 U. S. 759, 770 (1970) (counsel “misjudged the admissibility” of a “confession”); United States v. Broce, 488 U. S. 563, 573 (1989) (counsel failed to point out a potential defense); Tollett v. Henderson, 411 U. S. 258, 267 (1973) (counsel failed to find a potential constitutional infirmity in grand jury proceedings). It is difficult to distinguish, in terms of importance, (1) a defendant’s ignorance of grounds for impeachment of potential witnesses at a possible future trial from (2) the varying forms of ignorance at issue in these cases. Third, due process considerations, the very considerations that led this Court to find trial-related rights to exculpatory and impeachment information in Brady and Giglio, argue against the existence of the “right” that the Ninth Circuit found here. This Court has said that due process considerations include not only (1) the nature of the private interest at stake, but also (2) the value of the additional safeguard, and (8) the adverse impact of the requirement upon the Government’s interests. Ake v. Oklahoma, 470 U. S. 68, 77 (1985). Here, as we have just pointed out, the added value of the Ninth Circuit’s “right” to a defendant is often limited, for it depends upon the defendant’s independent awareness of the details of the Government’s case. And in any case, as the proposed plea agreement at issue here specifies, the Government will provide “any information establishing the factual innocence of the defendant” regardless. That fact, along with other guilty-plea safeguards, see Fed. Rule Crim. Proc. 11, diminishes the force of Ruiz’s concern that, in the absence of impeachment information, innocent individuals, accused of crimes, will plead guilty. Cf. McCarthy v. United States, 394 U. S. 459, 465-467 (1969) (discussing Rule ll’s role in protecting a defendant’s constitutional rights). At the same time, a constitutional obligation to provide impeachment information during plea bargaining, prior to entry of a guilty plea, could seriously interfere with the Government’s interest in securing those guilty pleas that are factually justified, desired by defendants, and help to secure the efficient administration of justice. The Ninth Circuit’s rule risks premature disclosure of Government witness information, which, the Government tells us, could “disrupt ongoing investigations” and expose prospective witnesses to serious harm. Brief for United States 25. Cf. Amendments to Federal Rules of Criminal Procedure: Hearings before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Cong., 1st Sess., 92 (1975) (statement of John C. Keeney, Acting Assistant Attorney General, Criminal Div., Dept, of Justice) (opposing mandated witness disclosure three days before trial because of documented instances of witness intimidation). And the careful tailoring that characterizes most legal Government witness disclosure requirements suggests recognition by both Congress and the Federal Rules Committees that such concerns are valid. See, e. g., 18 U. S. C. § 3432 (witness list disclosure required in capital cases three days before trial with exceptions); § 3500 (Government witness statements ordinarily subject to discovery only after testimony given); Fed. Rule Crim. Proe. 16(a)(2) (embodies limitations of 18 U. S. C. §3500). Compare 156 F. R. D. 460, 461-462 (1994) (congressional proposal to significantly broaden §3500) with 167 F. R. D. 221, 223, n. (judicial conference opposing congressional proposal). Consequently, the Ninth Circuit’s requirement could force the Government to abandon its “general practice” of not “disclosing] to a defendant pleading guilty information that would reveal the identities of cooperating informants, undercover investigators, or other prospective witnesses.” Brief for United States 25. It could require the Government to devote substantially more resources to trial preparation prior to plea bargaining, thereby depriving the plea-bargaining process of its main resource-saving advantages. Or it could lead the Government instead to abandon its heavy reliance upon plea bargaining in a vast number — 90% or more — of federal criminal cases. We cannot say that the Constitution’s due process requirement demands so radical a change in the criminal justice process in order to achieve so comparatively small a constitutional benefit. These considerations, taken together, lead us to conclude that the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant. In addition, we note that the “fast track” 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. STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. Nina Bowen HORNE, Defendant-Appellant. No. 85-8833. United States Court of Appeals, Eleventh Circuit. July 23, 1986. Lester B. Johnson, III, Savannah, Ga., for defendant-appellant. Michael J. Goldman, Atlanta, Ga., for plaintiff-appellee. Before KRAVITCH and HATCHETT, Circuit Judges, and TUTTLE, Senior Circuit Judge. TUTTLE, Senior Circuit Judge: This is an appeal by Nina Bowen Horne from a district court order granting summary judgment to plaintiff/appellee State Automobile Insurance Company (hereafter, “State Auto”) in its action for declaratory judgment to determine whether it was required to extend to Home full optional ($50,000) Personal Injury Protection (“PIP”) coverage on her automobile liability insurance policy. We affirm the ruling of the district court that the company was not required to extend appellant Home the additional protection. STATEMENT OF THE FACTS On September 12, 1980, John Chokos of Pederson-Chokos and Company, an independent insurance agency, which solicits insurance applications for numerous insurance companies, met with appellant Home and her mother to renew various insurance policies taken out by the Homes, collect the required premiums, and acquire their signatures on the various policy applications. Chokos had apparently been performing this service for the Hornes for a number of years past. Included in the policies discussed was an application for standard automobile liability insurance with appellee State Auto. The application has two separate sections. The first contains the basic liability application with a signature space at the end. The second, labeled “Offer to Purchase Optional Coverages” contains within an application for additional, optional, personal injury protection (“PIP”) above and beyond the $5,000 coverage included in the basic standard, liability policy. This section of the application has the heading: “Personal Injury Protection ($5,000 coverage included in your basic premium charges).” To receive the additional coverage, there are spaces indicating the amount of extra-insurance sought from $10,000 to $50,000. Additionally, there is a separate clause and blank space following stating: “I reject all PIP options below.” At the end of the one page second section is a separate signature space for the insured to sign. According to appellant, Chokos, in whom she had “complete confidence” did not explain the contents of this policy, nor did she question him about it. However, at his request, she simply signed both sections of the automobile liability insurance application. She contends that she additionally told Chokos that she wanted the maximum PIP protection. The application that was eventually received and accepted by State Auto, although requesting several other forms of optional insurance, indicated on the form by various checkmarks, expressly waived the optional PIP protection by a checkmark next to the “I reject all PIP options below” statement on the form. Horne claims that Chokos made the check-marks in the blanks on the form after she had signed it. Appellee disputes appellant’s view of the events leading to the filing of the application, stating that Cho-kos “made the appropriate checkmarks as per Ms. Home’s instructions, providing minimum $5,000 personal injury protection, dated the application, and presented Ms. Horne with the form for her review and signature.” Once signed, he forwarded the application to State Auto for its consideration. State Auto issued the policy in question in early October, 1980, by delivering it to Chokos who in turn forwarded the document to appellant. Home, however, never requested any change in the policy and on January 13, 1981 she was involved in an automobile accident, following which she claimed and received $5,000 in PIP benefits. On March 9,1984 she made a demand for $50,000 in optional PIP benefits and tendered the additional premium to State Auto. The insurance company refused to provide the extra benefits and subsequently commenced a declaratory judgment action in U.S. District Court to determine whether it was required to extend the full optional ($50,000) coverage to Home. The court below entered summary judgment in favor of State Auto, declaring that the optional benefit selector form used by State Auto and signed by Horne was in substantial compliance with Georgia statute O.C.G.A. § 33-34-5(b) as interpreted by St. Paul Fire & Marine Ins. Co. v. Nixon, 252 Ga. 469, 314 S.E.2d 215 (1984) and its progeny. Thus the court found that as a matter of law, appellant made a knowing and intentional waiver of her right to optional PIP benefits when she signed the form. Additionally, it found that State Auto had no obligation to make any more payments to Horne because as a matter of law, Chokos was her agent and, as such, even if he did make the checkmarks on the form after she had signed it, she was bound by that action. Following entry of final judgment in the action, this appeal ensued. ISSUES PRESENTED 1. Whether the district court erred when it granted appellee’s State Automobile Mutual Insurance Company’s motion for summary judgment when it concluded appellee’s application was in substantial compliance with O.C.G.A. § 33-34-5(b). 2. Whether the district court erred when it granted appellee’s State Automobile Mutual Insurance Company’s motion for summary judgment when it concluded that Pederson-Chokos was not appellee’s agent. DISCUSSION Appellant Horne has raised two issues on appeal. She first argues that the district court erred in finding that the automobile liability insurance application form used by State Auto here was proper under Georgia law. We cannot agree with appellant. Under the Georgia Code’s automobile liability insurance provision in effect at the time the policy at issue in this case was promulgated, it was stated that: (a) Each insurer shall also make available on an optional basis the following coverage: (1) an aggregate limit of benefits payable without regard to fault up to $50,000 per person, which may be rejected or reduced to not less than an aggregate limit of benefits payable without regard to fault of $5,000 per person by written consent of the policy holder ... (b) Each application for a policy of motor vehicle liability insurance sold in this state must contain separate spaces for the insured to indicate his acceptance or rejection of each of the optional coverages listed in subsection (a) of this code section and no such policy shall be issued in this state unless the spaces are completed and signed by the prospective insured. O.C.G.A. § 33-34-5(a), (b). To determine whether an application complied with these requirements, the Georgia Supreme Court in St Paul Fire & Marine Insurance Co. v. Nixon, 252 Ga. 469, 314 S.E.2d 215 (1984), developed what has been labeled the “substantial compliance test.” In the opinion, the court approved an insurance application form with one signature space for the portion of the application containing basic information and a second signature space pertaining to the insurer’s “Offer to Purchase Additional Coverage Application.” The court stated that: Here, as in Nalley (Nalley v. Select Insurance Co., 251 Ga. 722 [313 S.E.2d 465] (1983)), although the optional-coverage application has only one signature, it is clear from the form of the application that the intent of the insured was to reject optional PIP benefits and vehicle-damage protection. Therefore, we hold that, ‘the form is in substantial compliance with the statutory requirement, O.C.G.A. § l-3-l(c) (Code Ann. § 102-102), and satisfies the intent of the General Assembly to ensure “ ‘that insurers offer optional coverages to applicants for no-fault insurance and that an applicant’s waiver of his privilege to obtain coverages be made knowingly and in writing.’ ” Flewellen, supra, 250 Ga. [709] at 714 [300 S.E.2d 673 (1983)].’ Nalley v. Select Ins. Co., 251 Ga., supra, p. 724 [313 S.E.2d 465]. St. Paul v. Nixon, 252 Ga. at 470, 314 S.E.2d 215. An application form thus is in compliance with the statute’s requirements if it reasonably evidences the insured’s awareness of and rejection of his right to optional no-fault coverages. In the present case, the form used by State Auto clearly meets the standard set by the state statute. The form discussing optional coverages, similar to that approved in Nixon, is on a separate page, displays the optional coverages required to be offered, provides separate clauses and spaces for rejection of each of the options, and has a signature line at its bottom, which is in addition to the signature space for the general portion of the insurance application. The form reasonably presents the optional coverages and places a reasonable person in the position of an insured with a clear awareness of the coverages and thus is in “substantial compliance” with the statute. The district court was correct in upholding the propriety of this form. Appellant also challenges the district court’s determination that Pederson-Chokos did not act as State Auto’s agent in the transaction in question. We agree with the court’s decision on this matter. The Georgia Court of Appeals has ruled that in questions of agency involving insurance brokers, such as Pederson-Chokos, insurance companies, and insureds, “while insurance agents or brokers may be considered as ‘dual' agents, or agents for both the insurer and the insured, normally such insurance representatives are independent insurance brokers and are the insured’s agents, not those of the insurer.” National Property Owners Ins. Co. v. Wells, 166 Ga.App. 281, 282, 304 S.E.2d 458 (1983) (citations omitted.) In this case, it is quite clear that Chokos cannot be considered to have acted as an agent for State Auto. His company, Pederson-Chokos, is an independent insurance agency which takes applications from its customers and places automobile liability insurance with a number of different companies, State Auto only one of several. The agency was under no obligation to submit applications to State Auto nor did State Auto have any ownership interest in it. Pederson-Chokos merely prepared applications requesting insurance and forwarded them to appellee. State Auto completely retained the power to accept or reject the applications. Additionally, there were no signs posted on the building housing Pederson-Chokos’ offices, indicating a relationship between State Auto and the agency. The district court was correct in determining on summary judgment that Pederson-Chokos did not function in this case as an agent for appel-lee State Auto. The judgment of the district court is therefore AFFIRMED. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_treat	B	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. ASSOCIATED GENERAL CONTRACTORS OF MASSACHUSETTS, INC., et al., Plaintiffs-Appellants. v. Alan ALTSHULER et al., Defendants-Appellees. No. 73-1250. United States Court of Appeals, First Circuit. Heard Oct. 2, 1973. Decided Nov. 30, 1973. Certiorari Denied April 22, 1974. See 94 S.Ct. 1971. James J. O’Leary, Boston, Mass., with whom Joseph P. Rooney, Ansel B. Chaplin, Gaston, Snow, Motley & Holt, Boston, Mass., and James E. Flynn, Jr., Cambridge, Mass., were on brief, for plaintiff s-appellants. Dennis L. Ditelberg, Asst. Atty. Gen., and Gershon M. Ratner, Boston, Mass., with whom Robert H. Quinn, Atty. Gen., John F. Houton, Asst. Atty. Gen., Michael J. Hoare, Sp. Asst. Atty. Gen., Benjamin Jones, and Robert City, Boston, Mass., were on brief, for defendants-appellees. Robert T. Moore, Atty., Dept, of Justice, with whom William J. Kilberg, Sol. of Labor, J. Stanley Pottinger, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., and David L. Rose, Atty., Dept, of Justice, were on brief, for The Secretary of Labor of The United States, amicus curiae. Jerry Cohen, Morris Shubow, John Henn, John Reinstein, Matthew Fein-berg, Charles A. Levin, Mark A. Michelson, and Stephen R. Moore on brief for Civil Liberties Union and American Jewish Congress, New England Region, amici curiae. Before COFFIN, Chief Judge, MOORE and McENTEE, Circuit Judges. Of the Second Circuit, sitting by designation. COFFIN, Chief Judge. This is an appeal from a judgment sustaining, as constitutional and in accord with state law, certain contract requirements imposed by the Commonwealth of Massachusetts upon contractors engaged in publicly funded construction work at Boston State College. Appellants are thirteen individual construction companies, now engaged in construction of public buildings for the Commonwealth, and a membership corporation comprised of one hundred forty-five general contracting firms which together perform approximately eighty per cent of all construction in the Commonwealth. Each of the appellants was a prospective bidder for the Boston State College contract. In relevant part, § IB of the contract requires that the contractor “. . . maintain on his project, which is located in an area in which thére are high concentrations of minority group persons, a not less than twenty percent ratio of minority employee man hours to total employee man hours in each job category ft Section V, ¶ 3, of the contract provides, however, that the contractor must hire only “competent” workers. The Secretary of Transportation and Construction for the Commonwealth, who is charged with enforcing the contract provisions, interprets this to mean that § IB requires the hiring of only “qualified” workers. The district court has interpreted the contract in the same way. The contract also requires that the contractor engage in special referral procedures as well as traditional referral methods, cooperate with a Liaison Committee composed of various representatives from community groups, make weekly compliance reports to the Liaison Committee and the Massachusetts Commission Against Discrimination (M.C. A.D.), and permit the M.C.A.D. access to books, records, and accounts containing employment information. The contract further stipulates that the M.C.A.D. will investigate any alleged non-compliance with the contract terms and notify the contractor of both its findings and recommendations as to how he might comply with the terms. If the contractor fails to accept the recommendations and in addition the M.C.A.D. determines that the contractor has not taken “every possible measure to achieve compliance”, the M.C.A.D. will report its findings to the Bureau of Construction and recommend that specific sanctions be imposed. Before imposing any sanctions, however, pursuant to the Commonwealth’s Administrative Procedures Act, M.G.L.A. c. 30A §§ 10, 11, and according to the Secretary of Transportation and Construction, the Bureau will provide the contractor with notice of the findings and a hearing in which he may challenge them. Because the federal government pays a portion of the construction costs of the Boston State project, contractors are also required to accept federal bid conditions, promulgated by the United States Secretary of Labor pursuant to § 201 of Executive Order No. 11246 (30 F.R. 12319, as amended, 32 F.R. 14303; 34 F.R. 12985) and 41 C.F.R. 60. The specific contractual elements of the federal bid conditions are derived from the Boston Area Construction Program (the Boston Plan), a “hometown” equal employment opportunity plan prepared by the local construction industry in cooperation with the Department of Labor. Unlike the Commonwealth’s § IB, the federal Boston Plan sets area-wide percentage objectives for minority hiring within each trade, rather than percentage goals for each project. Under the Boston Plan the responsibility for fulfilling the objectives does not lie with the individual contractor; he merely agrees to hire whatever minority workers are referred to him by the trades unions in the course of the plan’s operation. Moreover, while § IB requires that contractors take “every possible measure” to comply with the contract terms, the Boston Plan necessitates merely a “good faith” effort by the contractor. A fourth point of difference between the two plans is that the Boston Plan places the burden of proving noncompliance upon the government agency, while § IB places the burden of proving compliance, once non-compliance has been alleged, upon the contractor himself. Appellants challenge the constitutionality of § IB of the contract requirements imposed by the Commonwealth on three grounds: They contend, first, that' § IB varies so significantly from the federal bid conditions of the Boston Plan that it violates the Supremacy Clause of Article VI; second, that § IB imposes a fixed racial hiring quota which violates the Equal Protection clause of the Fourteenth Amendment; and finally, that § IB permits the imposition of sanctions without proper notice or an opportunity to be heard, in violation of the Due Process clause of the Fourteenth Amendment. Appellants also contend, pursuant to the pendent jurisdiction of this court, that § IB involves the M.C.A.D. in activities which go beyond the scope of its enabling legislation. I In order to deal with appellants’ first contention, that § IB violates the Supremacy Clause because the federal Boston Plan must necessarily preempt § IB, it is necessary to set out the context in which this case arises. We note at the outset that the construction industry has been particularly slow, throughout the nation, to open itself to racial minorities. For this reason, in 1967 the federal government launched pilot plans in several cities designed to increase minority employment on federally funded construction projects by way of “affirmative action” programs. Executive Order 11246, under which the Secretary of Labor was authorized to promulgate such programs, required that contractors “take affirmative action to ensure that applicants are employed . . . without regard to race . . . . ” Affirmative action itself was defined as “specific steps to guarantee equal employment opportunity keyed to the problems and needs of members of minority groups, including, when there are deficiencies, the development of specific goals and time tables ” After several different affirmative action programs had been implemented, with varying degrees of success, in 1970 the government permitted particular communities to develop their own “hometown” affirmative action programs. If the Secretary of Labor approved the plans, the plans would receive federal funding, and local contractors who complied with them would thereby comply with the mandate of Executive Order 11246. The Boston Plan emerged from negotiations between representatives . of buildings trades unions, contractors, and minority communities in the Boston area, and was approved by the Secretary of Labor in the fall of 1970. Although it fulfilled its first year goal of training and placing three hundred sixty minority workers, relationships with the minority community representatives deteriorated to the extent that the Department of Labor withheld second year funding until a revised plan could be negotiated. The new plan, beginning operations in January, 1972, did not have the participation of representatives of Boston’s minority communities. In addition, although put into effect two years after the original Boston Plan had commenced, the revised plan retained the same minority employment goal as that of the original plan. At about the same time as the revised Boston Plan was put into effect, the Commonwealth began an inquiry of its own into the need for a separate state affirmative action program. The inquiry revealed that despite the existence of the federal Boston Plan, minority membership in all of the nineteen participating unions amounted to less than four per cent of union membership, while minorities comprised approximately twenty-three per cent of the population of Boston. Since virtually all of the contractors who engage in state funded projects rely upon these predominantly white unions for workers, minority employment in the construction trades continued to be extremely low. The Commonwealth also determined that the Boston Plan had no provision for the collection of reliable data on the actual number of hours worked by minority workers placed on construction jobs. Finally, in the opinion of the Commonwealth’s Office of Transportation and Construction, the Boston Plan lacked adequate enforcement machinery. On the basis of these findings the Commonwealth concluded that the federal Boston Plan had not gone far enough, and that a separate, state affirmative action program was required for construction projects in which state funds were committed. The contract for the construction of Boston State College is the first to incorporate both the Commonwealth’s own § IB bid conditions, promulgated under authority of the Governor’s Executive Order No. 74, and the federal Boston Plan bid conditions. The Assistant Secretary of Transportation and Construction for the Commonwealth has determined that there exist adequate journeymen, apprentices, and trainees within Boston’s minority community to provide at least twenty per cent of the work force for the project, as well as for other projects anticipated in the area. It is estimated that the total work force required for the Boston State Project will vary between forty-seven and one hundred fifty persons; contractors on the project must therefore take “every possible measure” to employ between ten and thirty qualified minority workers. Appellants contend that because the Commonwealth’s § IB affirmative action program places different requirements upon contractors than those of the Boston Plan, the two are in conflict, and that the state plan must therefore be declared invalid. Appellants point out, most particularly, that under § IB, contractors must bear the burden of showing that they have taken “every possible measure” to comply, whereas under the Boston Plan, they must have made merely a “good faith effort” and the burden of showing non-compliance rests with the government agency. They also stress that the record keeping and referral requirements of § IB are more onerous than those of the Boston Plan. In deciding whether state regulations should be invalidated because they conflict with federal law, courts have tended to examine both the possibility of broad conflict in “purposes and objectives” between the two schemes, Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1940), and the likelihood of specific conflict in the implementation of the two programs. Clearly, the broad purposes which lay behind the federal Boston Plan and the Commonwealth’s § IB are congruent. Affirmative action, defined in the President’s Executive Order as “ . steps to guarantee equal employment . including . . . the development of specific goals and time tables . ” has the same meaning as affirmative action as defined in the Governor’s Executive Order: “ . . . positive and aggressive measures to insure equal opportunity.” Both plans envisage minority hiring goals as a means of achieving equal opportunity. Nothing in the President’s Executive Order requires that affirmative action taken under the Order be uniform throughout the country, nor does it necessitate that the federal government be the source for every program. An important aspect of federal implementation is the development of “hometown” plans, conceived and developed by local contractors, unions, and minority representatives. And in at least one instance the federal government has relied upon a plan originally conceived by state officials for their own state funded contracts. See Illinois Builders Ass’n v. Ogilvie, 327 F.Supp. 1154 (S.D. Ill. 1971) , aff’d, 471 F.2d 680 (7th Cir. 1972) . Nor is there any indication that the federal government has intended to preempt this field. Federal preemption should not be presumed, absent “a clear manifestation of intention” to preempt the field. Schwartz v. Texas, 344 U.S. 199, 202-203, 73 S.Ct. 232, 97 L.Ed. 231 (1952); see also New York State Department of Social Service v. Dublino, 405 U.S. 413, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973). The President’s Executive Order merely requires that contractors take some “affirmative action” and directs the Secretary of Labor to “use his best efforts” through “state and local agencies” as well as federal agencies. The Secretary of Labor has stated, as amicus curiae, that the federal program is not meant to preempt state programs such as the Commonwealth’s § IB. And congressional policy in this area, as expressed in Title VII of the Civil Rights Act of 1964, the statute most closely analogous to the President’s Executive Order, is clearly one of encouraging state cooperation and initiative in remedying racial discrimination. Title VII, 42 U.S.C. § 2000h-4 expressly disclaims any intent to preempt state action. See also Voutsis v. Union Carbide, 452 F.2d 889 (2d Cir. 1971), cert, denied, 406 U. S. 918, 92 S.Ct. 1768, 32 L.Ed.2d 117 (1971). Even if there is no conflict between the purposes and objectives of the two schemes, the state plan might still be invalid if there is a showing of “such actual conflict between the two schemes of regulation that both cannot stand in the same area . . . .” Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963); see also Perez v. Campbell, 402 U.S. 637, 649-653, 91 S. Ct. 1704, 29 L.Ed.2d 233 (1971). While we acknowledge that § IB may be more demanding than the Boston Plan, and may well involve higher administrative costs, there is no reason to suppose that contractors could not comply with both at the same time. By complying with § IB’s minority hiring goals on projects funded by both the state and the federal government, contractors would also comply with the Boston Plan’s goals. The reporting requirements are different for the two plans, but this merely necessitates the filing of two different sets of reports. The only place where the two plans might be found slightly incompatible is in the area of trade union referrals. Recognizing that union reluctance to admit minorities to apprenticeship programs has been one primary reason for the small percentage of minorities in the construction trades, the Boston Plan focusses upon encouraging areawide minority recruitment into the unions, and therefore does not alter the patterns of contractor reliance upon the unions for referrals. The Commonwealth’s § IB, however, facilitates referrals from sources other than the unions by providing alternative mechanisms for recruiting minority workers. We think, however, that there is little likelihood that § IB would discourage union initiative in training and recruiting minorities. The Commonwealth’s program will operate on a small scale, only within neighborhoods with a high minority population; the contractors for the Boston College project are required to employ approximately thirty minority workers. The federal Boston Plan is designed to train and place three hundred sixty minority workers each year drawn from all over the state. Therefore, despite the Commonwealth’s program, buildings trades unions will be obligated to continue their efforts at recruiting minority workers and referring them to contractors. Furthermore, the Commonwealth’s program does not prohibit union referrals. It merely provides other sources for referrals. Thus, § IB might actually induce a stepped-up program of union recruitment if the unions are desirous of maintaining contractor reliance upon union referrals. We conclude, therefore, that § IB presents no challenge to the Supremacy Clause. II Appellant’s second contention, that the Commonwealth’s § IB imposes a fixed racial hiring quota which violates the Equal Protection clause of the Fourteenth Amendment, presents a more difficult issue, the implications of which stretch far beyond this particular dispute. The first Justice Harlan’s much quoted observation that “the Constitution [is colorblind] . . . [and] does not . permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights”, Plessy v. Ferguson, 163 U.S. 537, 554, 16 S.Ct. 1138, 1145, 41 L.Ed. 256 (1896) (dissenting opinion) has come to represent a long-term goal. It is by now well understood, however, that our society cannot be completely colorblind in the short term if we are to have a colorblind society in the long term. After centuries of viewing through colored lenses, eyes do not quickly adjust when the lenses are removed. Discrimination has a way of perpetuating itself, albeit unintentionally, because the resulting inequalities make new opportunities less accessible. Preferential treatment is one partial prescription to remedy our society’s most intransigent and deeply rooted inequalities. Intentional, official recognition of race has been found necessary to achieve fair and equal opportunity in the selection of grand juries, Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966); tenants for public housing, Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968); Gautreaux v. Chicago Housing Authority, 304 F. Supp. 736 (N.D. Ill. 1969); school administrators, Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970); and children who are to attend a specific public school, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The intentional, official recognition of race in the selection of union members or construction workers has been constitutionally tested and upheld' in two contexts. The first is where courts have ordered, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g), remedial action for past discrimination. In fulfilling their “duty to render a decree which will so far as possible eliminate the discriminatory effects of the past . . . ”, Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965), courts have ordered unions to grant immediate membership to a number of minority applicants, United States v. Wood, Wire, and Metal Lathers International Union, Local No. 46, 471 F.2d 408 (2d Cir. 1973), cert, denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973); to begin an affirmative minority recruitment program, United States v. Sheet Metal Workers International Ass’n, Local No. 36, 416 F.2d 123 (8th Cir. 1969); to match normal referrals with minority referrals until a specific objective has been obtained, Heat and Frost Workers, Local 53 v. Vogler, 407 F.2d 1047 (5th Cir. 1969); or to take on a certain number of minority apprentices for each class of workers, United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir. 1971), cert, denied, 404 U. S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971). Courts have also ordered employers to hire minority employees up to thirty per cent of the total work force, Stamps v. Detroit Edison, 365 F.Supp. 87 (E.D. Mich. 1973); to hire one minority worker every time two white workers were hired, up to a certain number, Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert, denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972); and in our own Castro v. Beecher, 459 F.2d 725 (1972), we order that black and Spanish-speaking applicants for police positions, who had failed to measure up to a constitutionally impermissible set of hiring standards, be given priority in future hiring. The second context in which race has been recognized as a permissible criterion for employment is where courts have upheld federal affirmative action programs against challenges under the Equal Protection clause or under the anti-preference provisions of Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e-2(j). Recognizing that the discretionary power of public authorities to remedy past discrimination is even broader than that of the judicial branch, see Swann v. Charlotte-Mecklenburg, supra at 16 of 402 U.S., 91 S.Ct. 1267; cf. Katzenbach v. Morgan, 384 U.S. 641, 653, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), courts have upheld the specific percentage goals and time tables for minority hiring found in the Philadelphia Plan, Contractors Ass’n of Eastern Pennsylvania v. Secretary of Labor, 311 F.Supp. 1002 (E.D. Pa. 1970), aff’d, 442 F.2d 159 (3d Cir. 1971), cert, denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971), the Cleveland Plan, Weiner v. Cuyahoga Community College District, 19 Ohio St.2d 35, 249 N.E.2d 907, 908 (1969) , cert, denied, 396 U.S. 1004 (1970) , the Newark Plan, Joyce v. MeCrane, 320 F.Supp. 1284 (D. N.J. 1970), and the Illinois Ogilvie Plan, Southern Illinois Builders Ass’n v. Ogilvie, 327 F. Supp. 1154 (S.D. Ill. 1971), aff’d, 471 F.2d 680 (7th Cir. 1972). Despite ample precedent for using race as a criterion of selection where the goal is equal opportunity, we approach its use in the present case with care. This marks the first time, to our knowledge, that a court has been asked to sanction a plan for hiring a specific percentage of minority workers that requires an employer to take “every possible measure” to reach the goal on each job site, and places upon him the burden of proving compliance, under threat of serious penalties if that burden is not sustained. It is but a short step from these requirements to a demand that an employer give an absolute percentage preference to members of a racial minority, regardless of their qualifications and without consideration for their availability within the general population. The Commonwealth’s affirmative action plan forces us to address a fundamental question: are there constitutional limits to the means by which racial criteria may be used to remedy the present effects of past discrimination and achieve equal opportunity in the future? There are good reasons why the use of racial criteria should be strictly scrutinized and given legal sanction only where a compelling need for remedial action can be shown. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 920, 931-932 (2d Cir. 1969). Government recognition and sanction of racial classifications may be inherently divisive, reinforcing prejudices, confirming perceived differences between the races, and weakening the government’s educative role on behalf of equality and neutrality. It may also have unexpected results, such as the development of indicia for placing individuals into different racial categories. Once racial classifications are imbedded in the law, their purpose may become perverted: a benign preference under certain conditions may shade into a malignant preference at other times. Moreover, a racial preference for members of one minority might result in discrimination against another minority, a higher proportion of whose members had previously enjoyed access to a certain opportunity. In the present instance, there is no question that a compelling need exists to remedy serious racial imbalance in the construction trades, particularly in Rox-bury, Dorchester, and South End, where minorities constitute approximately forty per cent of the population, and yet only about four per cent of the membership of buildings trades unions, and where there has been a long history of racial discimination in those unions. Such an imbalance within the relatively lucrative, highly visible, and expanding construction trades undermines efforts at achieving equal opportunity elsewhere in the economy, and contributes to racial tensions. Even where a long history of discrimination and continuing racial imbalance compels the remedial use of ¡racial criteria, however, the means chosen to implement the compelling interest should be reasonably related to the desired end. See Contractors Ass’n of Eastern Pennsylvania v. Secretary of Labor, supra, 311 F.Supp. at 1011; cf. McLaughlin v. Florida, 379 U.S. 184, 193, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). A program which included unrealistic minority hiring goals might impose an unreasonable burden on the employer and upon qualified workers who were denied jobs because they were not members of the racial minority. Unrealistically high goals are likely, in addition, to forment racial tensions and to prompt employers to circumvent the rules. A program of affirmative action might be considered to impose unrealistic and unreasonable hiring goals if it included a racial preference that could not be fulfilled, or could be fulfilled only by taking on workers who were unqualified for the trainee, apprentice; or journeyman status for which they were hired. Equal opportunity is an elusive concept, but at its core it carries the simple mandate that opportunities should be open to all on the basis of competence alone. Thus, it would be consistent with the goal of equal opportunity to give first priority to members of a minority that had previously been denied equal opportunity, if those members were otherwise as qualified as were qualified members of the majority population. In order that this special treatment be meaningful, of course, there should be equal opportunity to gain the training necessary to qualify. While § IB says nothing about hiring “qualified” minority workers, § V, ¶ 3 of the same contract requires that the contractor hire only “competent” workers. The district court has interpreted § IB in light of § V, U 3, to require that the twenty per cent minority employees of § IB be “qualified” for the status to which they were assigned. The Commonwealth’s Secretary of Transportation and Construction, who is charged with implementing these provisions, has interpreted § IB in the same way. Appellants maintain, however, that the goal of twenty per cent minority workers on each construction site, combined with the contractor’s burden of proving that he has taken “every possible measure to achieve compliance” with the goal, will necessarily move the contractor to hire unqualified minority workers, rather than run the risk of incurring sanctions. While we think that this is an unwarranted concern, given that the Boston State College project will require approximately thirty minority workers, we concede that, in principle, a high percentage goal for minority hiring combined with a high burden of proving compliance might create the likelihood that unqualified workers would be hired. Despite the fact that the Secretary of Transportation and Construction alleges that the twenty per cent goal was based upon an assessment of current availability of minority journeymen, apprentices, and trainees, courts are ill equipped to judge the accuracy of such assessments. It becomes important, therefore, that affirmative action plans, such as the Commonwealth’s § IB, contain fair procedures for contractors to make a showing that insufficient qualified minority workers are available. Thus, any reasonable program designed to remedy racial imbalance must incorporate the necessary elements of due process. So long as contractors receive notice and a meaningful opportunity to challenge any allegations of non-compliance and prove that they have taken whatever efforts are required of them to comply, it is less important that a particular percentage goal might be Slightly optimistic or unrealistic, given current availability of qualified minority workers. Appellants’ contention that § IB violates the Equal Protection clause is therefore intimately tied to their contention that § IB, in violation of thp Due Process clause, permits the imposition of sanctions without proper notice or an opportunity to be heard, an issue to which we now turn. Ill Appellants’ due process claim concerns § IB.2 of the contract provisions, which sanctions listed below .... [T]he Commission (M.C.A.D.) shall make a final report of non-compliance, and recommend to the Bureau [of Construction] the imposition of one or more of the sanctions listed below .... [T]he Bureau shall impose one or more of the following sanctions, as it may deem appropriate . . . . ” The M.C.A.D.’s determination of noncompliance is made ex parte. Contractors are notified of the findings and given an opportunity to take specific steps which would, in the opinion of the M.C.A.D., bring them into compliance, but contractors are not permitted to challenge the findings of non-compliance at this juncture. The Bureau of Construction is required, pursuant to the Commonwealth’s Administrative Procedure Act, M.G.L.A. c. 30A §§ 10, 11, to hold a hearing before any penalties may be imposed on the contractors for non-compliance. What is in dispute is the scope of this hearing. Appellants maintain that § IB.2 allows, at most, a challenge to the particular sanction which the M.C.A.D. has recommended, in favor of what might be contended to be a more appropriate sanction, but not a challenge to the truth of the M.C.A.D.’s basic findings of non-compliance. If appellants’ interpretation of § 1B.2 were correct, their due process claim would have some merit because contractors would be subject to serious penalties, such as debarment from participation in state contracts for three years, without having had an opportunity to contest the findings on which the imposition of the penalty was based. See Boddie v. Connecticut, 401 U.S. 371, 377-379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); cf. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L. Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). We do not think, however, that § IB .2 must necessarily be interpreted to require such a narrowing of the scope of the administrative hearing. The contract states that the Bureau “shall impose” one of the sanctions only “as it may deem appropriate to attain full and effective enforcement.” It would seem perfectly consistent with this mandate for the Bureau to determine for itself that the contractor had in fact taken “every possible measure” to achieve compliance, despite the findings of the M. C.A.D. to the contrary, and that any sanction would be inappropriate. The presumption of constitutionality customarily accorded state statutes, e. g., United States v. Carolene Products, 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), would dictate that we apply this interpretation. The Supreme Judicial Court of Massachusetts has, moreover, construed certain other Commonwealth statutes, facially lacking express provisions for notice and hearing, as impliedly calling for such due process requirements. See Rohrer, Petitioner, 353 Mass. 282, 230 N.E.2d 915 (1967); O’Leary, Petitioner, 325 Mass. 179, 89 N. E.2d 769 (1950). The Commonwealth’s Secretary of Transportation and Construction has given the foregoing interpretation to § IB .2, and has stipulated that no sanctions may be imposed against a contractor until he has had a full hearing before officials of the Bureau of Construction in which he may challenge any findings of non-compliance by the M.C. A.D. Since the Secretary is entrusted with interpretation and implementation of the contract privisions, his view is at least entitled to “respectful consideration”, Fox v. Standard Oil Co., 294 U.S. 87, 96, 55 S.Ct. 333, 79 L.Ed. 780 (1935). We see no reason not to accept his interpretation in this case, Law Students Research Council v. Wadmond, 401 U.S. 154, 162, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), and indeed condition our holding on the consistent application of this interpretation. We conclude, therefore, that § IB so construed does not violate the Due Process clause of the Fourteenth Amendment. Since contractors are provided with notice and a full opportunity to contest allegations of non-compliance, they may thereby show that insufficient qualified minority workers were available. Therefore, in light of our preceding analysis, we find that § IB does not violate the Equal Protection clause of the Fourteenth Amendment. IV Appellants’ final contention, which comes within the compass of our pendent jurisdiction, is that the Commonwealth’s § IB program involves the M.C.A.D. in activities that are prohibited by the anti-preference clause of M.G. L. A. c. 151B, § 4. This clause provides, in relevant part that “ . . . nothing contained in this chapter or in any rule or regulation issued by the Commission [M.C.A.D.] shall be interpreted as requiring any employer, employment agency or labor organization to grant preferential treatment to any individual or to any group because of the race . of such individual or group . . . . ” The anti-preference clause has not been interpreted by Massachusetts courts. The 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_adminaction	038	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to 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. RADIO CORPORATION OF AMERICA et al. v. UNITED STATES et al. No. 565. Argued March 26-27, 1951. Decided May 28, 1951. John T. Cahill argued the cause for the Radio Corporation of America et al., appellants. With him on the brief were Weymouth Kirkland, Howard Ellis, Joseph V. Heffernan, John W. Nields, Ray B. Houston and Robert G. Zeller. Simon H. Rifkind argued the cause and filed a brief for the Emerson Radio & Phonograph Corporation, appellant. Also of counsel was Thomas D. Nash. Alfred Kamin argued the cause and filed a brief for Local 1031, International Brotherhood of Electrical Workers, A. F. of L., appellant. A. L. Schapiro and B. C. Schijf submitted on brief for the Pilot Radio Corporation, appellant. John J. Kelly, Jr. for the Radio Craftsmen, Inc.; Frank S. Righeimer, Jr. for Wells-Gardner & Co.; and Gerald Ratner for the Television Installation Service Association, appellants. Solicitor General Perlman argued the cause for the United States and the Federal Communications Commission, appellees. Samuel I. Rosenman argued the cause for the Columbia Broadcasting System, Inc., appellee. With them on a joint brief were Stanley M. Silverberg, Benedict P. Cottone, Max Goldman and Richard A. Solomon for the United States and the Federal Communications Commission, and Ralph F. Colin and Richard S. Salant for the Columbia Broadcasting System, Inc. Mr. Justice Black delivered the opinion of the Court. Radio Corporation of America (RCA) and two of its subsidiaries brought this action in a three-judge District Court to enjoin and set aside an order of the Federal Communications Commission prescribing standards for transmission of color television. The effect of the challenged order was to reject a color system proposed by RCA and to accept one proposed by the Columbia Broadcasting System (CBS). The basis of RCA’s complaint was that the order had been entered arbitrarily and capriciously, without the support of substantial evidence, against the public interest, and contrary to law. After hearing and oral argument, the District Court entered summary judgment sustaining the Commission, one judge dissenting. RCA and the other plaintiffs took this direct appeal under 28 U. S. C. § 1253 and § 2101 (b). At the outset we are faced with RCA’s contention that the District Court failed to review the record as a whole in determining whether the Commission’s order was supported by substantial evidence; it is urged that for this reason we should summarily reverse and remand the case for further consideration by that court. If RCA’s premise were correct, the course which it suggests might be wholly appropriate. For as pointed out recently, in considering the question of sufficiency of evidence to support an administrative order this Court must and does rely largely on a first reviewing court’s conclusion. Universal Camera Corp. v. Labor Board, 340 U. S. 474. The present case, however, need not be returned for further scrutiny below because we are convinced that the review already afforded did not fall short of that which is required. The District Court heard oral argument for three days and deliberated for about five weeks before handing down its decision. Both the majority and dissenting opinions show a familiarity with RCA’s basic contention (and the minor ones as well) that could have come only from careful study of the record as a whole. To be sure, there was a casual statement in the majority opinion susceptible of the interpretation that the court in reaching the decision made an examination of the record less complete than it should have been. Fairly construed, however, the remark, while perhaps unfortunate, is entirely consistent with that conscientious review which we are satisfied was given this record by the District Court. We therefore pass to the question of validity of the Commission’s order. All parties agree, as they must, that given a justifiable fact situation, the Commission has power under 47 U. S. C. § 303 (c), (e), (f), (g) to do precisely what it did in this case, namely, to promulgate standards for transmission of color television that result in rejecting all but one of the several proposed systems. Moreover, it cannot be contended seriously that the Commission in taking such a course was without evidential support for its refusal to adopt the RCA system at this time. The real argument, advanced at great length and in many different forms, boils down to this: Viewing the record as a whole, the Commission as a matter of law erred in concluding that the CBS color system had reached a state of development which justified its acceptance to the exclusion of RCA’s and that of others. Consequently, before the Commission, the District Court and here, RCA’s main attempt has been to persuade that no system has yet been proven worthy of acceptance for public use, that commercial color broadcasting must be postponed awaiting inventions that will achieve more nearly perfect results. We sustain the Commission’s power to reject this position and hold valid the challenged order, buttressed as it is by the District Court’s approval. To explain our conclusion it is unnecessary to repeat the detailed statement of facts made in the majority and minority opinions of the Commission and District Court. Nor, for present purposes, is it necessary to attempt a translation of the technical terms invented to carry meanings in the rapidly growing television industry. It will suffice to give the following brief summary of the background of the Commission’s findings and what was found: Standards for black and white television transmission were first promulgated by the Commission in 1941. RCA’s complaint alleges, and all apparently agree, that “The quality of the present [black and white] service, the improvements and reductions in price to the public that have been made, the incredible expansion of the industry as a whole, are all due to the fact that manufacturers could build upon a single set of long-range high-quality standards.” From 1941 until now the Commission has been engaged in consideration of plans and proposals looking toward promulgation of a single set of color standards. CBS apparently made quicker progress in developing an acceptable system than did others. It was soon attacked, however, on the ground that it was utilizing old knowledge highly useful in the realm of the physical sciences and mechanical practices but incongruous in the new fields of electronics occupied by television. This is still the core of the objection to the CBS system, together with the objection that existing receiving sets are not constructed in such a way that they can, without considerable adjustments, receive CBS color broadcasts either in color or black and white. The fact that adjustments are required before a CBS color broadcast can be received in black and white on existing sets makes this system “incompatible” with the millions of television receivers now in the hands of the public. There is no doubt that a “compatible” color television system would be desirable. Recognition of this fact seems to be the controlling reason why the Commission did not long ago approve the “incompatible” CBS system. In the past, it has postponed adoption of standards with the hope that a satisfactory “compatible” color television system would be developed. But this time, in light of previous experience, the Commission thought that further delay in making color available was too high a price to pay for possible “compatibility” in the future, despite RCA’s claim that it was on the verge of discovering an acceptable “compatible” system. The Commission’s special familiarity with the problems involved in adopting standards for color television is amply attested by the record. It has determined after hearing evidence on all sides that the CBS system will provide the public with color of good quality and that television viewers should be given an opportunity to receive it if they so desire. This determination certainly cannot be held capricious. It is true that the choice between adopting standards now or at a later date was not free from difficulties. Moreover, the wisdom of the decision made can be contested as is shown in the dissenting opinions of two Commissioners. But courts should not overrule an administrative decision merely because they disagree with its wisdom. We cannot say the District Court misapprehended or misapplied the proper judicial standard in holding that the Commission’s order was not arbitrary or against the public interest as a matter of law. Whether the Commission should have reopened its proceedings to permit RCA to offer proof of new discoveries for its system was a question within the discretion of the Commission which we find was not abused. We have considered other minor contentions made by RCA but are satisfied with the way the District Court disposed of them. The District Court’s judgment sustaining the order of the Commission is Affirmed. Mr. Justice Frankfurter, dubitante. Since I am not alone in entertaining doubts about this case they had better be stated. The ultimate issue is the function of this Court in reviewing an order of the Federal Communications Commission, adopted October 10, 1950, whereby it promulgated standards for the transmission of color television. The significance of these standards lies in the sanction of a system of “incompatible” color television, that is, a system requiring a change in existing receivers for the reception of black and white as well as colored pictures. The system sanctioned by the Commission’s order will require the addition of an appropriate gadget to the millions of outstanding receiving sets at a variously estimated, but in any event substantial, cost. From the point of view of the public interest, it is highly desirable to have a color television system that is compatible. The Commission’s order sanctioning an incompatible system is based not on the scientific unattainability of a compatible system, nor even on a forecast that its feasibility is remote. It rests on the determination that inasmuch as compatibility has not yet been achieved, while a workable incompatible system has proven itself, such a system, however intrinsically unsatisfactory, ought no longer to be withheld from the public. After hearings on the Commission’s proposals were closed, the Radio Corporation of America, persistent promoter of a compatible system, suggested to the Commission further consideration of the progress made after the Commission had taken the matter under advisement in May, 1950. To be sure, this proffer of relevant information concerning progress toward the desired goal was made by an interested party. But within the Commission itself the need for further light was urged in view of the rapid development that had been made since the Commission’s hearings got under way. The heart of the controversy was thus put by Commissioner Hennock: “It is of vital importance to the future of television that we make every effort to gain the time necessary for further experimentation leading to the perfection of a compatible color television system.” The Commission did not rule out reasonable hope for the early attainment of compatibility. Indeed, it gave ground for believing that success of experimentation to that end is imminent. But it shut off further inquiry into developments it recognized had grown apace because in its “sound discretion” it concluded that “a delay in reaching a determination with respect to the adoption of standards for color television service . . . would not be conducive to the orderly and expeditious dispatch of the Commission’s business and would not best serve the ends of justice . . . .” The real question, as I have indicated, is whether this determination of the Commission, considering its nature and its consequences, is beyond judicial scrutiny. I am no friend of judicial intrusion into the administrative process. I do not believe in a construction of the Communications Act that would cramp the broad powers of the Communications Commission. See National Broadcasting Co. v. United States, 319 U. S. 190. I have no doubt that if Congress chose to withdraw all court review from the Commission’s orders it would be constitutionally free to do so. See Stark v. Wickard, 321 U. S. 288, 312. And I deem it essential to the vitality of the administrative process that, even when subject to judicial review, the Commission be allowed to exercise its powers unhampered by the restrictive procedures appropriate for litigation in the courts. See Federal Communications Comm’n v. National Broadcasting Co., 319 U. S. 239, 248. But so long as the Congress has deemed it right to subject the orders of the Commission to review by this Court, the duty of analyzing the essential issues of an order cannot be escaped by too easy reliance on the conclusions of a district court or on the indisputable formula that an exercise of discretion by the Commission is not to be displaced by a contrary exercise of judicial discretion. What may be an obvious matter of judgment for the Commission in one situation may so profoundly affect the public interest in another as not to be a mere exercise of conventional discretion. Determinations by the Commission are not abstract determinations. We are not here called upon to pass on the abstract question whether the Commission may refuse to reconsider a problem before it although enlightening new evidence is promised. We are faced with a particular order of great significance. It is not the effect of this order upon commercial rivalries that gives it moment. The Communications Act was not designed as a code for the adjustment of conflicting private interests. It is the fact that the order originates color television, with far-reaching implications to the public interest. The assumption underlying our system of regulation is that the national interest will be furthered by the fullest possible use of competition. At some point, of course, the Commission must fix standards limiting competition. But once those standards are fixed, the incentive for improvement is relaxed. It is obvious that the money spent by the public to adapt and convert the millions of sets now in use may well make the Commission reluctant to sanction new and better standards for color pictures if those standards would outmode receiving sets adapted to the system already in use. And even if the Commission is willing to adopt a second, inconsistent set of color television standards sometime in the future, the result will be economic waste on a vast scale. And all to what end? And for what overriding gain? Of course the Commission does not have to wait for the millennium. Of course it does not have to withhold color pictures from the American public indefinitely because improvements in color transmission will steadily be perfected. That is not what is involved here. What the Commission here decided is that it could not wait, or the American public could not wait, a little while longer, with every prospect of a development which, when it does come, concededly will promote the public interest more than the incompatible system now authorized. Surely what constitutes the public interest on an issue like this is not one of those expert matters as to which courts should properly bow to the Commission’s expertness. In any event, nothing was submitted to us on argument, nor do I find anything in the Commission’s brief of 150 pages, which gives any hint as to the public interest that brooks no delay in getting color television even though the method by which it will get it is intrinsically undesirable, inevitably limits the possibilities of an improved system or, in any event, leads to potential great economic waste. The only basis for this haste is that the desired better method has not yet proved itself and in view of past failures there is no great assurance of early success. And so, since a system of color television, though with obvious disadvantages, is available, the requisite public interest which must control the Commission’s authorization is established. I do not agree. One of the more important sources of the retardation or regression of civilization is man’s tendency to use new inventions indiscriminately or too hurriedly without adequate reflection of long-range consequences. No doubt the radio enlarges man’s horizon. But by making him a captive listener it may make for spiritual impoverishment. Indiscriminate use of the radio denies him the opportunities for reflection and for satisfying those needs of withdrawal of which silent prayer is only one manifestation. It is an uncritical assumption that every form of reporting or communication is equally adaptable to every situation. Thus, there may be a mode of what is called reporting which may defeat the pursuit of justice. Doubtless, television may find a place among the devices of education; but much long-headed thought and patient experimentation are demanded lest uncritical use may lead to hasty jettisoning of hard-won gains of civilization. The rational process of trial and error implies a wary use of novelty and a critical adoption of change. When a college head can seriously suggest, not by way of irony, that soon there will be no need of people being able to read — that illiteracy will be the saving of wasteful labor — one gets an idea of the possibilities of the new barbarism parading as scientific progress. Man forgets at terrible cost that the environment in which an event is placed may powerfully determine its effect. Disclosure conveyed by the limitations and power of the camera does not convey the same things to the mind as disclosure made by the limitations and power of pen or voice. The range of presentation, the opportunities for distortion, the impact on reason, the effect on the looker-on as against the reader-hearer, vary; and the differences may be vital. Judgment may be confused instead of enlightened. Feeling may be agitated, not guided; reason deflected, not enlisted. Reason — the deliberative process — has its own requirements, met by one method and frustrated by another. What evil would be encouraged, what good retarded by delay? By haste, would morality be enhanced, insight deepened, and judgment enlightened? Is it even economically advantageous to give governmental sanction to color television at the first practicable moment, or will it not in fact serve as an added drain on raw materials for which the national security has more exigent needs? Finally, we are told that the Commission’s determination as to the likely prospect of early attainment of compatibility is a matter within its competence and not subject to court review. But prophecy of technological feasibility is hardly in the domain of expertness so long as scientific and technological barriers do not make the prospect fanciful. In any event, this Court is not without experience in understanding the nature of such complicated issues. We have had occasion before to consider complex scientific matters. Telephone Cases, 126 U. S. 1; McCormick v. Graham’s Adm’r, 129 U. S. 1 (harvester) ; Corona Co. v. Dovan Corp., 276 U. S. 358 (improvement in vulcanization of rubber); DeForest Radio Co. v. General Electric Co., 283 U. S. 664 (high-vacuum discharge tube); Radio Corporation v. Radio Engineering Laboratories, 293 U. S. 1 (audion oscillator); Marconi Wireless Co. v. United States, 320 U. S. 1 (wireless telegraphy improvement) ; and Universal Oil Products Co. v. Globe Oil & Rfg. Co., 322 U. S. 471 (oil cracking process). Experience has made it axiomatic to eschew dogmatism in predicting the impossibility of important developments in the realms of science and technology. Especially when the incentive is great, invention can rapidly upset prevailing opinions of feasibility. One may even generalize that once the deadlock in a particular field of inquiry is broken progress becomes rapid. Thus, the plastics industry developed apace after a bottleneck had been broken in the chemistry of rubbers. Once the efficacy of sulfanila-mide was clearly established, competent investigators were at work experimenting with thousands of compounds, and new and better antibiotics became available in a continuous stream. A good example of the rapid change of opinion that often occurs in judgment of feasibility is furnished by the cyclotron. Only a few years ago distinguished nuclear physicists proclaimed the limits on the energy to which particles could be accelerated by the use of a cyclotron. It was suggested that 12,000,000-volt protons were the maximum obtainable. Within a year the limitations previously accepted were challenged. At the present time there are, I believe, in operation in the United States at least four cyclotrons which accelerate protons to energies of about 400,000,000 volts. One need not have the insight of a great scientific investigator, nor the rashness of the untutored, to be confident that the prognostications now made in regard to the feasibility of a “compatible” color television system will be falsified in the very near future. The subsidiaries are the National Broadcasting Co. and RCA Victor Distributing Corp. Later, other parties were permitted over the Commission’s objection to intervene in support of RCA’s position. The Columbia Broadcasting System (CBS) intervened as a party defendant. The order also rejected a system proposed by Color Television, Inc., which is not a party to this litigation. 95 F.Supp. 660 (N.D.Ill.). “After listening to many hours of oral argument by able counsel representing the respective parties, we formed some rather definite impressions relative to the merits of the order, as well as the proceedings before the Commission upon which it rests. And our reading and study of the numerous and voluminous briefs with which we have been favored have not altered or removed those impressions. Also, in studying the case, we have been unable to free our minds of the question as to why we should devote the time and energy which the importance of the case merits, realizing as we must that the controversy can only be finally terminated by a decision of the Supreme Court. This is so because any decision we make is appealable to that court as a matter of right and we were informed during oral argument, in no uncertain terms, that which otherwise might be expected, that is, that the aggrieved party or parties will immediately appeal. In other words, this is little more than a practice session where the parties prepare and test their ammunition for the big battle ahead.” (Emphasis added.) 95 F. Supp. at 664. 47 U. S. C. §303: “. . . [T]he Commission ... as public convenience, interest, or necessity requires, shall— “(c) Assign bands of frequencies to the various classes of stations, and assign frequencies for each individual station and determine the power which each station shall use and the time during which it may operate; “(e) Regulate the kind of apparatus to be used with respect to its external effects and the purity and sharpness of the emissions from each station and from the apparatus therein; “(f) Make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and to carry out the provisions of this chapter .... “(g) Study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest.” The Commission unanimously believed that CBS had the best system presently available, although two Commissioners dissented on other grounds. The relative merits and demerits of the RCA and CBS systems were summarized as follows: “[T]he RCA system [is] deficient in the following respects: “(a) The color fidelity of the RCA picture is not satisfactory. “ (b) The texture of the color picture is not satisfactory. “(c) The receiving equipment utilized by the RCA system is exceedingly complex. “(d) The equipment utilized at the station is exceedingly complex. “(e) The RCA color system is much more susceptible to certain kinds of interference than the present monochrome system or the CBS system. “(f) There is not adequate assurance in the record that RCA color pictures can be transmitted over the 2.7 megacycle coaxial cable facilities. “(g) The RCA system has not met the requirements of successful field testing. “[T]he CBS system produces a color picture that is most satisfactory from the point of view of texture, color fidelity and contrast. . . . [Receivers and station equipment are simple to operate and . . . receivers when produced on a mass marketing basis should be within the economic reach of the great mass of purchasing public. .. . [E]ven with present equipment the CBS system can produce color pictures of sufficient brightness without objectionable flicker to be adequate for home use and . . . the evidence concerning long persistence phosphors shows that there is a specific method available for still further increasing brightness with no objectionable flicker. Finally, . . . while the CBS system has less geometric resolution than the present monochrome system the addition of color to the picture more than outweighs the loss in geometric resolution so far as apparent definition is concerned.” Second Report of the Commission, October 10,1950, 1 Pike & Fischer Radio Reg. (P. & F.), ¶ 91:26, pp. 91:441-442. The facts found by the Commission appear in two reports on Color Television Issues. First Report of the Commission, September 1, 1950, 1 P. & F. ¶ 91:24, p. 91:261-; Second Report of the Commission, October 10, 1950, 1 P. & F. ¶ 91:26, p. 91:441. The District Court described the proceedings before the Commission as follows: “The hearing, participated in by all members of the Commission, commenced September 26, 1949 and ended May 26, 1950. In all, fifty-three different witnesses were heard and 265 exhibits received. The transcript of the hearing covers 9717 pages. During the period from November 22, 1949 to February 6, 1950, extensive field tests were made of the three systems [RCA, CBS, Color Television, Inc.] proposed. Progress reports concerning these tests were filed with the Commission by the three proponents during December 1949 and January 1950. Comparative demonstrations of the three proposed systems were made on different dates until May 17, 1950.” 95 F. Supp. at 665. Emphasis added. See the particularly interesting historical summary of these efforts in Commissioner Jones’ dissent to the First Report of the Commission, September 1, 1950, 1 P. & F. ¶ 91:24, pp. 91:346-447. His view was that color television standards should have been promulgated long before they were. See note 6, supra. See note 6, supra. National Broadcasting Co. v. United States, 319 U. S. 190, 224. Universal Camera Corp. v. Labor Board, 340 U. S. 474, 490-491. See United States v. Pierce Auto Lines, 327 U. S. 515, 534-535. With respect to reopening the record, the Commission said in part: "... [A] new television system is not entitled to a hearing or a reopening of a hearing simply on the basis of a paper presentation. In the radio field many theoretical systems exist and can be described on paper but it is a long step from this process to successful operation. There can be no assurance that a system is going to work until the apparatus has been built and has been tested. None of the new systems or improvements in systems meet these tests so as to warrant reopening of the hearing. . . . “The Commission does not imply that there is no further room for experimentation. . . . Many of the results of such experimentation can undoubtedly be added without affecting existing receivers. As to others some obsolescence of existing receivers may be involved if the changes are adopted. In the interest of stability this latter type of change will not be adopted unless the improvement is substantial in nature, when compared to the amount of dislocation involved. But when such an improvement does come along, the Commission cannot refuse to consider it merely because the owners of existing receivers might be compelled to spend additional money to continue receiving programs. “. . . [A]ny improvement that results from the experimentation might face the problem of being incompatible with the present monochrome system or the color system we are adopting today. In that event, the new color system or other improvement will have to sustain the burden of showing that the improvement which results is substantial enough to be worth while when compared to the amount of dislocation involved to receivers then in the hands of the public.” Second Report of the Commission, October 10, 1950, 1 P. & F. ¶ 91:26, pp. 91:445-446. “Broadcasting as an influence on men’s minds has great possibilities, either of good or evil. The good is that if broadcasting can find a serious audience it is an unrivalled means of bringing vital issues to wider understanding. The evil is that broadcasting is capable of increasing perhaps the most serious of all dangers which threaten democracy and free institutions today — the danger of passivity — of acceptance by masses of orders given to them and of things said to them. Broadcasting has in itself a tendency to encourage passivity, for listening as such, if one does no more, is a passive occupation. Television may be found to have this danger of passivity in even stronger form.” Report of the Broadcasting Committee, 1949 (Cmd. 8116,1951) 75. Question: What is the agency involved in the administrative action? 001. Army and Air Force Exchange Service 002. Atomic Energy Commission 003. Secretary or administrative unit or personnel of the U.S. Air Force 004. Department or Secretary of Agriculture 005. Alien Property Custodian 006. Secretary or administrative unit or personnel of the U.S. Army 007. Board of Immigration Appeals 008. Bureau of Indian Affairs 009. Bureau of Prisons 010. Bonneville Power Administration 011. Benefits Review Board 012. Civil Aeronautics Board 013. Bureau of the Census 014. Central Intelligence Agency 015. Commodity Futures Trading Commission 016. Department or Secretary of Commerce 017. Comptroller of Currency 018. Consumer Product Safety Commission 019. Civil Rights Commission 020. Civil Service Commission, U.S. 021. Customs Service or Commissioner or Collector of Customs 022. Defense Base Closure and REalignment Commission 023. Drug Enforcement Agency 024. Department or Secretary of Defense (and Department or Secretary of War) 025. Department or Secretary of Energy 026. Department or Secretary of the Interior 027. Department of Justice or Attorney General 028. Department or Secretary of State 029. Department or Secretary of Transportation 030. Department or Secretary of Education 031. U.S. Employees' Compensation Commission, or Commissioner 032. Equal Employment Opportunity Commission 033. Environmental Protection Agency or Administrator 034. Federal Aviation Agency or Administration 035. Federal Bureau of Investigation or Director 036. Federal Bureau of Prisons 037. Farm Credit Administration 038. Federal Communications Commission (including a predecessor, Federal Radio Commission) 039. Federal Credit Union Administration 040. Food and Drug Administration 041. Federal Deposit Insurance Corporation 042. Federal Energy Administration 043. Federal Election Commission 044. Federal Energy Regulatory Commission 045. Federal Housing Administration 046. Federal Home Loan Bank Board 047. Federal Labor Relations Authority 048. Federal Maritime Board 049. Federal Maritime Commission 050. Farmers Home Administration 051. Federal Parole Board 052. Federal Power Commission 053. Federal Railroad Administration 054. Federal Reserve Board of Governors 055. Federal Reserve System 056. Federal Savings and Loan Insurance Corporation 057. Federal Trade Commission 058. Federal Works Administration, or Administrator 059. General Accounting Office 060. Comptroller General 061. General Services Administration 062. Department or Secretary of Health, Education and Welfare 063. Department or Secretary of Health and Human Services 064. Department or Secretary of Housing and Urban Development 065. Administrative agency established under an interstate compact (except for the MTC) 066. Interstate Commerce Commission 067. Indian Claims Commission 068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 069. Internal Revenue Service, Collector, Commissioner, or District Director of 070. Information Security Oversight Office 071. Department or Secretary of Labor 072. Loyalty Review Board 073. Legal Services Corporation 074. Merit Systems Protection Board 075. Multistate Tax Commission 076. National Aeronautics and Space Administration 077. Secretary or administrative unit or personnel of the U.S. Navy 078. National Credit Union Administration 079. National Endowment for the Arts 080. National Enforcement Commission 081. National Highway Traffic Safety Administration 082. National Labor Relations Board, or regional office or officer 083. National Mediation Board 084. National Railroad Adjustment Board 085. Nuclear Regulatory Commission 086. National Security Agency 087. Office of Economic Opportunity 088. Office of Management and Budget 089. Office of Price Administration, or Price Administrator 090. Office of Personnel Management 091. Occupational Safety and Health Administration 092. Occupational Safety and Health Review Commission 093. Office of Workers' Compensation Programs 094. Patent Office, or Commissioner of, or Board of Appeals of 095. Pay Board (established under the Economic Stabilization Act of 1970) 096. Pension Benefit Guaranty Corporation 097. U.S. Public Health Service 098. Postal Rate Commission 099. Provider Reimbursement Review Board 100. Renegotiation Board 101. Railroad Adjustment Board 102. Railroad Retirement Board 103. Subversive Activities Control Board 104. Small Business Administration 105. Securities and Exchange Commission 106. Social Security Administration or Commissioner 107. Selective Service System 108. Department or Secretary of the Treasury 109. Tennessee Valley Authority 110. United States Forest Service 111. United States Parole Commission 112. Postal Service and Post Office, or Postmaster General, or Postmaster 113. United States Sentencing Commission 114. Veterans' Administration or Board of Veterans' Appeals 115. War Production Board 116. Wage Stabilization Board 117. State Agency 118. Unidentifiable 119. Office of Thrift Supervision 120. Department of Homeland Security 121. Board of General Appraisers 122. Board of Tax Appeals 123. General Land Office or Commissioners 124. NO Admin Action 125. Processing Tax Board of Review Answer:
songer_casetyp1_3-3-1	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "First Amendment - religion, press, commercial". BRUNO & STILLMAN, INC., Plaintiff, v. GLOBE NEWSPAPER CO., Defendant. Nos. 80-1172, 80-1173. United States Court of Appeals, First Circuit Argued June 2, 1980. Decided Oct. 17, 1980. James F. McHugh, Boston, Mass., with whom Bingham, Dana & Gould, Boston, Mass., was on brief, for The Globe Newspaper Co. Robert S. Potters, Boston, Mass., with whom Grover Henry Nix, III, and Nix & Wendell, Boston, Mass., was on brief, for Bruno & Stillman, Inc. Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, MAZZONE, District Judge. From the district of Massachusetts, sitting by designation. COFFIN, Chief Judge. These are cross appeals arising out of the actions of the district court in dismissing a negligence count in plaintiff’s libel complaint against defendant newspaper and in granting plaintiff’s motion to compel the disclosure of three of defendant newspaper’s confidential sources and information conveyed by them to defendant. Each appeal presents an important question: first, whether plaintiff corporation, as described in the complaint, was correctly held by the district court to be a “public figure”, and must thus meet the standard of “actual malice”, i. e., proof that defendant’s statements were made “with knowledge that [they were] false or with reckless disregard of whether [they were] false or not”, under New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964); and second, whether, on the record so far established in this case, defendant has a privilege to refuse to reveal confidential sources relating to the subject matter of the statements sued upon. Plaintiff, Bruno & Stillman, Inc. (hereinafter “the company”), is a Delaware corporation engaged in the manufacture and sale of commercial fishing boats with a principal place of business in New Hampshire. The defendant is the Globe Newspaper Company, publisher of the Boston Globe (hereinafter “the Globe ”), with a principal place of business in Massachusetts. According to the facts alleged in the complaint, the company began building 35 to 55 foot fiberglass workboats in 1971, selling eight in that year. By dint of “enormous work and effort ... in manufacturing, promoting and selling boats”, sales increased steadily, so that in 1977 the company sold nearly forty 35-foot boats, forty 42-footers, and ten 55-footers, and some newly introduced 35-foot pleasure boats. Between 1971 and the end of 1977 the company had sold over 400 boats “throughout the world” and had become the largest builder of fishing boats in New England. It enjoyed an “excellent reputation as a quality boat builder in the tough and competitive commercial fishing industry”. On Sunday, December 25, 1977, the Globe published a full page story on the company. On the following day, the Globe published a second such story, occupying parts of three pages, over the byline of William P. Cough-lin. Both stories listed and described alleged reports of some thirteen defects observed in one or more of five named boats built by the company. Critical comments of owners, surveyors, Coast Guard marine inspection officers, some company employees, and a repairman were narrated. Roughly a fifth of a page was devoted, under the caption of “Builder’s Answers”, to company comments on nine alleged defects. Three specific hull problems found in company-built boats-splitting of the bow, cracking of the keel, and water seepage into the balsa wood core between fiberglass layers-occupied the second article. A month later, on January 23 and 25, 1978, two more stories reported alleged defects that may have played a part in the sinking of two company-built boats on January 17 and 20. On January 26, the Globe carried an article in which the captain of one of the sunken vessels denied the company’s claim that clogged scuppers were the cause, and gave the crew’s opinion that the boat’s skeg had separated from the bottom. After the company complained to the Globe of distortions and inaccuracies, a final article was published in April of 1978, over the byline of the Globe’s “Ombudsman”, reviewing Coughlin’s reporting of problems with 37 company-built boats, finding it “legitimate news” and fairly written, but noting matters that had come to light that were more favorable to the company and concluding that definitive answers were yet to be awaited. The company, unsatisfied, brought suit on August 18, 1978. Count I sounds in negligence; Counts II and III allege intentional and malicious libel. The prayer for relief seeks ten million dollars, costs, expenses, and attorney’s fees. Discovery on the part of plaintiff ensued, resulting in the production by the Globe of some 1500 pages in 66 file folders of notes of the reporter Cough-lin, but not including notes containing the names of and some information from three sources who were said to have given information in the expectation that their identity would be kept in confidence. A lengthy deposition of Coughlin revealed no information as to the role these sources had. played in the series of Globe stories. In answering interrogatories the Globe stated that it would not rely at trial on any documents as to which a claim of confidential source is made. It acknowledged that there are reports, tests, or evaluations among such documents. The district court, in responding to the Globe’s motion to dismiss, took note of the efforts of the Supreme Court “to accommodate the First Amendment’s guarantee of a free press with the competing interest which States have in protecting the reputation of natural persons”, from New York Times Co. v. Sullivan, supra, to Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Its essential reasoning and ruling were as follows: “The crucial inquiry here is whether corporations, for purposes of the First Amendment, are more akin to public figures or private individuals. In the two key respects outlined in Gertz, corporations appear more like public figures. First, corporations often enjoy greater access to the channels of communication than do private individuals. Second, and more importantly, by engaging in the business of selling products, corporations voluntarily place before the public an issue of some importance regarding the quality and integrity of their products. In addition, corporations generally promote the sale of their products to the public by engaging in some form of advertising. Thus, at least to the extent that allegedly defamatory publications relate to the quality of the products which a corporation markets, I rule that corporations should be treated as public figures. Trans World Accounts, Inc. v. Associated Press, 425 F.Supp. 814 (N.D. Cal.1977); Reliance Insurance Co. v. Bar ron’s, 442 F.Supp. 1341, 1348-49 (S.D.N. Y.1977).” Since all of the Globe’s articles related to the quality of the company’s products, plaintiff fitted within this context. The court dismissed the Count based on mere negligence and entered final judgment under Fed.R.Civ.P. 54(b). Next, in dealing with plaintiff’s request to compel discovery, the court drew on Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979), which had declined, in a defamation suit by a public figure, to add to plaintiff’s burdens by precluding inquiry into the editorial process. The district court also relied on Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958), and adopted its prudential guidelines predicating disclosure of a confidential source on criticality of the information sought to plaintiff’s claim, non-availability of the information from other sources, and non-frivolousness of plaintiff’s cause of action. Finding these requirements satisfied, the court compelled disclosure of the confidential sources and the information derived therefrom. It certified an interlocutory appeal under 28 U.S.C. § 1292(b). I. PUBLIC FIGURE Before New York Times v. Sullivan, supra, defamation law strongly favored the state’s interest in protecting reputation, approached strict liability, and gave little room to First Amendment considerations. Once a plaintiff put into evidence a reputa-. tion-harming statement and proof that defendant caused it to be disseminated, he enjoyed an irrebuttable presumption of injury and a rebuttable presumption of falsity. Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va. L.Rev. 1349, 1353 (1975) (hereinafter “Eaton”). In 1964 the Court in New York Times significantly changed the balance. It recognized, in Madison’s phrase, that “[T]he censorial power is in the people over the Government”, 376 U.S. at 275, 282, 84 S.Ct. at 721, 727; that keeping this power free of fetters called for “uninhibited, robust, and wide open” debate on public issues, id. at 270, 84 S.Ct. at 720; and that, since “erroneous statement is inevitable in free debate”, even such a statement must be protected to a greater extent than was afforded by the mere defense of truth. Id. at 271-72, 84 S.Ct. at 721. Consequently, the Court held, public officials, in order to prevail in defamation suits, must establish “actual malice”. Furthermore, not only must such knowledge of falsity or reckless disregard of truth be established but it must be established by clear and convincing proof.I. It is relevant to our deliberations to recognize the almost decisive amplitude of “breathing space” surrounding defamatory falsehood, once a plaintiff is obliged to meet the New York Times standard. One commentator concludes that “[T]he constitutional privilege [recognized in New York Times] in practical effect became a near-immunity from defamation judgments.” Eaton, supra, at 1373. The Court in Gertz, supra, uses only slightly less emphatic language: “This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test.” 418 U.S. at 342, 94 S.Ct. at 3008. In cases subsequent to New York Times, the Court has varied its formulations of underlying policy and has first expanded, then shrunk the quantum of deference to First Amendment considerations. In Rosenblatt v. Baer, 383 U.S. 75, 85-86, 86 S.Ct. 669, 675-676, 15 L.Ed.2d 597 (1966), the term “public official” was declared to include at least those in the hierarchy of government employees “who have, or appear to have, substantial responsibility for or control over the conduct of governmental affairs.” In the following year, Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the Court extended “public official” requirements of proof to nonofficial “public figures”, in this case a famous football coach. The widening of the area subject to the New York Times standard reached its outermost limits in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). In this case the Court, sharply divided, subjected to the “actual malice” standard a defamation plaintiff who was neither a public official nor a public figure but a magazine distributor who had been arrested for distributing obscene literature in the course of a law enforcement drive, had been labelled a “smut merchant”, and subsequently was acquitted. The linchpin of analysis had become, in the opinion of the plurality, simply “whether the utterance concerns an issue of public or general concern.” Id. at 44, 91 S.Ct. at 1820. This pronouncement lasted some three years, until in 1974 in Gertz, supra, the Court decided that “The extension of the New York Times test proposed by the Ro-senbloom plurality would abridge this legitimate state interest [in protecting the reputation of a private individual] to a degree that we find unacceptable.” 418 U.S. at 346, 94 S.Ct. at 3010. The Court noted the additional difficulty of plunging judges into the business of deciding which issues were or were not of “general or public interest”. Id. While thus easing the task of the defamed private plaintiff, the Court established a higher threshold of liability for statements by publishers and broadcasters by precluding states from imposing liability without fault. It also barred punitive damages absent a showing of knowledge of falsity or reckless disregard for the truth. Having reached what it deemed the correct accommodation of the competing debate and reputation values at stake, the Court proceeded to endeavor to lay down a broad rule, which would preclude an ad hoc balancing of competing interests in each case. It began by noting, without significant emphasis, that one factor usually distinguishing public officials and public figures was the remedy of self-help, “significantly greater access to the channels of effective communication . . . and ... a more realistic opportunity to counteract false statements than private individuals normally enjoy.” Id at 344, 94 S.Ct. at 3009. In the same breath the Court acknowledged that “an opportunity for rebuttal seldom suffices to undo harm of defamatory falsehood.” Id n. 9. The Court then delineated three major classes of public figures. The first included persons who have “assumed roles of especial prominence in the affairs of society”, id. at 345, 94 S.Ct. at 3009, or who have achieved “pervasive fame or notoriety”, id. at 351, 94 S.Ct. at 3012, as well as those who “occupy .. . positions of .. . persuasive power and influence”, id. at 345, 94 S.Ct. at 3009, or are “pervasively] involve[d] in the affairs of society.” Id at 352, 94 S.Ct. at 3013. Such persons are considered public figures for all purposes. A second class envisaged might consist of those who become public figures through no purposeful action, “but the instances of truly involuntary public figures must be exceedingly rare.” Id. at 345, 94 S.Ct. at 3009. The third class, the relevant one for the purposes of this case, is constituted of persons who “have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Id. at 345, 94 S.Ct. at 3009. These persons are public figures for a limited range of issues. The Court gave guidance as to this category: “It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” Id. at 352, 94 S.Ct. at 3013. In Gertz, the plaintiff was a lawyer for a family seeking civil damages from a policeman for the killing of a son. A periodical of the John Birch Society, exercised over the criminal prosecution of the policeman, charged that plaintiff played a part in framing the policeman, falsely labelled plaintiff a “Leninist”, “Communist-fronter”, and planner of attacks on the police, and implied, falsely, that he had a criminal record. Despite the fact that plaintiff, a Chicagoan, had been an officer of civic groups and professional organizations, and had published several legal books and articles, the Court observed that he had had nothing to do with the criminal prosecution and had never discussed either the civil or criminal litigation with the press. “He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public’s attention in an attempt to influence its outcome.” Id. at 352, 94 S.Ct. at 3013. With Gertz, tinkering with the doctrinal balance struck between protecting uninhibited debate and protecting reputations seems to have ceased, at least for the present. The subsequent Supreme Court cases have, however, added a gloss in applying doctrine to specific cases. In Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), the Court had occasion to deal with a plaintiff who, to use the Gertz lexicon, had prominence, fame, and notoriety. A prominent member of Palm Beach society, she had gained even more publicity as the result of hotly contested divorce proceedings. The Court, however, stopped at the threshold, declining “to equate ‘public controversy’ with all controversies of interest to the public.” Id. at 454, 96 S.Ct. at 965. Marital difficulties, even among the wealthy, did not qualify, and plaintiff had not (despite holding some press conferences “to satisfy inquiring reporters”) publicized issues bearing on her married life. Id. at 454-55, 96 S.Ct. at 965. In Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979), plaintiff had, in the late 1950’s, failed to respond to a grand jury subpoena in a major Soviet spy ring investigation, pleaded guilty to a contempt charge, and received a suspended sentence. In a 1974 publication, plaintiff was referred to as a Soviet agent. The Court held that plaintiff’s voluntary choice not to appear before the grand jury, even knowing that publicity would result, was not enough to make him a public figure. Merely being associated “with a matter that attracts public attention”, absent any attempt to engage the attention of the public to influence the resolution of issues involved, was “no basis whatsoever for concluding that petitioner relinquished, to any degree, his interest in the protection of his name.” Id. at 167-68, 99 S.Ct. at 2708. Nor does a prior conviction “create an ‘open season’ for all who sought to defame persons convicted of a crime.” Id. at 169, 99 S.Ct. at 2708. The last in the series, Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), concerned a plaintiff who was a research behavioral scientist mentioned unfavorably in connection with Senator Proxmire’s “Golden Fleece of the Month” award to governmental agencies that had sponsored his research. Notwithstanding the facts that plaintiff had applied for and received funds from several federal and state agencies for his research in the amount of nearly half a million dollars over seven years and had filed required reports with at least one federal agency, the Court reasoned that any publicity came as a result of, and after, the Golden Fleece Award, that “those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.”, id. at 135, 99 S.Ct. at 2688, that he did not thrust himself into controversy to influence others, that concern over public expenditures was not enough to make plaintiff a public figure, that he had not attained any “role of public prominence in the broad question of concern about expenditures”, and finally, that he “did not have the regular and continuing access to the media that is one of the accouterments of having become a public figure.” Id. at 135-36, 99 S.Ct. at 2688. Although few generalizations can safely be promulgated, this review of Gertz and post- Gertz cases seems to warrant the comment of one scholar that: “A fairly high threshold of public activity is evidently necessary for a finding that a person has voluntarily plunged into a public controversy.” L. Tribe, American Constitutional Law 645 (1978). Moreover, the detailed, fact-sensitive nature of the precedent indicates that particularized determinations of public figure status are the rule. Accordingly, we begin our analysis by adopting a different approach from that of the district court, which took the broad position of deeming all corporations that sell products public figures, at least in relation to allegedly defamatory statements made about the quality of their products. We recognize the attraction of broad and clearcut definitions in terms of simplifying litigation, but we cannot see how corporations as a class can be said to be “public figures” for First Amendment purposes. For the most part, libel cases involving corporate plaintiffs, including the cases relied on by the district court, have not been decided on the broad grounds that all corporations are public figures. See, e. g., Trans World Accounts, Inc. v. Associated Press, 425 F.Supp. 814 (N.D. Cal. 1977). Indeed, not all such plaintiffs have been found to be public figures. See Vegod Corp. v. American Broadcasting Companies, Inc., 25 Cal.3d 763, 160 Cal.Rptr. 97, 603 P.2d 14 (1980). To the extent that access to the channels of communication is a meaningful factor, we suspect that many, if not most, corporations have no particular advantage over private individuals. The more significant factor of “thrusting”, here presumably by means of promotional efforts, is no less vulnerable to any effort to generalize. And the mere selling of products itself cannot easily be deemed a public controversy. The only case that supports the district court’s approach rests upon an assumption that a corporation’s interest in protecting its reputation is less important than that of an individual person. Martin Marietta Corp. v. Evening Star Newspaper, 417 F.Supp. 947 (D.D.C.1976). We know of no support in New Hampshire libel law-the applicable substantive law in this diversity action-for such an assumption, and doubt that the damages awarded in various libel actions are consistent with this view. In any event, the assumption’s implications are certainly overbroad within the context of the constitutional issue presented, for they would suggest that any plaintiff, whether a corporation, unincorporated business, sole proprietorship, or even a private individual, would have to meet the public figure’s burden of proof wherever the aspects of the plaintiff’s reputation that was allegedly damaged were economic or pecuniary, as opposed to personal. We shall therefore follow a more particularized approach. Our first task, following the guidance of Firestone, is to determine whether there was “the sort of public controversy referred to in Gertz”, 424 U.S. at 454, 96 S.Ct. at 965. Distinguishing what would be “an issue of public or general concern” under Rosenbloom, supra, 403 U.S. at 44, 91 S.Ct. at 1820, from a “public controversy” under Gertz is not a clearcut task. To the extent that we distinguish, we find ourselves returning to the job from which the Court in Gertz felt it had liberated us. The ipse dixit in Firestone that marital difficulties even of the wealthy were not matters of public controversy is understandable as an instinctive reaction that the public can have no interest other than satisfaction of its curiosity in the outcome of a divorce proceeding. The mere fact that the immediate proceeding is between private individuals, however, does not guarantee that there could be no public controversy. A court proceeding to authorize the termination of provision of life support equipment to an infant or ward might, for example, be the center of a public controversy. A case closer to the facts before us, i. e., a case involving commercial operations, is Vegod Corp. v. American Broadcasting Companies, Inc., supra. Plaintiff corporation engaged in the business of closing out stores and was allegedly defamed. The California Supreme Court, while conceding that the quality of goods for sale was a matter of public interest, held: “Criticism of commercial conduct does not deserve the special protection of the actual malice test. Balancing one individual’s limited First Amendment interest against another’s reputation interest (Herbert v. Lando (1979) 441 U.S. 153, 169, 99 S.Ct. 1635, 1645, 60 L.Ed.2d 115 . . .), we conclude that a person in the business world advertising his wares does not necessarily become part of an existing public controversy. It follows that those assuming the role of business practice critic do not acquire the First Amendment privilege to denigrate such entrepreneur.” (Footnote omitted.) 25 Cal .3d at 770, 160 Cal.Rptr. at 101, 603 P.2d at 18. To the extent that this language can be read as insulating all advertising and pro-business promotional efforts from public controversies, it is probably overbroad. Even though the need for “breathing space” to safeguard and ensure lively discussion of public issues originated in matters relating to governance, we can contemplate public controversies arising from commercial conduct as the cases we now discuss indicate. A starting point more fruitful than cata-loguing the field of action in which the alleged public controversy is found is inquiry as to whether the controversy preceded the alleged defamation. Gertz’s requirement that in order for individuals, otherwise not famous or pervasively influential, to merit public figure status, they must “have thrust themselves to the forefront of particular public controversies” would seem to imply a pre-existing controversy. This implication is reinforced by the stricture that “Those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.” Hutchinson v. Proxmire, supra, 443 U.S. at 135, 99 S.Ct. at 2688. See also Waldbaum v. Fairchild Publications, 627 F.2d 1287, 1295 n.19 (D.C.Cir. 1980). Thus, even in the case so strongly relied upon by the Globe, Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3d Cir. 1980), where plaintiff complained about television broadcasts highly critical of the price and quality of plaintiff’s meat products, both the television stations and the Bureau of Consumer Affairs had, well before the broadcasts, received numerous telephone complaints from consumers. Id. at 273-74. In Trans World Accounts, Inc. v. Associated Press, 425 F.Supp. 814 (N.D.Cal.1977), the plaintiff corporation, engaged in debt collecting, claimed to be libelled by erroneous reports of an impending Federal Trade Commission complaint against it. Plaintiff was held to have become a public figure not because of the alleged defamatory newspaper stories, but because an “integral feature of the Commission’s enforcement effort . . . [was] the publicity which attends the issuance of proposed complaints”, the purposes being both to warn consumers and to induce prompt compliance with remedial orders. Id. at 820. See also Orr v. Argus-Press Co., 586 F.2d 1108 (6th Cir. 1978) (prior criminal proceeding); Hoffman v. Washington Post Co., 433 F.Supp. 600 (D.D. C.1977) (prior Federal Trade Commission proceeding). In the instant case the record reveals no public controversy antedating the publication of the Globe articles. The articles report that a number of owners of company-built boats had had unhappy-or worse-experiences but we know little or nothing of ongoing private controversies, not to mention public ones. This case is to be contrasted with one where “persons actually were discussing some specific question . . . [and] a reasonable person would have expected persons beyond the immediate participants in the dispute to feel the impact of its resolution.” Waldbaum v. Fairchild Publications, Inc., supra, 627 F.2d at 1297 (footnote omitted). Even if it could be said that a prior public controversy existed, a second task of analysis is to look “to the nature and extent of [the plaintiff’s] participation in the particular controversy giving rise to the defamation.” Gertz, supra, 418 U.S. at 352, 96 S.Ct. at 3013. Wholly apart from a prior controversy, there is a consistent strain of inquiry in which the Court looks to see if a plaintiff, caught involuntarily in a proceeding, nevertheless exercises his volition in an effort to “engage the public’s attention in an attempt to influence [the] outcome.” Id., Firestone, supra, 424 U.S. at 454, n. 3; 455, 96 S.Ct. at 965; Proxmire, supra, 443 U.S. at 135, 99 S.Ct. at 2688; Wolston, supra, 443 U.S. at 167, 99 S.Ct. at 2708. The meager facts to be extracted from the complaint at bar reveal no suggestion of a “thrusting into the vortex”. Prior to the publication, we know only that the company had steadily, over seven years, increased its production tenfold, from eight to ninety a year. We know absolutely nothing of its promotional efforts, either in scale or nature. This record is to be contrasted with the concentrated “advertising blitz” which the Third Circuit held “invited public attention, comment, and criticism” in Steaks Unlimited, supra, at 274. See also Waldbaum v. Fairchild Publications, Inc., supra, 627 F.2d at 1300 (activist president of large cooperative, “mover and shaper of many of the cooperative’s controversial actions”, engaged in promotional activities projecting own image and that of cooperative); Yiamouyiannis v. Consumers Union of the United States, Inc., 619 F.2d 932 (2d Cir. 1980) (plaintiff was active opponent of fluoridation, had written 15 articles, testified in Congress, was paid employee of leading antifluoridation promotional organization, obtained wide publicity for himself and his views). Based on the record before us, what we appear to face in the case at bar is the paradigm middle echelon, successful manufacturer-merchant. While the company is recognized in its field and in its area, if such activity and success were alone sufficient to make it a public figure, virtually every entrepreneur, however parochial, who has avoided bankruptcy might also qualify. If it be suggested that only those who dominate or lead in a market be so designated, the courts would be thrust into the same sort of market and product analysis as occupies to such a large extent the antitrust field. If the plaintiff were to be deemed a public figure on the basis of the record before us, so might be, equally successful individuals, and so might be, we suggest, sellers of services as well as goods. At this point the law of defamation would largely be obliterated. The Globe, in language reminiscent of Rosenbloom, see n. 3 supra, argues that “Issues concerning the reliability of a product, the quality of a product, the utility of a product, and the safety of a product thus may well be just as important to the continued operation of a sound capitalistic democracy as issues concerning the fitness of an individual to hold public office.” Discounting a bit for hyperbole, we grant that today the interest of the consumer is taking on increased importance. Consumer-oriented legislation, agencies such as the Federal Trade Commission and the Food and Drug Administration, and the common and statutory law of product liability testify to and implement this newly recognized value in our society. But we do not feel justified in adding to the armament by declaring all reasonably successful manufacturers and merchants (and professionals) to be, without more, “public figures” in their community and obliged to prove “actual malice” to vindicate any maligning of their names and reputations. We therefore conclude that the Globe has not, on this limited record, met its burden of establishing that the company is a public figure. Its motion to dismiss was improperly granted. This is not to say that under no circumstances could the Globe meet that burden. On remand it is not foreclosed from attempting to introduce additional evidence to satisfy the standard. It will then be for the district court, on a fuller record, to determine whether a public controversy implicating the company existed apart from the challenged statements (or, perhaps, whether the likelihood of harm was such that public controversy was highly probable); and whether the prominence, power, or involvement of the company in respect to the controversy-or its public efforts to influence the results of such controversy-were such as to merit public figure treatment. Such questions as the extent to which the threshold of reputation protection depends upon the nature of the industry must await the completion of a more particularistic inquiry and argument directed thereto. II. DISCLOSURE OF CONFIDENTIAL SOURCES The Globe’s appeal is from the granting of plaintiff’s motion to compel answers to certain questions at deposition and to require production of certain documents. The documents and questions relevant to this appeal relate to the identity of and information imparted by three individuals who assertedly served as “confidential sources” for the Globe reporter. While it is not apparent from the record how many persons served as sources, the three “confidential” sources were clearly few among many non-confidential sources. The reporter’s deposition and the allegedly defamatory articles identify many named sources and the Globe proffered during discovery approximately 1500 pages of handwritten reporter’s notes in some 66 files. The record is sparse with respect to the nature of the confidential information withheld. One document was an apparently unsolicited letter to the Globe. A Globe editor passed the letter on to reporter Coughlin, thereby initiating research on the Bruno & Stillman story. The reporter subsequently spoke with the author of the letter, and at his request promised him confidentiality with respect to all information imparted. Two other persons were asserted to be confidential sources. With respect to all three individuals, the motion to compel sought no more than withheld reporter’s notes which named the sources: “Mr. Nix [plaintiff’s counsel]: ... in addition to simply naming the three people, do those notes contain other information which bear on the factual investigation which went into the Bruno and Stillman articles? “Mr. McHugh [defendant’s counsel]: Those notes contain information imparted to Mr. Coughlin by one or more of those three people.” The Globe also answered “yes” to an interrogatory asking whether “there are any reports, tests or evaluations among the documents claimed to be covered by the ‘confidential sources.’ ” Evidently the reporter’s notes sought contain or would lead to discovery of such “reports, tests or evaluations.” No specific reasons for the basis of the confidentiality claim shielding these two sources appears in the record. However, the following colloquy occurred Question: What is the specific issue in the case within the general category of "First Amendment - religion, press, commercial"? A. commercial speech B. libel, slander, defamation C. free exercise of religion D. establishment of religion (other than aid to parochial schools) E. aid to parochial schools F. press Answer:
songer_respond1_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". UNIVERSAL DRILLING COMPANY, a Colorado corporation, Plaintiff-Appellant, Cross Appellee, Jack Grynberg and Associates; Celeste Grynberg; and Jack J. Grynberg, Plaintiffs-Appellants, v. CAMAY DRILLING COMPANY, a California corporation, Defendant-Appel-lee, Cross Appellant. Nos. 81-2375, 81-2465. United States Court of Appeals, Tenth Circuit. June 21, 1984. Rodney R. Patula of Pryor, Carney & Johnson, P.C., Englewood, Colo. (Christopher N. Mammel of Pryor, Carney & Johnson, Englewood, Colo., Ernest W. Lohf of Lohf & Barnhill, P.C., Denver, Colo., William D. Scheid and Jeffrey L. Beattie of Law & Scheid, P.C., Denver, Colo., with him on the briefs), for plaintiff-appellants, cross appellee. John S. Pfeiffer, Denver, Colo. (Anne E. DeVine and Simon J. Freedman, Denver, Colo., with him on the brief) of Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo., for defendant-appellee, cross appellant. Before McWILLIAMS, BARRETT and McKAY, Circuit Judges. McKAY, Circuit Judge. ' The parties to this lawsuit are “experienced, sophisticated, intelligent business[men] with vast education and experience in petroleum engineering, ... oil and gas exploration, and ... [the] makeup and operation of oil drilling rigs and equipment.” Record, vol. 5, at 2. In June 1977 they entered into negotiations for the purchase and sale of two drilling rigs referred to by the parties as the Marthens Rig and Rig 10. The negotiations resulted in a contract dated July 1, 1977, and an amendment to that contract dated August 8, 1977. Despite the dates written on the documents, plaintiffs contend that there was no contract until the amendment was actually executed on August 19, 1977. Defendant does not challenge that contention. The contract defines the property to be sold as the personal property listed in Exhibits A, B and C to the contract. Rig 10 is defined as the property in Exhibit A and the Marthens Rig is defined as the property in Exhibits B and C. Record, supp. vol. 2, Plaintiffs’ Exhibit No. 1 at 1. Subsequent to the delivery of the property, plaintiffs complained that the property they received did not conform to the contract alleging that they were to receive two used but nevertheless operable drilling rigs. Defendant, however, relying on the contract, argued that it delivered all of the property listed in the specific exhibits. This diversity lawsuit resulted. At trial plaintiffs sought to introduce extrinsic evidence to establish certain representations and warranties made by defendant. The trial court applying the parol evidence rule embodied in Colo.Rev.Stat. § 4-2-202 (1973), excluded the evidence despite plaintiffs’ claims that the evidence was admissible under the fraud exception to the parol evidence rule. The trial court also rejected plaintiffs’ theory that there were breaches of express warranties based on the description of the goods contained in the contract. Plaintiffs appeal those rulings as well as the court’s award of attorneys’ fees. Parol Evidence When a contract has been reduced to writing and it is intended to be a final expression of the agreement between the parties, its terms cannot be altered or contradicted by evidence of prior oral agreements. Colo.Rev.Stat. § 4-2-202 (1973). The judge is to determine as a matter of law whether a writing was intended to be the final expression of an agreement. See Union Rural Electric Association v. Public Utilities Commission, 661 P.2d 247, 251 n. 5 (Colo.1983). A well recognized exception to the parol evidence rule is when a party to the contract can show fraud in the inducement of the contract. J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code § 2-11 at 88 (2d ed. 1980); see O’Neil v. International Harvester Co., 40 Colo.App. 369, 575 P.2d 862 (1978). To prevent the fraud exception from swallowing up the parol evidence rule when a party merely alleges fraud, Professors White and Summers recommend that a judge “hold a preliminary hearing away from the jury to determine whether the party offering the evidence is really seeking to show fraudulent misrepresentation or fraudulent nondisclosure.” J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code § 2-11 at 88 (2d ed. 1980). That procedure was followed by the trial court in this case. Plaintiffs made a lengthy offer of proof concerning the representations they allege occurred which amounted to fraud. Most of the alleged misrepresentations concerned the location, condition and use of the Marthens Rig. The trial court found plaintiffs’ offer of proof insufficient to submit the question of fraud in the inducement to the jury. The extrinsic evidence was accordingly excluded. On appeal plaintiffs contend that they established a prima facie case of fraud and that the trial court’s refusal to admit the evidence amounted to a directed verdict against plaintiffs on their claim of fraud. The elements of a prima facie case of fraud in Colorado are enumerated in Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458 (1937). They are: (1) A false representation of a material existing fact, or a representation as to a material existing fact made with a reckless disregard of its truth or falsity; or a concealment of a material existing fact, that in equity and good conscience should be disclosed. (2) Knowledge on the part of the one making the representation that it is false; or utter indifference to its truth or falsity; or knowledge that he is concealing a material fact that in equity and good conscience he should disclose. (3) Ignorance on the part of the one to whom representations are made or from whom such fact is concealed, of the falsity of the representation or of the existence of the fact concealed. (4) The representation or concealment made or practiced with the intention that it shall be acted upon. (5) Action on the representation or concealment resulting in damage. Id. 68 P.2d at 462 (citation omitted). Without discussing whether plaintiffs made a proper showing on each and every one of the five elements, we can say that the trial court did not err in excluding the parol evidence. The element of reliance on the representation is dispositive. Plaintiffs claim there was no contract until August 19, 1977. Plaintiffs also do not challenge the written provisions of the contract including the integration and exclusion of warranty clauses. In fact, plaintiffs’ attorney aided in the preparation of the document. Record, vol. 1, at 130. Accordingly, to the extent that plaintiffs had knowledge of the. conditions of the rigs and their inoperability prior to August 19th, they cannot claim that they relied on any oral representations, if any were made. On July 13, 1977 plaintiffs sent a telex to defendant which in part read: It was my understanding both rigs have been working and, in fact, were ready to continue contract work upon delivery to Universal Drilling Company. I was not made aware that your Rig 10 in California will have only 10,000 feet of drill pipe and no drill collars. I was informed that your rig coming from Dubai was short two engines and generators and a simple switch panel. I indicated to you that I have no objection to spending $300,000 putting it in working condition. Subsequently, Glenn Cooksey agreed to pay the $125,000 in July of 1978 and you agreed to include the two motors and generators that Raymond International unlawfully removed from your premises. I understood that this was in addition to the existing two motors and generators. At all times it was represented that the rig on the ship was a platform rig and, accordingly, we spent the last three weeks making arrangements to put that rig to work on a platform. We learned, on Monday, July 11, that the rig on the ship was never a platform rig but was taken off a jack-up and was unfit for platform workm [sic] We were also informed that in order for that rig to be fit for platform work, we would have to spend $3V2 million and if we were to put the rig to work on land our expenditures could be as high as $1V2 million depending on the condition of the various parts when they arrived, including, of course, the additional electrical panel switch which we found out several days ago does not have a simple switch panel missing but a complete electrical control system. Record, supp. vol. 2, Court Exhibit No. 1. In response, defendant sent a return telex the same day in which defendant said: We have received your telex of 7/13/77 and we are in complete disagreement as to any alleged representations on our part not contained in the Agreement of July 1, 1977. The assets being sold are described in Exhibits A, B, & C, and covered by Section 18.01 of the Agreement. Furthermore, per section 26.01 there are no representations other than set forth in the Agreement and modified by our letter of July 12, 1977. Id. Court Exhibit No. 2. As a matter of law we can say that plaintiffs did not reasonably rely on any representations extrinsic to the contract made prior to the exchange of telexes on July 13. As of that date plaintiff knew that no extrinsic representations were to be relied upon but nevertheless executed the amendment to the contract on August 19 without any modification of the representations contained in the contract. The trial court correctly excluded the extrinsic evidence. Breach of Express Warranties by Description Approaching this issue it must again be remembered that the parties to this suit are experienced in the field of oil and gas exploration and drilling. Furthermore, none of the parties allege that they were in an inferior bargaining position. Plaintiffs do not dispute the trial court’s finding that the contract, specifically paragraph 18.01, effectively disclaimed all implied warranties. Plaintiffs do allege, however, that the description of the assets contained in the contract created an express warranty that the assets would conform to that description. In addition, plaintiffs argue that such an express warranty of description cannot be disclaimed, Brief of Appellants at 32, or at least was not effectively disclaimed. Section 2-316 of the Uniform Commercial Code as adopted in Colorado provides for the modification and exclusion of warranties. Colo.Rev.Stat. § 4-2-316 (1973). In particular it provides that [wjords or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this article on parol or extrinsic evidence (section 4-2-202), negation or limitation is inoperative to the extent such construction is unreasonable. Id. § 4-2-316(1). Accordingly, the initial inquiry must be whether express warran: ties were created under section 4-2-313 and if so how they are affected by section 18.01 of the contract. Plaintiff argues that this case is controlled by section 4-2-313(b) which provides that “[a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” Colo.Rev.Stat. § 4-2-313(b). The principles underlying section 4-2-313 are set out in comment four to that section: 4. In view of the principle that the whole purpose of the law of warranty is to determine what it is that the seller has in essence agreed to sell, the policy is adopted of those cases which refuse except in unusual circumstances to recognize a material deletion of the seller’s obligation. Thus, a contract is normally a contract for a sale of something describable and described. A clause generally disclaiming “all warranties, express or implied” cannot reduce the seller’s obligation with respect to such description and therefore cannot be given literal effect under Section 2-316. This is not intended to mean that the parties, if they consciously desire, cannot make their own bargain as they wish. But in determining what they have agreed upon good faith is a factor and consideration should be given to the fact that the probability is small that a real price is intended to be exchanged for a pseudo-obligation. Id. § 4-2-313 comment 4. Similarly, Professors White and Summers argue that a seller should not be able to disclaim a warranty created by description. We hope courts will reach similar conclusions and strike down attempted disclaimers in cases in which the seller includes a description of the article which amounts to a warranty and then attempts to disclaim all express warranties. To illustrate further: assume that the sales contract describes machinery to be sold as a “haybaler” and then attempts to disclaim all express warranties. If the machine failed to bale hay and the buyer sued, we would argue that the disclaimer is ineffective. In our judgment, the description of the machine as a “haybaler” is a warranty that the machine will bale hay and, in the words of 2-316, a negation or limitation ought to be “inoperative” since it is inconsistent with the warranty. J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code § 12-3 at 433 (2d ed. 1980). Plaintiff relies principly on two cases that follow this rationale. Century Dodge Inc. v. Mobley, 155 Ga.App. 712, 272 S.E.2d 502, 504 (1980) (cert. denied); Blankenship v. Northtown Ford, Inc., 95 Ill.App.3d 303, 50 Ill.Dec. 850, 853-54, 420 N.E.2d 167, 170-71 (1981). In both cases automobile dealers had sold “new” cars which for various reasons did not meet the description of a “new” car. Consequently the courts held that the boilerplate disclaimer provisions of the consumer sales contracts did not relieve the dealers of their responsibility to deliver a “new” car. We do not question the rationale of the above authorities. Nonetheless, we find them not controlling in the instant case. If in this case we were dealing with a consumer transaction, as in the cases just cited, we would be more inclined to follow those authorities. However, as noted in subsequent cases, “the courts are less reluctant to hold educated businessmen to the terms of contracts to which they have entered than consumers dealing with skilled corporate sellers.” Bowers Manufacturing Co. v. Chicago Machine Tool Co., 117 Ill. App.3d 226, 72 Ill.Dec. 756, 761, 453 N.E.2d 61, 66 (1983) (discussing and distinguishing Blankenship v. Northtown Ford, Inc.). Furthermore, both sections 4-2-313 and 4-2-316 express the policy of the statutory scheme to allow parties to make any bargain they wish. Comment four to section 4-2-313 states that if parties consciously desire they can disclaim whatever warranties they wish. Colo.Rev.Stat. § 4-2-313 comment 4 (1973). In addition, comment one to section 4-2-316 explains that its purpose is to “protect a buyer from unexpected and unbargained language of disclaimer.” Id. § 4-2-316 comment 1. Consequently, we will not rewrite the contract in this case. The exhibits to the contract which described the goods must be read in conjunction with the contract itself. The contract states that the goods are used and there is no guarantee that they are fit or even operable. If we were to hold that the contract in the instant case created undisclaimable express warranties by description, we cannot think of alternative language that would memorialize the intent of the parties — to purchase and sell.used “as is’-’ equipment which has value but which may need repairs or additional parts to be fit and operable. Our holding on this issue does not leave plaintiffs in general without remedy in similar contexts or the plaintiffs in this case with an “empty bargain.” If the goods delivered do not meet the description in the contract there is a breach of the contract. In short, if no mast were delivered or if what was delivered was junk metal which in no way resembled a mast, plaintiffs would have a cause of action for breach of the contract. Finally, plaintiffs did not receive an empty bargain. An appraisal which plaintiffs commissioned valued the goods received at an amount in excess of $3,000,000. Record, supp. vol. 2, Court Exhibit No. 6. The purchase price for the assets was $2,925,000. The trial court did not err in excluding plaintiffs’ evidence regarding breach of warranty. Attorneys’ Fees Plaintiffs argue that the trial court made several errors in the proceedings to award attorneys’ fees and in the amount of the award. First, plaintiffs allege that the trial court erred in not apportioning the fees to reflect the fees incurred to recover the money owing under the note to which defendant was entitled as opposed to the fees incurred in defending against plaintiffs’ claims of breach of contract and warranty. Colorado follows the general rule that “[i]n the absence of a specific contractual or applicable statutory provision, attorney’s fees and expenses of litigation are not ordinarily recoverable.” Lovell Clay Products Co. v. Statewide Supply Co., 41 Colo.App. 166, 580 P.2d 1278, 1280-81 (1978). The promissory notes in the instant case contained the following provision: “If action be instituted on this note, the undersigned promises to pay such sums as the court may adjudge reasonable in such action as attorneys’ fees.” Record, supp. vol. 2, Plaintiffs’ Exhibit No. 2 (“Promissory Note”). In response to plaintiffs’ argument below that the attorneys’ fees must be apportioned, the court found that all the attorneys’ fees here sought by [defendant] were incurred in attempting to recover upon the promissory notes. The evidence at trial showed that [plaintiffs] had an unconditional obligation to pay $2,125,000.00 in principal on those two notes, plus interest. [Defendant] had to litigate in Texas to recover $1,000,000.00 of that amount. It recovered judgment for the remaining $1,125,-000.00, as well as interest on both notes, when this Court directed verdicts for [defendant] during trial. All but two of [plaintiffs’] claims were taken from the jury and decided adversely to it. [Plaintiffs’] insistence upon litigation in three states served primarily, if not solely, to delay [plaintiffs’] payment of its legal obligations. [Defendant] incurred large legal fees in this case simply because its persistence in seeking payment of debts clearly owed to it became more expensive as [plaintiffs’] resistance to paying those debts continued and grew litigious. Record, vol. 1, at 176. Plaintiffs urge us to follow the line of cases typified by Jackson v. Oppenheim, 533 F.2d 826, 827 (2d Cir.1976). Those cases suggest that fees incurred in defending ancillary claims in conjunction with an action to collect a note cannot be recovered under a provision in the note for attorneys’ fees. We choose not to follow those cases. First, Jackson is distinguishable because the attorneys’ fees clause involved in that case was much narrower. Id. at 830-31. Second, there is no Colorado case on point. Absent such authority we are inclined to follow the interpretation of Colorado law made by the district judge sitting in that state. Finally, the reasoning of the Eighth Circuit in Duryea v. Third Northwestern National Bank of Minneapolis, 606 F.2d 823 (8th Cir.1979), is persuasive. In that case a bank was defending claims that it violated inter alia the Bank Holding Company Act. The Bank counterclaimed on a note due from the plaintiff. Addressing an argument similar to that advanced here, the Eighth Circuit quoted approvingly from the trial court in that case: If the Bank had instituted suit to collect the note and plaintiff had, by way of counterclaim, served the complaint that is the basis of this action, all costs of both bringing suit and defending against the counterclaim would be “costs of collection” of the note. See Taylor v. Continental Supply Co., 16 F.2d 578 (8th Cir.1926). This court sees little difference where plaintiff brings suit to prevent collection of the note. Because it is necessary for the Bank to defend against such an action in order to collect on the note, attorney’s fees incurred in defending against plaintiff’s suit are a “cost of collection” as that term is used in the note. A contrary result would permit the maker of a note — by winning the “race to the courthouse” — to coerce settlement. This would render the “cost of collection” provision of little value, apparently contrary to what the parties to the note intended. Id. at 826. The finding of the trial court is consistent with both the facts and the law in this case. Plaintiffs also argue that the trial court erred in not submitting the determination of attorneys’ fees to the jury. The court initially determined that the issue of attorneys’ fees would be decided by the jury. In fact defendants presented their evidence to the jury. Subsequent to that presentation, the trial court sua sponte ruled that the matter was one to be determined by the court. The jury was instructed to disregard the evidence presented concerning attorneys’ fees. The trial court set a hearing to determine the amount of attorneys’ fees to be awarded and informed the parties that additional evidence could be presented at that hearing. Record, vol. 10, at 930-31. We find no prejudicial error in the trial court’s actions. The jury was given a curative instruction to disregard the evidence and the procedure adopted by the trial court is in harmony with Colorado law. Luby v. Jefferson County Bank of Lakewood, 28 Colo.App. 441, 476 P.2d 292 (1970) (cert. denied). Furthermore the plaintiffs cannot complain that the defendant was allowed to present additional evidence at the subsequent hearing — which evidence plaintiffs were not prepared to rebut. When the trial court ruled that the court would determine the issue of attorneys’ fees at a subsequent hearing, the court said: I don’t think I’ve got any choice but to decide this matter, and I’m not going to decide it on the basis of the evidence so far submitted. I would like to give the plaintiffs an opportunity for more fully contesting the reasonableness and amounts of the fees that are asserted, and, likewise, the defendants [sic] an opportunity to present any additional evidence they [sic] may have on attorneys’ fees, so that a hearing will be set at a separate later time as soon as application is made for a hearing on attorneys’ fees. Record, vol. 10, at 931. Finally our review of the record finds sufficient evidence to support the amount of attorneys’ fees assessed by the trial court. The trial court’s determination of attorneys’ fees is sustained. Defendant's Cross Appeal The jury awarded damages to the plaintiffs which resulted from a breach of warranty made concerning a replacement mast. Defendant alleges that the trial court’s failure to direct a verdict on the issues of lost wages and lost profits was error. Furthermore, they assert that there is insufficient evidence to support the jury’s verdict. We have reviewed the record and found that the plaintiffs elicited sufficient evidence that the lost wages amounted to $1,500.00 per day during the period in question. Similarly, there is evidence in the record from which the jury could find lost profits. Admittedly the evidence is such that a different trier of fact might reach the opposite conclusion. Defendant, however, does not allege that the trial court improperly instructed the jury. This court will not disturb the verdict of a jury if the case has been submitted on proper and adequate instructions and there is evidence to support the verdict. E.g., Colorado Coal Furnace Distributors, Inc. v. Prill Manufacturing Co., 605 F.2d 499, 502 (10th Cir.1979); Lloyd v. Grynberg, 464 F.2d 622, 625 (10th Cir.1972). The verdict and rulings of the trial court are in all aspects affirmed. AFFIRMED. The July 1, 1977 contract contained the following clauses: 18.01 The assets being purchased and sold hereunder are being sold by [defendant] in an “as-is" condition and without any warranty of operability or fitness. * * # * t* * 26.01 This Agreement and the exhibits hereto and the agreements referred to herein set forth the entire agreement and understanding of the parties in respect of the transactions contemplated hereby and supersede all prior agreements, arrangements and understandings relating to the subject matter hereof. No representation, promise, inducement or statement of intention has been made by [defendant] or [plaintiffs] which is not embodied in this Agreement or in the documents referred to herein, and neither [defendant] nor [plaintiffs] shall be bound by or liable for any alleged representation, promise, inducement or statements of intention not so set forth. Record, supp. vol. 2, Plaintiffs' Exhibit No. 1 at 9, 12. The amendment of August 8th contained a similar provision. Id. Plaintiffs’ Exhibit No. 2 at 5 & 6. 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_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. EDDY et al. v. PRUDENCE BONDS CORPORATION (New Company) et al. No. 10, Docket 20589. Circuit Court of Appeals, Second Circuit. Dec. 8, 1947. Writ of Certiorari Denied March 8, 1948. See 68 S.Ct. 664. Samuel Silbiger, of Brooklyn, N. Y., for George Eddy et al. Edward C. Wallace and Weil, Gotshal & Manges, all of New York City, for James L. White et al. Charles M. McCarty, of New York City, for Prudence Bonds Corporation (New Company). George C. Wildermuth, of Brooklyn, N. Y., for the trustee of debtor. J. M. Richardson Lyeth, of New York City, for Manhattan Bank. Irving L. Schanzer, for Prudence Realization Corporation. Maclay, Lyeth & Williams, of New York City (Robert L. Fay, of New York City, of counsel), for appellants President and Directors of Manhattan Co. Before L. HAND, SWAN, and CHASE, Circuit Judges. L. HAND, Circuit Judge. These appeals are from four orders in bankruptcy in the reorganization of Pru« dence Bonds Corporation under § 77B of the Bankruptcy Act, 11 U.S.C.A. .§ 207, a proceeding which has repeatedly come before this court. Three of the orders directed the distribution of the collateral, which secured the Fifth, Sixth and Ninth Series of bonds issued by the Debtor, and the fourth order concerned the collateral of all the series but the Fifteenth. We may confine ourselves to the order which directed distribution of the collateral of the Fifth Series; and, indeed even more narrowly, to whether the Publicly Held Bonds of that series were entitled to interest in full up to the time of payment, as against the bonds in the hands of the Prudence Realization Corporation (the successor of the guarantor of all the bonds), as against any claim of the former trustee (the Manhattan Bank) or as against the New Company itself. As a result of our decision in President and Directors of Manhattan Company v. Kelby, the Bank, as trustee for the Fifth Series, deposited with the substituted trustee for all the series over $1,500,000 which, with the remaining collateral, has created a fund large enough to pay the principal of the Publicly Held Bonds with interest in full up to August 1, 1945, and to leave a small surplus. The proper distribution of this fund depends upon the interpretation of the documents by which the Fifth Series was reorganized ; and it will be enough to make our discussion intelligible, if in what follows we quote the relevant passages from these. However, it is desirable as a preliminary to state the positions of the parties and the conclusions of the special master which the judge affirmed. The Publicly Held Bonds argue that, although their right to interest as against the New Company was reduced to the income from the collateral, as lienors upon that collateral they retained unimpaired their claim to full interest. The Guarantor argues that, as lienors the Publicly Held Bonds were as much limited to the income from the collateral as they were as obligees of the New Company. The master held with the Guarantor, and there arose from this holding a number of other issues which become moot, when, as we are doing, we sustain the position of the Publicly Held Bonds. By virtue of subdivision h of § 77B the order of confirmation discharged “the debtor from its debts and liabilities * * * except as provided in the plan or as may be reserved as aforesaid”; and it follows that no obligations remained except such as the New Company assumed. To learn what these were, we need look only at the Supplemental Trust Agreement, in which the New Company promised to pay interest only so far as the income of the collateral permitted, and the principal when it became due; and, in further confirmation of this, § 8 of Article II specifically exonerated the obligor from1 all deficiencies in interest which the income should not discharge. None of these clauses affected to deal with the claims of any of the bondholders as lienors upon the collateral; and a dispute had long since arisen between them and the Guarantor as to their relative rights as such. Section 11 of the original plan declared that the court should decide this dispute and went on to say that, if the Publicly Held Bonds were awarded priority, the Guarantor’s Bonds-should not “be entitled to receive any distributions on account of principal until all of the Publicly Held Bonds have been fully paid, redeemed, purchased or retired.” On July 21, 1937, Judge Inch decided that the Guarantor’s Bonds were “not entitled to-share in the collateral * * * on a parity” with the Publicly Held Bonds; that the Guarantor’s Bonds were “not enforcible obligations either as to principal or interest against their respective trust funds * * , until” the Publicly Held Bonds-should “have been paid or provided for in full, both as to principal and interest heretofore accrued or hereafter accruing”; and that they should be so entitled “if and when and only after” the Publicly Held Bonds should “have been paid or provided for in full, both as to principal and interest.” The Guarantor appealed from this-order, and the Amended Plan must have been drafted before the appeal was disposed of, for it incorporated in haec verba § 11 of the original Plan. The appeal was-dismissed on January 7, 1938, by virtue of a settlement which accepted the order of July 21, 1937, so far as it fixed the terms of the subordination; and the Amended Plan was confirmed on January 18, 1938, still without any change in § 11. The Supplemental Trust Agreement was drawn up thereafter and was executed as of March 1, 1938, though it was not approved until April 27, 1938. Two passages in Article II dealt with the subordination of the Guarantor’s Bonds: § 8 declared at its close that they should “not be entitled to share in the Collateral until all other Bonds have been paid or provided for in full according to their tenor”; and § 10, that they should not “participate in proceeds of the Collateral * * until the publicly owned or held Bonds have been fully paid, purchased or retired by the Corporation.” This last language also appeared in an “allonge,” affixed to the Guarantor’s Bonds. All this had taken place before anyone knew, or at least before any of the bondholders knew, anything about the conduct of the trustee of the collateral — the Manhattan Bank— whose accounts were not filed until the summer or autumn of 1938. Then for the first time it appeared that it had been guilty of breaches of trust for which we finally fixed its liability on February 2, 1945, six years later. The recoveries so obtained are to be treated as restorations to the trust fund. The order of July 21, 1937, having divided the bondholders into two groups, these were in the same relative position as though they had been secured by separate mortgages; and it would have been illegal to deny to the senior group its priority in interest, as much as it would have been to deny it its priority in principal. If this proceeding had been a ■“straight bankruptcy,” the preferred group would, moreover, have been entitled to full interest until payment, provided the collateral was large enough. A pledgee acquires an interest in the pledge, which is not affected by the bankruptcy, for bankruptcy is no more than a means of dis- tributing the debtor’s general assets ratably. The right which he acquires is intended to be security for his claim in full, and that includes interest till payment. In Ticonic National Bank v. Sprague, 303 U.S. 406, 58 S.Ct. 612, 82 L.Ed. 926, the court regarded it as a corollary of this general principle that the priority of creditors, preferred in the liquidation of a national bank, should include interest till payment; and, if there is a difference in the case at bar it must be because § 77B changed the law in the case of corporate reorganizations by limiting the interest on secured claims to the date when the plan goes into effect. There was nothing in § 77B(b) (5) — the only relevant provision — which suggests such a change. It is true that subdivision (d) of § 77B(b) (5), among the methods by which the claims of all objecting creditors might be “dealt with” included such “as will in the opirfion of the judge, under and consistent with the circumstances of the particular case, equitably and fairly provide such protection”; and this “protection” the act had just defined as “adequate protection for the realization by them of the value of their interests, claims, or liens.” That did permit the plan to “deal with” the claims of secured creditors by giving them new interests in the corporate property instead of paying them in cash; but it did .not affect their right to have the substituted interests computed upon the basis of the “value” of the interests — the liens — cancelled. Since the liens included interest to the date of payment, the substitute, to be lawful at all, had to include interest to the same date. Indeed, in the case of Chapter X, 11 U.S. C.A. § 501 et seq., — which in this regard is substantially identical with § 77B(b) (5), (d) — the Supreme Court recognized as much in its discussion in Vanston Bondholders Protective Committee v. Green. Hence it would have been illegal to deny • to the Publicly Held Bonds interest in cash or in some equivalent to the date of the payment of the principal, had the Plan or the Agreement so provided. Perhaps, since the question does not seem to have been raised when the Amended Plan was confirmed and the Agreement was approved, it would be now too late to upset them, if, as matter of interpretation they plainly intended this unlawful result, although that is not too clear in the case of the Agreement. Nevertheless, in the proper interpretation of these instruments, this consideration should weigh heavily in accordance with the well established canon that, when there is a choice, a court will prefer that construction which is lawful. Before resorting to the literal meaning of the words, it will be well also to consider whether there could have been a purpose in limiting the personal obligations of the New Company, and at the same time allowing full interest to the Publicly Held Bonds as lienors upon the collateral. We think that there may have been such a purpose. One of the chief aims of the reorganization, particularly in creating the New Company, was to get time to nurse along the collateral which it was hoped might recover part, perhaps much, of its original value. It was essential to this that none of the bondholders should be able to declare a default meanwhile, and that they must be content with whatever income might be realized. This the limitation of the New Company’s liability secured. It may be retorted that, although this might have accounted for the suspension of the right to interest until the due date of the bonds, it does not explain why all deficiencies in interest then existing, should be cancelled, as § 8 of Article II of the Agreement declared. But there was a possible reason for that as well. The due date of each series was 1945, but in each a majority of the Publicly Held Bonds, if they wished, might extend the maturity to 1950; and it was possible that some of the series might do so, and some might not. If the New Company were to be liable for any deficiency in interest upon the Publicly Held Bonds in a series which became due in 1945, the bondholders in that series would be able to take judgment and execution against it, and that would, or at least it might, put an end to any further efforts to conserve the collateral of those series which were to last five years longer. Moreover, if we assume that, not only as against the New Company, but as against the collateral of each series, the bonds were to become income bonds, a very unequal distribution becomes possible. It would by no means follow that, because the income from the collateral in one series had not been enough to pay the interest in full, the collateral itself would not show a surplus; indeed that is exactly what has happened in the case of the Fifth and Ninth Series. Yet, if the New. Company’s immunity from liability for all deficiencies in interest, applies as well to claims against, the collateral some of the res is released from the trust and turned over to the New Company. Quite aside from any question of its legality, this is mere spoliation of the beneficiaries of the trust, the Publicly Held Bonds; and we should not ascribe such an intent to the Plan unless the words allow us no escape. After these preliminary considerations we must consider the words themselves for they are always the most important evidence of the parties’ intention. The limitation of the New Company’s obligation as to interest was indeed unconditional: the bonds were “to bear interest * * * only to the extent that the annual collections of Net Income * * * received from the Collateral * * * will suffice.” However, that did not touch the priority of the bondholders as lienors; and, as we have seen, § 11 dealt with that by declaring that the Guarantor’s Bonds were not to “be entitled to receive any distributions on account of principal,” until the Publicly Held Bonds had been “fully paid.” That phrase was at best ambiguous ; and we can see no a priori reason for incorporating into it by reference the limitation of liability for interest which had been granted to the New Company. -Indeed,, “fully paid” would normally include payment of all interest. So much then for the words of the Plan itself. At the end of § 8 of Article II of the Agreement the words were that the Guarantor’s Bonds were not to “be entitled to share in the Collateral” until all the Publicly Held Bonds had been “paid or provided for in full according to their tenor.” That too was at best equivocal; one is reminded of the ancient phrase, “secundum tenorem,” which was usually employed to mean that the letter of the instrument itself should be followed. It is only when we come to § 10 of Article II that any difficulties arise; and it must be owned that the language there looks the other way. That section declared that upon none of the Guarantor’s Bonds shall “any payments of principal or interest be payable” until the Publicly Held Bonds shall “have been fully paid, purchased or retired by the Corporation”: i. e., the New Company. Read literally, it is hard to resist the construction that, after the New Company had discharged its individual promises, the Guarantor’s Bonds were to begin to take. Must we so read the language? The order of July 21, 1937, was of very different import; it allowed nothing to the Guarantor’s Bonds until the Publicly Held Bonds had been “paid or provided for in full both as to principal and interest heretofore accrued or hereafter accruing.” That language clearly meant interest in full, for the original plan had already limited the liability of the Debtor to income and it would be absurd to read such explicit language as intended merely to repeat the limitation; the contrast in locution cannot be disregarded. Conceivably an argument could have been made that by the time the Amended Plan was drafted the purpose had changed, even though § 11 remained as it was; but this the chronology forbids. The Guarantor appealed from the order, and it was not until January 8, 1938 — which was after the Amended Plan had been drafted in its final form — that the appeal was settled; and the settlement explicitly accepted the terms of the order, so far as it defined priority. Even though we were to suppose that the language of § 11 standing alone would have left the matter open, this sequence of events shows that they must have been used eodem intuitu as in the order: that is, that the Plan exactly incorporated the order pro tanto. Up to that time anyway, the lien of the Publicly Held Bonds to the collateral was unabated. As we have conceded, there is ground for saying that § 10 of Article II of the Agreement, read by itself, changed the Plan in this regard; but we think that the following is an inescapable answer to that position. After the Agreement had been drafted, it was approved without giving the Publicly Held Bonds any opportunity to withdraw from the reorganization. In so proceeding the judge relied upon the following language “of subdivision f of § 77B: “Before or after a plan is confirmed, changes and modifications * * * may be made with the approval of the judge after hearing upon notice * * * subject to the right of any creditor or stockholder who shall previously have accepted the plan to withdraw his acceptance * * * if, in the opinion of the judge, the change or modification will be materially adverse to the interest of such creditor or stockholder * * *” He approved the Agreement because he held that the changes from the Amended Plan were not “materially adverse to the interest” of the Publicly Held Bonds; and so they were not, if the priority of those bonds as beneficiaries of the trust still included the right to recover full interest. On the other hand, if § 10 took away that right, they were not only materially prejudiced, but very gravely prejudiced, and the order of approval was illegal, for the judge’s discretion was not controlling. Indeed, if the Agreement did make that change, we should be disposed to hold that the order approving it was open to collateral attack, unlike the order confirming the Amended Plan. We say this because the right of a creditor to withdraw when the change is “materially adverse,” seems to have been made a condition upon the court’s power to approve the change at all. That is very-different from countenancing and enforcing a plan which contains illegal stipulations. Be that as it may, here the judge held positively that no part of the Agreement was “materially adverse” to any rights which the Amended Plan had given. That interpretation may have been right, or it may have been wrong, qua interpretation; it makes no difference, for it was a deliberate ruling that any changes were not to be deemed “materially adverse” to rights secured by the Amended Plan; and that reading is authoritative and controlling. Section 10 of Article II of the Agreement must therefore accord with § 11 of the Amended Plan; and § 11 of the Amended Plan incorporated the order of July 21, 1937. Thus it appears that all relevant considerations conspire to demand that interpretation which the Publicly Held Bonds assert: i. e., the antecedent probabilities; the protection required for senior lienors; and the construction authoritatively placed upon the language used by the judge who authorized it. It is true that the special master in his findings of fact construed the Agreement otherwise; moreover, the findings in which he states this construction all begin with the words: “It was the intent of the parties and the fair intent and meaning of the Supplemental Trust Agreement.” But such findings have not the presumptive validity which Rule 53(e) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, gives to a master’s findings of fact. It is not necessary to analyze the mental process by which a court imposes legal consequences upon verbal utterances; possibly, it is proper to call the result a “finding of fact.” It is enough here, that, whatever the right description, such a finding is assailable as an ordinary finding of fact is not; for appellate courts have untrammelled power to interpret written documents. As we said at the outset, the conclusion we have reached disposes of all the issues raised upon the appeal. The master found that, as of August 1, 1945, the deficiency of interest due upon the Publicly Held Bonds of the Fifth Series was $411,783.18, and that the principal due was $1,077,450, making a total of $1,489,233.18. He also found that the value of the collateral — including the amount restored by the trustee — was $1,506,513.65, so that only a small surplus of about $17,000 was left to pay the principal of the Guarantor’s Bonds: $67,-200. Even though the income for the two years which have followed has been enough to pay the interest in full, there will be no surplus for anyone but the Guarantor. The figures for the Ninth Series show an even greater deficiency, for there is no possibility of any surplus whatever, not even for the Guarantor. The order will be reversed, and the cause will be remanded for further proceedings not inconsistent with the foregoing. 2 Cir., 147 F.2d 465 § 1(a), Article V. § 1(c), Article V. Consolidated Rock Products Co. v. DuBois, 312 U.S. 510, 527, 528, 61 S.Ct. 675, 85 L.Ed. 982; Group of Institutional Investors v. Chicago, Milwaukee, St. P. & P. R. Co., 318 U.S. 523, 546, 63 S.Ct. 727, 87 L.Ed. 959. Coder v. Arts, 8 Cir., 152 F. 943, 949, 950, 15 L.R.A.,N.S., 372, affirmed 213 U.S. 223, 245, 29 S.Ct. 436, 53 L.Ed. 772, 16 Ann.Cas. 1008. 7 Viner’s Abridgement, 110. 207(b) (5), Title 11 U.S.O.A. R. F. C. v. Denver & R. G. W. R. Co., 328 U.S. 495, 517, 66 S.Ct. 1282, 90 L.Ed. 1400. § 216(7), § 616(7), Title 11 U.S.C.A. 329 U.S. 156, 164, 67 S.Ct. 237. Hobbs v. McLean, 117 U.S. 567, 576, 6 S.Ct. 870, 29 L.Ed. 940; Great Northern Ry. Co. v. Delmar Co., 283 U.S. 686, 691, 51 S.Ct. 579, 75 L.Ed. 1349; In re John B. Rose Co., 2 Cir., 275 F. 409, 415; Behre v. Anchor Ins. Co., 2 Cir., 15 F.2d 380, 383. Downtown Investment Ass’n v. Boston Metropolitan Buildings, 1 Cir., 81 F.2d 314, 320. Road Improvement Dist. v. Roach, 8 Cir., 18 F.2d 755, 759; Sun Indemnity Co. v. American University, 58 App.D.C. 184, 26 F.2d 556, 557. Question: Is the first listed respondent bankrupt? A. Yes B. No 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. Melvin Leon DEATON, Appellant, v. UNITED STATES of America, Appellee. No. 9521. United States Court of Appeals Tenth Circuit. Oct. 6, 1967. James Bounds, Hugo, Okl, for appellant. William J. Settle, Asst. U. S. Atty., Muskogee, Okl. (Bruce Green, U. S. Atty., Muskogee, Okl., on the brief) for appellee. Before PICKETT, HILL and HICKEY, Circuit Judges. PER CURIAM. Appellant was tried and convicted before a jury on four counts, all charging violations of the Internal Revenue laws relating to nontaxpaid distilled spirits. In this direct appeal he urges reversible error because “Inconsistency and improvement of the testimony of prosecution witnesses who had testified at a previous trial were prejudicial to the right of the defendant to a fair trial under the Sixth Amendment to the United States Constitution.” Deaton was tried twice in this case. The first trial resulted in a jury disagreement and a second trial was subsequently had, from which comes this appeal. Witness Logan, an Alcohol and Tobacco Tax Agent, testified at both trials. In the first trial he testified about his surveillance of the premises where the violations occurred at a time prior to the arrest of Deaton. At the second trial Logan gave the same testimony and in addition testified about a conversation he overheard during the surveillance between Deaton and his father and that Deaton had “let out a whoop” as Logan got out of the car at the time of the arrests. It is this additional testimony that is under attack. Appellant’s contention is wholly without merit. It is undisputed that at the first trial no question was asked of Logan about the conversation. Such a question was asked of him at the second trial and the answer under attack was given. Counsel for appellant was then permitted to cross-examine Logan upon the fact that at the first trial he had given no testimony as to the conversation. Logan’s previous testimony was read back to him and he readily admitted that he had not testified at the first trial about any such conversation. There also appears to be no dispute about the testimony concerning the “whoop.” Counsel for appellant did not cross-examine the witness on this point and no argument is made concerning this matter in appellant’s brief. We have no way of knowing whether this was testimony not given at the first trial or whether it was given in response to a question asked at the second trial and not at the first. In any respect the witness’ testimony on this point is the same as numerous other government witnesses present at the arrest. The point raised is simply an attack upon the credibility of the witness. The credibility of witnesses is a matter for the jury in each case to consider after proper instruction from the trial judge. The record shows that the trial judge gave the jury a proper instruction upon the credibility of witnesses and we must assume that the jury made a determination of witness Logan’s credibility, but it was adverse to appellant’s contentions. It is appropriate to add that we have carefully reviewed the entire trial record and conclude that appellant was afforded a fair and impartial trial notwithstanding the outcome. Affirmed. . United States v. Hoffa, 6 Cir., 349 F.2d 20, 38; Bragg v. United States, 10 Cir., 330 F.2d 44; Corbin v. United States, 10 Cir., 253 F.2d 646. 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_genresp2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. Marie S. KIRKPATRICK, Margaret S. Hayes, and J. H. Pearson, Administrators of Estate of N. B. Smithey, deceased, Appellants, v. CONSOLIDATED UNDERWRITERS and T. H. Mastin & Company, Appellees. No. 7048. United States Court of Appeals Fourth Circuit. Argued Oct. 14, 1955. Decided Nov. 14, 1955 Kyle Hayes, North Wilkesboro, N. C., for appellants. Stephen Perry Millikin and McNeill Smith, Greensboro, N. C. (Smith, Moore, Smith & Pope, Greensboro, N. C., on the brief), for appellees. Before PARKER, Chief Judge, DO-BLE, Circuit Judge, and THOMSEN, District Judge. PARKER, Chief Judge. This is an appeal from a summary judgment for defendant in an action on a standard policy of Workmen’s Compensation and Employers’ Liability insurance. The insured was the owner of a hammer mill at which injuries were sustained by one Webster. The complaint alleges that Webster was an employee of insured, that he was injured while in and around the mill performing services for the insured, that the company was notified of the injury but denied liability therefor, and that Webster sued the insured who was forced to employ counsel and incur liability for counsel fees and to pay $3,625 in settlement of the suit. In its answer defendant admitted that it had denied liability under the policy and had refused to make any settlement of Webster’s claim or defend the suit instituted by him, but alleged that he was not an employee of insured. The policy of insurance provided not only for payment of amounts due to any employee under Workmen’s Compensation Laws but also to indemnify the insured against loss on account of employers’ liability and to defend all suits or other proceedings and demands therefor although these might be wholly groundless, false or fraudulent. The pertinent portions of the policy are as follows: “1. (b) To indemnify this Subscriber against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employes as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada. * * “3. To defend, in the name and on behalf of this Subscriber, any suits or other proceedings which may at any time be instituted against him on account of such injuries, including suits or other proceedings alleging such injuries and demanding damages or compensation therefor, although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudulent.” At a pre-trial hearing the following facts were developed. Webster was injured at insured's mill on September 21, 1951. On January 12, 1952, insured’s attorney wrote a letter to the company’s representative stating that Webster had received injuries at the mill, that the mill was covered by the policy and that Webster was contending that he was an employee at the time of the injury. On February 20 the representative of the company replied that an investigation did not disclose that Webster had sustained an injury by accident arising “out of and in the course of his employment” and that the company must decline the claim. On February 22, 1952, the representative of the company wrote insured’s attorney that he had had a conversation with Webster and the latter’s attorney regarding a settlement and that they had' indicated that they would enter suit. On March 3, 1952, the company’s representative wrote insured’s attorney asking that he be advised of any action taken in the case and that he be given copies of any pleadings filed. On December 30, 1952, Webster commenced an action against insured on account of the injury that had been under discussion and filed a complaint in which he alleged that, at the time of his injury “he was cleaning out and in front of and under a hammer mill” belonging to insured, when he was struck by a belt negligently removed from a pulley by one Williams, an employee of insured. Copies of the summons and complaint in the action were sent promptly by insured to the representative of the company, with demand that it defend the action; but these were returned with the statement that there was no insurance coverage that would apply. $3,625 was paid by the insured in settlement of the action brought by Webster. We think that, upon these facts, there was error in entering summary judgment for the company, which had undertaken to indemnify the insured, not only against liability for Workmen’s Compensation payments for which he might be liable, but also against liability on account of injuries to employees and to defend in his behalf any suits or other proceedings which might be instituted on account of such injuries “although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudulent”. Whether Webster was claiming to be an employee of insured or not was not settled by anything stipulated at the pre-trial conference; and, whether he was an employee or not, he had claimed that he was an employee, and when he filed his complaint, made allegations upon which he could have recovered as an employee. In considering whether that complaint alleged a cause of action which the company was bound under its policy to defend, the allegations thereof must be considered in the light of the prior negotiations had between the parties, in which the company had been notified that Webster was claiming that he had been injured while performing services as an employee, and in the light of the rule laid down in Employers’ Mut. Liability Insurance Co. of Wis. v. Hendrix, 4 Cir., 199 F.2d 53, 56, 41 A.L.R.2d 424, that “the policy should be so construed as to require the insurer to defend where it is apparent from the pleading that there is a reasonable possibility that the insured may be able, under the allegations of the complaint, to prove that his injuries were caused by some act or omission covered by the terms of the contract.” Any discussion of the facts of the case or the law applicable thereto is undesirable since the case is to be sent back for trial. It is sufficient to say that we think that there were issues of fact raised by the pleadings upon which the liability of defendant would depend and that it was error to enter a summary judgment for defendant for that reason. In this connection we repeat what we said in Pierce v. Ford Motor Co., 4 Cir., 190 F.2d 910, 915, as follows: “It is only where it is perfectly clear that there are no issues in the case that a summary judgment is proper. Even in cases where the judge is of opinion that he will have to direct a verdict for one party or the other on the issues that have been raised, he should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment, which was never intended to enable parties to evade jury trials or have the judge weigh evidence in advance of its being presented. We had occasion to deal with the undesirability of disposing of cases on motions for summary judgment where there was real controversy between the parties in the recent case of Stevens v. Howard D. Johnson Co., 4 Cir., 181 F.2d 390, 394, where we said: Tt must not be forgotten that, in actions at law, trial by jury of disputed questions of fact is guaranteed by the Constitution, and that even questions of law arising in a case involving questions of fact can be more satisfactorily decided when the facts are fully before the court than is possible upon pleadings and affidavits. The motion for summary judgment, authorized by rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A., which in effect legalizes the “speaking” demurrer, has an important place * * * in preventing undue delays in the trial of actions to which there is no real defense; but it should be granted only where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law. See Westinghouse Electric Corp. v. Bulldog Electric Products Co., 4 Cir., 179 F. 2d 139, 146; Wexler v. Maryland State Fair, 4 Cir., 164 F.2d 477. And this is true even where there is no dispute as to the evidentiary facts in the case but only as to the conclusions to be drawn therefrom. Paul E. Hawkinson Co. v. Dennis, 5 Cir., 166 F.2d 61; Detsch & Co. v. American Products Co., 9 Cir., 152 F.2d 473; Furton v. City of Men-asha, 7 Cir., 149 F.2d 945; Shea v. Second Nat. Bank, 76 U.S.App.D.C. 406, 133 F.2d 17, 22. As was said by Mr. Justice Jackson, speaking for the Supreme Court in Sartor v. Arkansas Natural Gas Co., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967: “Rule 56 authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.” ’ ” For the reasons stated, the summary judgment will be set aside and the case will be remanded for further proceedings not inconsistent herewith. Reversed. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_authoritydecision	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. PONTE, SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION v. REAL No. 83-1329. Argued January 9, 1985 Decided May 20, 1985 Rehnquist, J., delivered the opinion of the Court, in which BURGER, C. J., and White and O’Connor, JJ., joined, and in all but the second paragraph of footnote 2 of which Blackmun and Stevens, JJ., joined. Stevens, J., filed an opinion concurring in part, in Part II of which Blackmun, J., joined, post, p. 501. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 504. Powell, J., took no part in the consideration or decision of the case. Martin E. Levin, Assistant Attorney General of Massachusetts, argued the cause pro hac vice for petitioner. With him on the briefs were Francis X. Bellotti, Attorney General, and Barbara A. H. Smith, Assistant Attorney General. Jonathan Shapiro argued the cause and filed a brief for respondent. Justice Rehnquist delivered the opinion of the Court. The Supreme Judicial Court of Massachusetts held that a prison disciplinary hearing which forfeited “good time” credits of respondent John Real was conducted in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution because there did not appear in the administrative record of that hearing a statement of reasons as to why the disciplinary board refused to allow respondent to call witnesses whom he had requested. Real v. Superintendent, Massachusetts Correctional Institution, Walpole, 390 Mass. 399, 456 N. E. 2d 1111 (1983). We granted certiorari, 469 U. S. 814 (1984), to review this judgment because it seemed to us to go further than our pronouncement on this subject in Wolff v. McDonnell, 418 U. S. 539 (1974). While we agree with the Supreme Judicial Court of Massachusetts that the Due Process Clause of the Fourteenth Amendment requires that prison officials at some point state their reason for refusing to call witnesses requested by an inmate at a disciplinary hearing, we disagree with that court that such reasons or support for reasons must be placed in writing or otherwise exist as a part of the administrative record at the disciplinary hearing. We vacate the judgment of the Supreme Judicial Court, and remand the case to that court. In 1981 respondent John Real was an inmate at the Massachusetts Correctional Institution at Walpole. In December of that year he was working in the prison metal shop and heard a commotion in an adjacent office. He entered the office and observed another prisoner fighting with a corrections officer. A second corrections officer attempted to break up the fight, and ordered respondent and other inmates who were watching to disperse immediately. Respondent did not depart, and another corrections officer escorted him to his cell. One week later respondent was charged with three violations of prison regulations as a result of this imbroglio. He notified prison officials, on a form provided for that purpose, that he wished to call four witnesses at the hearing which would be held upon these charges: two fellow inmates, the charging officer, and the officer who was involved in the fight. A hearing was held on the charges in February 1982. At this hearing the charging officer appeared and testified against respondent, but the board declined to call the other witnesses requested by respondent. Respondent was advised of no reason for the denial of his request to call the other witnesses, and apparently whatever record there may be of this disciplinary proceeding does not indicate the board’s reason for declining to call the witnesses. The board found respondent guilty as charged, and after an administrative appeal in which penalties were reduced, respondent received the sanction of 25 days in isolation and the loss of 150 days of good-time credits. Respondent challenged these sanctions by seeking a writ of habeas corpus in the Massachusetts trial court. That court sustained respondent’s claim that petitioner Joseph Ponte, a Superintendent of the M. C. I. at Walpole, had deprived him of that due process guaranteed by the Fourteenth Amendment to the United States Constitution because no reasons whatsoever were advanced by petitioner in court as to why respondent was not allowed to call the requested witnesses at the hearing. On appeal to the Supreme Judicial Court of Massachusetts, this judgment was affirmed but for different reasons. That court discussed our decision in Wolff v. McDonnell, supra, and noted that it “[l]eft unresolved . . . the question whether the Federal due process requirements impose a duty on the board to explain, in any fashion, at the hearing or later, why witnesses were not allowed to testify.” 390 Mass., at 405, 456 N. E. 2d, at 1115. The court concluded that there must be some support in the “administrative record” to justify a decision not to call witnesses, and that the administrative record in this case was barren of any such support. Because of its conclusion, the court declared that the Massachusetts regulations governing the presentation of proof in disciplinary hearings, Mass. Admin. Code, Tit. 103, §430.14 (1978) were unconstitutional as to this point, because those regulations did not require that the administrative record contain facts or reasons supporting the board’s denial of an inmate’s witness request. 390 Mass., at 405-407, 456 N. E. 2d, at 1116, citing Hayes v. Thompson, 637 F. 2d 483, 487-489 (CA7 1980). Petitioner does not dispute that respondent possessed a “liberty” interest, by reason of the provisions of Massachusetts state law, affording him “good time” credits, an interest which could not be taken from him in a prison disciplinary hearing without the minimal safeguards afforded by the Due Process Clause of the Fourteenth Amendment. The touchstone of due process is freedom from arbitrary governmental action, Wolff, 418 U. S., at 558, but “[pjrison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Id., at 556. Chief among the due process minima outlined in Wolff was the right of an inmate to call and present witnesses and documentary evidence in his defense before the disciplinary board. We noted in Wolff and repeated in Baxter v. Palmigiano, 425 U. S. 308 (1976), that ordinarily the right to present evidence is basic to a fair hearing, but the inmate’s right to present witnesses is necessarily circumscribed by the penological need to provide swift discipline in individual cases. This right is additionally circumscribed by the very real dangers in prison life which may result from violence or intimidation directed at either other inmates or staff. We described the right to call witnesses as subject to the “mutual accommodation between institutional needs and objectives and the provisions of the Constitution . . . .” Baxter, supra, at 321, citing Wolff, supra, at 556. Thus the prisoner’s right to call witnesses and present evidence in disciplinary hearings could be denied if granting the request would be “unduly hazardous to institutional safety or correctional goals.” Wolff, supra, at 566; Baxter, supra, at 321. See also Hughes v. Rowe, 449 U. S. 5, 9, and n. 6 (1980). As we stated in Wolff: “Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the [disciplinary board] to state its reasons for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases.” 418 U. S., at 566. See Baxter, supra, at 321. Notwithstanding our suggestion that the board give reasons for denying an inmate’s witness request, nowhere in Wolff or Baxter did we require the disciplinary board to explain why it denied the prisoner’s request, nor did we require that those reasons otherwise appear in the administrative record. Eleven years of experience since our decision in Wolff does not indicate to us any need to now “prescribe” as constitutional doctrine that the disciplinary board must state in writing at the time of the hearing its reasons for refusing to call a witness. Nor can we conclude that the Due Process Clause of the Fourteenth Amendment may only be satisfied if the administrative record contains support or reasons for the board’s refusal. We therefore disagree with the reasoning of the Supreme Judicial Court of Massachusetts in this case. But we also disagree with petitioner’s intimation, Brief for Petitioner 53, that courts may only inquire into the reasons for denying witnesses when an inmate points to “substantial evidence” in the record that shows prison officials had ignored our requirements set forth in Wolff. We further disagree with petitioner’s contention that an inmate may not successfully challenge the board unless he can show a pattern or practice of refusing all witness requests. Nor do we agree with petitioner that “across-the-board” policies denying witness requests are invariably proper. Brief for Petitioner 53-55, n. 9. The question is exactly that posed by the Supreme Judicial Court in its opinion: “whether the Federal due process requirements impose a duty on the board to explain, in any fashion, at the hearing or later, why witnesses were not allowed to testify.” 390 Mass., at 405, 456 N. E. 2d, at 1115. We think the answer to that question is that prison officials may be required to explain, in a limited manner, the reason why witnesses were not allowed to testify, but that they may do so either by making the explanation a part of the “administrative record” in the disciplinary proceeding, or by presenting testimony in court if the deprivation of a “liberty” interest is challenged because of that claimed defect in the hearing. In other words, the prison officials may choose to explain their decision at the hearing, or they may choose to explain it “later.” Explaining the decision at the hearing will of course not immunize prison officials from a subsequent court challenge to their decision, but so long as the reasons are logically related to preventing undue hazards to “institutional safety or correctional goals,” the explanation should meet the due process requirements as outlined in Wolff. We have noted in Wolff, supra, and in Baxter, supra, that prison disciplinary hearings take place in tightly controlled environments peopled by those who have been unable to conduct themselves properly in a free society. Many of these persons have scant regard for property, life, or rules of order, Wolff, 418 U. S., at 561-562, and some might attempt to exploit the disciplinary process for their own ends. Id., at 563. The requirement that contemporaneous reasons for denying witnesses and evidence be given admittedly has some appeal, and it may commend itself to prison officials as a matter of choice: recollections of the event will be fresher at the moment, and it seems a more lawyerlike way to do things. But the primary business of prisons is the supervision of inmates, and it may well be that those charged with this responsibility feel that the additional administrative burdens which would be occasioned by such a requirement detract from the ability to perform the principal mission of the institution. While some might see an advantage in building up a sort of “common law of the prison” on this subject, others might prefer to deal with later court challenges on a case-by-case basis. We hold that the Constitution permits either approach. But to hold that the Due Process Clause confers a circumscribed right on the inmate to call witnesses at a disciplinary hearing, and then conclude that no explanation need ever be vouched for the denial of that right, either in the disciplinary proceeding itself or if that proceeding be later challenged in court, would change an admittedly circumscribed right into a privilege conferred in the unreviewable discretion of the disciplinary board. We think our holding in Wolff meant something more than that. We recognized there that the right to call witnesses was a limited one, available to the inmate “when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” Id., at 566. We further observed that “[p]rison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit, access to other inmates to collect statements or to compile other documentary evidence.” Ibid. Given these significant limitations on an inmate’s right to call witnesses, and given our further observation in Wolff that “[w]e should not be too ready to exercise oversight and put aside the judgment of prison administrators,” ibid., it may be that a constitutional challenge to a disciplinary hearing such as respondent’s in this case will rarely, if ever, be successful. But the fact that success may be rare in such actions does not warrant adoption of petitioner’s position, which would in effect place the burden of proof on the inmate to show why the action of the prison officials in refusing to call witnesses was arbitrary or capricious. These reasons are almost by definition not available to the inmate; given the sort of prison conditions that may exist, there may be a sound basis for refusing to tell the inmate what the reasons for denying his witness request are. Indeed, if prison security or similar paramount interests appear to require it, a court should allow at least in the first instance a prison official’s justification for refusal to call witnesses to be presented to the court in camera. But there is no reason for going further, and adding another weight to an already heavily weighted scale by requiring an inmate to produce evidence of which he will rarely be in possession, and of which the superintendent will almost always be in possession. See United States v. New York, N. H. & H. R. Co., 355 U. S. 253, 256, n. 5 (1957); Campbell v. United States, 365 U. S. 85, 96 (1961); South Carolina v. Katzenbach, 383 U. S. 301, 332 (1966). Respondent contends that he is entitled to an affirmance even though we reject the Massachusetts Supreme Judicial Court’s holding that §340.14(6) is unconstitutional. Respondent argues that the Supreme Judicial Court affirmed the trial court on two independent grounds: (1) the trial court’s simple finding that petitioner’s failure to rebut the allegations in respondent’s complaint entitled respondent to relief; and (2) the unconstitutionality of §340.14(6) because due process requires administrative record support for denial of witnesses. We think that the Supreme Judicial Court affirmed only on the second ground, and that is the issue for which we granted certiorari. This Court’s Rule 21.1(a); see also Rule 15.1(a). Respondent is of course entitled to urge affirmance of the judgment of the Supreme Judicial Court on a ground not adopted by that court, but whether the Supreme Judicial Court would have affirmed the judgment of the trial court on the reasoning we set forth today is, we think, too problematical for us to decide. It is a question best left to that court. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. Justice Powell took no part in the decision of this case. Massachusetts Admin. Code, Tit. 103, § 430.14 (1978), provides in part: “(4) If the inmate requests the presence of the reporting officer . . . the reporting officer shall attend the hearing except when the chairman determines in writing that the reporting officer is unavailable for prolonged period of time [sic] as a result of illness or other good cause. . . . “(5) The inmate shall be allowed but shall not be compelled to make an oral statement or to present a written statement in his own defense or in mitigation of punishment. “(6) The inmate shall be allowed to question the reporting officer, to question other witnesses, to call witnesses in his defense, or to present other evidence, when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. The factors that the chairman may consider when ruling on an inmate’s questioning of witnesses, offer of other evidence, or request to call witnesses shall include, but shall not be limited to, the following: “(a) Relevance “(b) Cumulative testimony “(c) Necessity “(d) Hazards presented by an individual case. “(7) the inmate shall be allowed to present relevant, non-cumulative documentary evidence in his defense.” Justice MARSHALL’S dissent maintains that a rule requiring contemporaneous reasons which are not made available to the prisoner is the only-one permitted by the United States Constitution. If indeed this rule is as beneficial to all concerned as the dissent claims, we may eventually see it universally adopted without the necessity of constitutionally commanding it. But we think that, as we indicate in this opinion, there are significant arguments in favor of allowing a State to follow either the approach advocated by the dissent or the approach described in this opinion. While the dissent seems to criticize our alternative as one which forces inmates to go to court to learn the basis for witness denials, it is difficult if not impossible to see how inmates under the dissent’s approach which requires contemporaneous reasons kept under seal would be able to get these reasons without the same sort of court proceeding. We think the dissent’s approach would very likely lead to an increasing need for lawyers attached to each prison in order to advise the correctional officials; words such as “irrelevant” or “cumulative,” offered by the dissent as possible bases for contemporary denials, post, at 517, are essentially lawyer’s words. We think that the process of preparing contemporary written reasons for exclusion of testimony is very likely to require more formality and structure than a practice which requires bringing in an attorney only when a lawsuit is filed. The former may be ideally suited to a heavily populated State of relatively small area such as Massachusetts, but the latter may be more desirable in a sparsely populated State of large area such as Nevada. We think the Constitution permits either alternative. The record in this case is exceedingly thin, and shows that some confusion existed at trial concerning respondent’s habeas petition seeking review of the February 1982 disciplinary hearing and another unrelated petition arising out of a 1980 disciplinary hearing. The trial court also apparently granted incomplete relief, which was only corrected 10 months later by another judge who then stayed the relief. Moreover, the Supreme Judicial Court did not just affirm the trial court, but remanded to permit petitioner, at his option, to conduct another disciplinary hearing. Given the state of this record, we think it wise to remand for further proceedings. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_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". CASPERS v. WATSON et al. No. 8095. Circuit Court of Appeals, Seventh Circuit. Dec. 2, 1942. Aiken, McCurry, Bennett & Cleary and Emmet J. Cleary, all of Chicago, 111., for appellant. Henry E. Ayers and Horace A. Young, both of Chicago, 111., for appellee. Before EVANS, MAJOR, and KERN-ER, Circuit Judges. KERNER, Circuit Judge. This is a suit in equity in the nature of a creditor’s bill, instituted by a receiver of a National Bank, seeking to discover assets in order that they might be applied to the satisfaction of a judgment against Irene M. Watson, obtained by the plaintiff on May 3, 1937, in the District Court of the United States for the Northern District of Illinois, Eastern Division, upon which judgment an execution had been issued and returned by the Marshal wholly unsatisfied. Rice v. McJohn, 244 Ill. 264, 91 N.E. 448. During the pendency of the suit, the plaintiff receiver, as judgment creditor, assigned to Paul Caspers the judgment and “any and all sum and sums of money that may hereafter be had or obtained by means thereof, or any proceedings to be had thereupon.” In the assignment of the judgment, the assignor agreed to the substitution of Paul Caspers as plaintiff in the complaint instituted by the receiver. April 22, 1942, Caspers, by order of the court, was substituted as plaintiff, and thereafter, on defendants’ motion, the complaint was dismissed and a decree for costs was rendered against the plaintiff. To reverse this decree, plaintiff appeals. The defendants contend that the District Court lost jurisdiction of the case after the-receiver assigned the judgment. The argument is that the original plaintiff was a receiver of a National Bank and filed his complaint in the proper exercise of his power in winding up the affairs of the bank, but that when he sold the judgment to a private individual who was substituted as plaintiff, both jurisdictional grounds disappeared. The defendants rely upon the case of Weaver v. Kelly, 5 Cir., 92 F. 417, as a precedent to support their argument. A careful reading of that case discloses that it was an original bill brought by a receiver of a National Bank against Kelly and Short to quiet title to land. During the pendency of the case, Short purchased the receiver’s interest in the land and thereafter the suit was prosecuted for his benefit. The reviewing court held that the trial court should not have permitted the litigation to proceed for the exclusive benefit of the original defendants. The Weaver case is clearly distinguishable and, in the view we take of the instant case, it is not applicable because it was an original suit, and not a creditor’s suit to enforce the payment of a judgment rendered by the same court. We think the rule is well established that the jurisdiction of a court over a particular subject matter and that court’s power to apply a remedy are coextensive; so that demands which are ancillary to the main action may be taken cognizance of by the court and determined in aid of its authority over the principal matter, and the court may entertain proceedings ancillary to its judgment, for the jurisdiction it originally acquired is not exhausted by the entry of the judgment, Pell v. McCabe, 2 Cir., 256 F. 512, 515. Consequently, our problem is to decide whether plaintiff’s complaint is an ancillary suit. If it is, obviously, the District Court erred in dismissing the complaint for want of jurisdiction. An ancillary suit in equity is one growing out of a prior suit in the same court, dependent upon and instituted for the purpose of obtaining and enforcing the fruits of a judgment in the former suit, Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230, 93 A.L.R. 195, regardless either of the citizenship of the parties or the amount in controversy. Hume v. City of New York, 2 Cir., 255 F. 488, 491. It may be maintained in the absence of a federal question, Dickey v. Turner, 6 Cir., 49 F.2d 998, and any party whose interest is affected may assert his rights by filing the bill on his own behalf, Krippendorf v. Hyde, 110 U.S. 276, 281, 282, 4 S.Ct. 27, 28 L.Ed. 145, irrespective of whether the court would have jurisdiction if the proceeding were an original one. The proceeding being ancillary and dependent, the jurisdiction of the court follows that of the original cause. Local Loan case, supra, page 239 of 292 U.S., page 696 of 54 S.Ct., 78 L.Ed. 1230, 93 A.L.R. 195. We observe that there is no question as to the validity of the judgment, the service of execution and the return thereof unsatisfied, and it is clear that by the complaint, the plaintiff is seeking to satisfy his judgment out of some equitable estate of the defendant Watson. We, therefore, conclude that the suit is ancillary to the original suit and that the court had jurisdiction of the subject matter of this action. The judgment is reversed, and the cause is remanded with directions to proceed in accordancé with this opinion. 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:
sc_threejudgefdc	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts. LAIRD, SECRETARY OF DEFENSE, et al. v. NELMS et al. No. 71-573. Argued April 17, 1972 Decided June 7, 1972 Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, Blackmun, and Powell, JJ., joined. Stewart, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 803. Douglas, J., took no part in the consideration or decision of the case. Richard B. Stone argued the cause for petitioners. On the brief were Solicitor General Griswold, Assistant Attorney General Gray, Wm. Terry Bray, Alan S. Rosen-thal, and Robert E. Kopp. George E. Allen, Sr., argued the cause and filed a brief for respondents. Mr. Justice Rehnquist delivered the opinion of the Court. Respondents brought this action in the United States District Court under the Federal Tort Claims Act, 28 U. S. C. §§ 1346 (b), 2671-2680. They sought recovery for property damage allegedly resulting from a sonic boom caused by California-based United States military planes flying over North Carolina on a training mission. The District Court entered summary judgment for petitioners, but on respondents’ appeal the United States Court of Appeals for the Fourth Circuit reversed. That court held that, although respondents had been unable to show negligence “either in the planning or operation of the flight,” they were nonetheless entitled to proceed on a theory of strict or absolute liability for ultrahazardous activities conducted by petitioners in their official capacities. That court relied on its earlier opinion in United States v. Praylou, 208 F. 2d 291 (1953), which in turn had distinguished this Court’s holding in Dalehite v. United States, 346 U. S. 15, 45 (1953). We granted certiorari. 404 U. S. 1037. Dalehite held that the Government was not liable for the extensive damage resulting from the explosion of two cargo vessels in the harbor of Texas City, Texas, in 1947. The Court’s opinion rejected various specifications of negligence on the part of Government employees that had been found by the District Court in that case, and then went on to treat petitioners’ claim that the Government was absolutely or strictly liable because of its having engaged in a dangerous activity. The Court said with respect to this aspect of the plaintiffs’ claim: “[T]he Act does not extend to such situations, though of course well known in tort law generally. It is to be invoked only on a 'negligent or wrongful act or omission’ of an employee. Absolute liability, of course, arises irrespective of how the tortfeasor conducts himself; it is imposed automatically when any damages are sustained as a result of the decision to engage in the dangerous activity.” 346 U. S., at 44. This Court’s resolution of the strict-liability issue in Dalehite did not turn on the question of whether the law of Texas or of some other State did or did not recognize strict liability for the conduct of ultrahazardous activities. It turned instead on the question of whether the language of the Federal Tort Claims Act permitted under any circumstances the imposition of liability upon the Government where there had been neither negligence nor wrongful act. The necessary consequence of the Court’s holding in Dalehite is that the statutory language “negligent or wrongful act or omission of any employee of the Government,” is a uniform federal limitation on the types of acts committed by its employees for which the United States has consented to be sued. Regardless of state law characterization, the Federal Tort Claims Act itself precludes the imposition of liability if there has been no negligence or other form of “misfeasance or nonfeasance,” 346 U. S., at 45, on the part of the Government. It is at least theoretically possible to argue that since Dalehite in discussing the legislative history of the Act said that “wrongful” acts could include some kind of trespass, and since courts imposed liability in some of the early blasting cases on the theory that the plaintiff’s action sounded in trespass, liability could be imposed on the Government in this case on a theory of trespass which would be within the Act’s waiver of immunity. We believe, however, that there is more than one reason for rejecting such an alternate basis of governmental liability here. The notion that a military plane on a high-altitude training flight itself intrudes upon any property interest of an owner of the land over which it flies was rejected in United States v. Causby, 328 U. S. 256 (1946). There this Court, construing the Air Commerce Act of 1926, 44 Stat. 568, as amended by the Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U. S. C. §401, said: “It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe — Cujus est solum ejus est usque ad coelum. But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.” 328 U. S., at 260-261. Thus, quite apart from what would very likely be insuperable problems of proof in connecting the passage of the plane over the owner’s air space with any ensuing damage from a sonic boom, this version of the trespass theory is ruled out by established federal law. Perhaps the precise holding of United States v. Causby, supra, could be skirted by analogizing the pressure wave of air characterizing a sonic boom to the concussion that on occasion accompanies blasting, and treating the air wave striking the actual land of the property owner as a direct intrusion caused by the pilot of the plane in the mold of the classical common-law theory of trespass. It is quite clear, however, that the presently prevailing view as to the theory of liability for blasting damage is frankly conceded to be strict liability for undertaking an ultrahazardous activity, rather than any attenuated notion of common-law trespass. See Restatement of Torts §§ 519, 520 (e); W. Prosser, Law of Torts § 75 (4th ed. 1971). While a leading North Carolina case on the subject of strict liability discusses the distinction between actions on the case and actions sounding in trespass that the earlier decisions made, it, too, actually grounds liability on the basis that he who engages in ultrahazardous activity must pay his way regardless of what precautions he may have taken. Guilford Realty & Ins. Co. v. Blythe Bros. Co., 260 N. C. 69, 131 S. E. 2d 900 (1963). More importantly, however, Congress in considering the Federal Tort Claims Act cannot realistically be said to have dealt in terms of either the jurisprudential distinctions peculiar to the forms of action at common law or the metaphysical subtleties that crop up in even contemporary discussions of tort theory. See Prosser, supra, at 492-496. The legislative history discussed in Dalehite indicates that Congress intended to permit liability essentially based on the intentionally wrongful or careless conduct of Government employees, for which the Government was to be made liable according to state law under the doctrine of respondeat superior, but to exclude liability based solely on the ultrahazardous nature of an activity undertaken by the Government. A House Judiciary Committee memorandum explaining the “discretionary function” exemption from the bill when that exemption first appeared in the draft legislation in 1942 made the comment that “the cases covered by that subsection would probably have been exempted ... by judicial construction” in any event, but that the exemption was intended to preclude any possibility “that the act would be construed to authorize suit for damages against the Government growing out of a legally authorized activity, such as a flood-control or irrigation project, where no wrongful act or omission on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious . . . .” Hearings on H. R. 5373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., ser. 13, pp. 65-66 (1942). The same memorandum, after noting the erosion of the doctrine of sovereign immunity over the years, observed with respect to the bill generally: “Yet a large and highly important area remains in which no satisfactory remedy has been provided for the wrongs of Government officers or employees, the ordinary 'commonlaw’ type of tort, such as personal injury or property damage caused by the negligent operation of an automobile.” Id., at 39. The type of trespass subsumed under the Act’s language making the Government liable for “wrongful” acts of its employees is exemplified by the conduct of the Government agents in Hatahley v. United States, 351 U. S. 173, 181. Liability of this type under the Act is not to be broadened beyond the intent of Congress by dressing up the substance of strict liability for ultra-hazardous activities in the garments of common-law trespass. To permit respondent to proceed on a trespass theory here would be to judicially admit at the back door that which has been legislatively turned away at the front door. We do not believe the Act permits such a result. Shortly after the decision of this Court in Dalehite, the facts of the Texas City catastrophe were presented to Congress in an effort to obtain legislative relief from that body. Congress, after conducting hearings and receiving reports, ultimately. enacted a bill granting compensation to the victims in question. 69 Stat. 707; H. R. Rep. No. 2024, 83d Cong., 2d Sess. (1954); S. Rep. No. 2363, 83d Cong., 2d Sess. (1954); H. R. Rep. No. 1305, 84th Cong., 1st Sess. (1955); H. R. Rep. No. 1623, 84th Cong., 1st Sess. (1955); S. Rep. No. 684, 84th Cong., 1st Sess. (1955). At no time during these hearings was there any effort made to modify this Court’s construction of the Tort Claims Act in Dalehite. Both by reason of stare decisis and by reason of Congress’ failure to make any statutory change upon again reviewing the subject, we regard the principle enunciated in Dalehite as controlling here. Since Dalehite held that the Federal Tort Claims Act did not authorize suit against the Government on claims based on strict liability for ultrahazardous activity, the Court of Appeals in the instant case erred in reaching a contrary conclusion. While as a matter of practice within the Circuit it may have been proper to rely upon United States v. Praylou, 208 F. 2d 291, it is clear that the holding of the latter case permitting imposition of strict liability on the Government where state law permits it is likewise inconsistent with Dalehite. Dalehite did not depend on the factual question of whether the Government was handling dangerous property, as opposed to operating a dangerous instrument but, rather, on the Court’s determination that the Act did not authorize the imposition of strict liability of any sort upon the Government. Indeed, even the dissenting opinion in Dalehite did not disagree with the conclusion of the majority on that point. Our reaffirmation of the construction put on the Federal Tort Claims Act in Dalehite makes it unnecessary to treat the scope of the discretionary-function exemption contained in the Act, or the other matters dealt with by the Court of Appeals. Reversed. Mr. Justice Douglas, having heard the argument, withdrew from participation in the consideration or decision of this case. Question: Was the case heard by a three-judge federal district court? A. Yes B. No Answer:
songer_suffic	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" 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". SIMON v. UNITED STATES. No. 4828. Circuit Court of Appeals, Fourth Circuit. Oct. 10, 1941. Writ of Certiorari Denied Dec. 22, 1941. See — U.S. —, 62 S.Ct. 412, 86 L.Ed. — Randolph Bias, of Williamson, W. Va. (Bias & Bias, of Williamson, W. Va., and Oscar Tabory, of Logan, W. Va., on the brief), for appellant. Charles M. Love, Jr., Asst. U. S. Atty. of Charleston, W. Va., and Raoul Berger, Sp. Asst, to Atty. Gen. (Lemuel R. Via, U. S. Atty., of Huntington, W. Va., on the brief), for appellee. Before PARKER, SOPER, and DOBIE, Circuit Judges. DOBIE, Circuit Judge. This case involves an appeal from a conviction and sentence by the District Court of the United States for the Southern District of West Virginia. The appellant, Doctor S. M. E. Simon (hereinafter called the appellant), was indicted at the October, 1940, term of court, for concealment of assets and false swearing, in connection with a bankruptcy proceeding, in violation of U.S.C.A. Title 11, Section 52, Subsection b(l) and (2). The Statute in question reads as follows: “A person shall be punished by imprisonment * * $ upon conviction of the offense of having knowingly and fraudulently (1) concealed from the * * * trustee * * * in any proceeding under this title, any property belonging to the estate of a bankrupt; or (2) made a false oath or account in or in relation to any proceeding under this title * * .” The indictment was framed in seven counts. Counts 1, 2, and 4 charge that the defendant concealed from his trustee in bankruptcy various accounts receivable, two of which hqd been reduced to judgment, amounting in all to approximately $377; Count 3 charges concealment of a judgment and certain collections made thereunder, after bankruptcy; Count 5 ‘charges concealment of three parcels of realty referred to as (1) Pikeville property; (2) Dahman property, upon which an apartment house was erected prior to the bankruptcy, and (3) Mercy Hospital. The realty was valued at approximately $65,000. ' Counts 6 and 7 charge false swearing with respect to the property covered by Counts 1 and 2. After an extended trial, the jury returned a verdict of guilty on all seven counts. The appellant had moved for a directed verdict of not guilty on each of the seven counts and this motion had been overruled. The court sentenced the defendant to three years in a federal penitentiary on each count, these sentences to run concurrently, and imposed a fine of $1,000 each on Counts 1, 2, and 5. The defendant makes three contentions which form the basis for this appeal: (1) that owing to the hostile conduct of the trial judge, he did not receive a fair and impartial trial as guaranteed by the Sixth Amendment; (2) there was no substantial evidence to support the conviction; (3) that incompetent evidence involving the commission of other crimes was erroneously admitted. We shall now discuss these contentions in their respective order. Appellant’s first contention is that he “has not had the fair and impartial trial guaranteed him by the Sixth Amendment” to the Federal Constitution. This contention is based on the conduct of Judge Harry E. Watkins, who presided over the trial of appellant. It would serve no useful purpose, and would unduly prolong this opinion, were we to set out at length, and to discuss in detail, the unwarranted nature of these allegations. But since these contentions are seriously made, and since the liberty of a human being is at stake, these contentions have all been carefully examined in the light of the record. We are, after such an examination, firmly convinced that they have no real basis in either law or fact and that appellant had a fair trial, with every safeguard to which he was entitled. The trial was long and trying on all those concerned. The evidence was complicated, there were numerous witnesses and a mass of documents figured conspicuously; while almost every point, on which any contest was possible, was bitterly fought by zealous counsel for appellant. Under these circumstances, we think Judge Watkins displayed a commendable patience. And, in the conduct of Judge Watkins, we find no ground for a reversal of the judgment in the instant case. We advert briefly to some instances which are stressed by counsel for appellant. When counsel for appellant informed the court that the government consumed too much time in placing certified copies of certain deeds in the record, Judge Watkins replied: “I think it has been done in a proper manner.” This, we are told, is a reprimand of appellant’s counsel, with an intimation that it might have been done for the purpose of influencing the jury. (Appellant’s brief, p. 14.) On the fifth day of the trial, at appellant’s request for a recess of thirty minutes for a conference with witnesses, the judge granted a recess of fourteen minutes (Appellant’s brief, p. 14). During the sixth day of the trial, the judge said: “Gentlemen, as indicated before, I want you all not to overlook anything, but at the same time let us endeavor to hurry along as much as possible. I indicated yesterday we were going to try to finish today. If we don’t, we just can’t, but we are going to do the best we can.” We certainly cannot read into this conduct of Judge Watkins any attempt on his part to prejudice the jury against the appellant. When Judge Watkins required certain documents to be read to the jury, instead of having these documents turned over to the jury, we think he acted quite properly. Yet appellant would have us believe by his comment: “The purpose is plain.” (Appellant’s brief, p. 16) that this was a deliberate attempt on the part of the trial judge to prejudice appellant improperly in the eyes of the jury. Appellant’s counsel vigorously insists that the judge, in many suggested instances, treated the government witnesses with the utmost courtesy and consideration, but by harsh and forbidding demeanor sought to discredit appellant’s witnesses and reflect seriously upon their credibility. We find no reasonable basis for this contention. Counsel for appellant was altogether too ready to attribute unworthy motives to the trial judge merely because the rulings of the judge were adverse to the contentions of appellant’s counsel. Appellant’s counsel strenuously complains that the trial judge questioned the witnesses from time to time in an effort to bring out the facts of the case. This is precisely what he should have done. It cannot be too often repeated, or too strongly emphasized, that the function of a federal trial judge is not that of an umpire or of a moderator at a town meeting. He sits to see that justice is done in the cases heard before him; and it is his duty to see that a case on trial is presented in such way as to be understood by the jury, as well as by himself. He should not hesitate to ask questions for the purpose of developing the facts; and it is no ground of complaint that the facts so developed may hurt or help one side or the other. In no case is the exercise of this power of the judge more important than in one like this, involving, as it does, lengthy circumstantial testimony, the force of which may be lost upon the jury if it is not properly presented or if its salient features are not called to the jury’s attention at the time. The judge is the only disinterested lawyer connected with the proceeding. He has no interest except to see that justice is done, and he has no more important duty than to see that the facts are properly developed and that their bearing upon the question at issue are clearly understood by the jury. The second ground of appeal goes to the heart of the case since it involves the contention that the evidence was insufficient to go to the jury. Dr. S. M. E. Simon, the appellant, was a physician who operated the Mercy Hospital at Williamson, West Virginia. Born in Austria in 1900 and educated in Germany where he received a medical degree, he came to America in 1928. After some professional experience in this country, he married a Roumanian woman who was also a graduate physician and had come to this country after the death of her first husband, a Roumanian banker, in 1929. After the marriage, the appellant was employed in hospitals in New Jersey and in West Virginia. Later he operated a hospital in Logan, West Virginia, which was subsequently sold, and finally he opened the Mercy Hospital at Williamson, West Virginia, in the early part of 1936. On November 2, 1938, the appellant filed a voluntary petition in bankruptcy in the Southern District of West Virginia, accompanied by schedules, showing liabilities of $46,181.50 and assets of $684.62. Among the liabilities were certain claims against the appellant for medical malpractice and certain debts due his wife and his brother-in-law. The assets included accounts receivable of $584.62 and one share of stock in a hospital of $100. It is admitted that the bankruptcy proceeding was instituted by the appellant because he had been mistakenly advised that he could thereby escape the payment of certain tort claims against him. The real estate covered by Count 5 greatly exceeds in value all the other property mentioned in the other counts of the indictment. In order to prove that moneys of the appellant had been invested in the real estate as charged, the government painstakingly presented a large mass of evidence consisting of checks, deposit slips, bank ledger pages, etc., and prepared ■two charts tracing the earnings of the appellant into the properties and the improvements thereon. The accuracy of these-charts is not denied by the appellant. Other documents were produced by the government to show that although the title to the several properties stood in his wife’s name, the appellant had a substantial and valuable interest therein. On June 14, 1937, and August 3, 1937, respectively, he gave two statements to Dun' and Bradstreet Agency in order to establish a credit rating for the hospital. He described himself in these statements as Dr. Simon, trading as Mercy Hospital, and claimed assets of $105,000 and liabilities of. $4,200, listing certain real estate of the aggregate value of $78,000 amongst the assets. The only answer to these statements on the part of the appellant is that they represented an inexcusable attempt on his' part to obtain a credit rating, by falsely representing that certain properties of his wife belonged to him. In further corroboration of the charts prepared by the government are the statements in a letter of April 9, 193/I written by the appellant to the American Consul at Bucharest, supporting an application for a visa for the mother of Mrs. Simon, in which letter the appellant stated that he was the owner of a 75-bed hospital, and that he owned real estate worth $75,000. The writing of this letter is admitted by the appellant, and again the only excuse offered was that the letter contained false statements regarding property that belonged to his wife. This and similar evidence tends to show that appellant/ chameleon-like, would change his color whenever it suited his purpose. Other circumstances were also corroborative of the appellant’s ownership of the property, including the payment of taxes and the collection of rents. The contents of income tax reports of the appellant for the years 1936 and 1937, hereinafter referred to, also tend to show that the business conducted at the hospital belonged to the appellant. But sufficient has been said to show that there is no merit in appellant’s contention that the evidence in the case was insufficient to go to the jury. Rather we think that there was ample evidence to support the government’s contention that a secret trust existed in favor of the appellant, creating in him an equitable interest which he should have listed in his schedules. There was also substantial testimony tending to show that each of the Credits which appellant had failed to include in his schedule of assets in the bankruptcy proceedings, as charged in the indictment, belonged to him. In order to offset the testimony of the government outlined above, the appellant produced certain witnesses who gave evidence which tended to show that all of the credits and properties mentioned in Counts 1, 2, 3 and 4 of the indictment belonged to Mrs. Simon and not to him. The appellant, and other members of the family of Mrs. Simon, testified that the money which had • been invested in the properties and in the hospital business had come from Roumania and had been derived from the estate of the first husband of Mrs. Simon or from her father or other members of the family, who were persons of substantial financial means in Roumania. The explanation was offered that the moneys shown on the government charts above mentioned had been advanced or loaned by Mrs. Simon to her husband out of the moneys which she had received from abroad. No records were produced to show how the moneys were transferred from Roumania to the United States or where they were deposited when received in this country. The appellant’s evidence indicated that the moneys received from Roumania were retained in the personal custody of Mrs. Simon, or other members of her family, and advanced by her to her husband from time to time as needed. It is quite obvious that it was the province of the jury to weigh the evidence offered by the government, and to decide whether or not the charges contained in the indictment had been sustained. There is no merit in the contention of the appellant that the evidence was insufficient to go to the jury. It is equally clear, we think, that the government offered evidence which amply sustained the charges of false swearing contained in Counts 6 and 7 of the indictment. Complaint is made under the third contention that during the cross-examination of the defendant, the court permitted him to be questioned with respect to statements made in an application for an immigration visa in the year 1927 and with respect to statements made in the federal income tax return filed by defendant for the year 1936 and the return filed by him for himself and wife for the year 1937. It is said, that, since these statements were made under oath, the examination was directed to showing that the defendant was guilty of crimes other than that for which he was on trial. It is a sufficient answer to this that no such objection was interposed at the time. Matheson v. United States, 227 U.S. 540, 545, 33 S.Ct. 355, 57 L.Ed. 631; United States v. Carey, 110 U.S. 51, 3 S.Ct. 424, 28 L.Ed. 67; Breedin v. United States, 4 Cir., 73 F.2d 778, 780. As was said in the last case cited: “We exercise the power to notice plain error not assigned only where necessary to prevent a miscarriage of justice; and a careful examination of the record convinces us that there is no occasion to exercise it here.” In addition to this, we think the cross-examination with respect to these matters was entirely proper. The tax returns tended to show the ownership by defendant of an interest in the hospital property in controversy; and the making of false statements under oath with respect to the date of birth in the application for the visa and with respect to an item of income of $4,000 in the 1937 tax return were proper subjects of inquiry, with the view of testing the credibility of the defendant who was testifying in his own behalf. Rees v. United States, 4 Cir., 95 F.2d 784, 793. In Pullman Co. v. Hall, 4 Cir., 55 F.2d 139, 141, we laid down the rule applicable in such cases as follows: “The rule is that for the purpose of impeaching the credibility of a witness he may be questioned as to misconduct, even as to collateral matters, which has a tendency to show his lack of honesty or truthfulness; the qualification of the rule being that the party questioning him is bound by his answers and may not contradict him with regard thereto. See Wigmore on Evidence (2d Ed.) vol. 2, § 982 et seq.; Greenleaf on Evidence, Lewis’ edition, § 459; 28 R.C.L. 607; Tla-koo-yel-lee v. United States, 167 U.S. 274, 277, 17 S.Ct. 855, 42 L.Ed. 166. It is said that it was within the discretion of the trial judge whether questions would be permitted as to acts of misconduct affecting credibility. We think, however, that the matter resting within the discretion of the judge is merely the extent to which such examination may be pursued.” It is argued that because the defendant was on trial he was not subject to impeachment by cross-examination as to other offenses like an ordinary witness. It is well settled, however, that where a defendant elects to make himself a witness he may be cross-examined as such. Walker v. United States, 4 Cir., 104 F.2d 465; Tierney v. United States, 4 Cir., 280 F. 322, 324; Christopoulo v. United States, 4 Cir., 230 F. 788, 791; Fields v. United States, 4 Cir., 221 F. 242; Nutter v. United States, 4 Cir., 289 F. 484, 485; Murray v. United States, 7 Cir., 10 F.2d 409, 412; United States v. Buckner, 2 Cir., 108 F.2d 921; United States v. Frankel, 2 Cir., 65 F.2d 285; United States v. Sager, 2 Cir., 49 F.2d 725; Merrill v. United States, 9 Cir., 6 F.2d 120; Coulston v. United States, 10 Cir., 51 F.2d 178, 181. In the case last cited the rule is well stated by the late Judge McDermott as follows: “If the defendant takes the witness stand, a different rule comes into play. He steps out of his character as a defendant, for the moment, and takes on the role of a witness, and as such becomes subject to cross-examination in the same manner and to the same extent as any other witness. * * In criminal cases, there may therefore be differences arising from variations in the common law in the different jurisdictions at the time of their admission into the Union. It may however be said that, subject to possible variants so arising, it is well settled in criminal cases in the federal courts that cross-examination must be confined to the subjects of the direct examination [citing cases]; that the credibility of a defendant who has testified may be impeached in the same manner and to the same extent as any other witness, and no further [citing cases] ; questions asked on cross-examination for the purposes of impeachment should be confined to acts or conduct which reflect upon his integrity or truthfulness, or so ‘pertain to his personal turpitude, such as to indicate such moral depravity or degeneracy on his part as would likely render him insensible to the 'obligations of an oath to speak the truth’ [citing case]; when such a question is asked and answered, the inquiry is ended; the government is bound by the answer in that it may not, on rebuttal, offer countervailing proof [citing cases]. To this latter rule, there is one exception: In criminal cases a witness may be asked, for purposes of impeachment, whether he has been convicted of a felony, infamous crime, petit larceny, or a crime involving moral turpitude, and on rebuttal’the record'of such conviction is admissible. [Citing cases.] A witness may not be asked if he has been accused or arrested for a crime, for the sufficient reason that it calls for hearsay evidence, and because accusation carries no implication of guilt. Glover v. United States, 8 Cir., 147 F. 426, 430, 8 Ann. Cas. 1184; Pittman v. United States, 8 Cir., 42 F.2d 793; State v. Greenburg, 59 Kan. 404, 53 P. 61.” In this connection, too, it may be noted that Judge Watkins carefully cautioned the jury: “Gentlemen, I feel that I should caution you that this defendant is being tried only for the charges contained in this indictment. He is not expected to stand trial here for any other crimes, and if he has committed other crimes, that alone is not sufficient to convict him of the charges in this indictment. Different matters have been introduced in the record here for the purpose of showing the conduct of the defendant, and for the purpose of giving the jury a picture as to his conduct, and his statements, in order that the jury may determine what weight to give his testimony.” (Appellant’s Appendix, pp. 162, 163.) We accordingly affirm the judgment of the District Court. Affirmed. Question: Did the court rule that there was insufficient evidence for conviction? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_source	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. IDAHO POWER CO v. FEDERAL POWER COMMISSION. No. 10530. United States Court of Appeals District of Columbia Circuit. Argued Dec. 11, 1950. Decided May 10, 1951. A. C. Inman, of the Bar of the Supreme Court of Idaho, Boise, Idaho, pro hac vice, by special leave of Court, and Harry Poth, Jr., Washington, D. C., for petitioner. Willard W. Gatchell, Asst. General Counsel, Federal Power Commission, Washington, D. G, with whom Bradford Ross, General Counsel, Federal Power Commission, and John C. Mason, Attorney, Federal Power Commission, Washington, D. G, were on the brief, for respondent. Before WILBUR K. MILLER and PRETTYMAN, Circuit Judges, and KIM-BROUGH STONE, Circuit Judge, retired (sitting by designation). PRETTYMAN, Circuit Judge. This is a petition to review an order of the Federal Power Commission, granting a license for the construction, operation and maintenance of a power project on federal lands. Petitioner (hereinafter called the “Company”) is a private corporation, a public utility, and was the applicant for the license. Its prayer to this court is that the order of the Commission be modified by striking therefrom certain conditions imposed by the Commission upon the license. In 1947 the Company applied for a license for the construction, operation and maintenance of a hydroelectric project, including a dam and a power plant, located on the Snake River in south-central Idaho, occupying in part lands of the United States. This application was pursuant to Section 4(e) of the Federal Power Act. In 1948 the Commission authorized issuance of the license but reserved “the right to determine at a later date what transmission facilities should be included in the license as part of the project.” In 1949 the Company applied for an amendment of its license to include as a part of the project two proposed high-voltage (138,000 volts) primary transmission lines. One such line was to run approximately 73 miles from the power plant to a point near the City of Boise. The other was to run approximately 116 miles from the plant to a point near the City of American Falls. Both lines crossed lands of the United States, and both joined the Company’s interconnected primary transmission system. The Company applied for and was granted prelicense permission to proceed with the construction of the two lines, pending consideration of the application for amendment. In October, 1949, the Commission entered an order, which superseded its original order, authorizing the license. Among other things, this new order authorized the construction of the two 138-kilo-volt lines as part of the project but imposed upon such construction and operation certain special conditions. These special conditions are reproduced in full text in footnote 2 below, but they may be summarized as follows: The Company shall not convert the lines to permit operation at a higher voltage without prior approval of the Commission, but, upon request of the Secretary of the Interior and after one year’s notice from the Commission, the Company shall convert the lines for operation at 230 kilo-volts. The Company shall permit the United States to interconnect any of its (i. e., the United States’) transmission facilities with these two lines, provided there is capacity available in the lines in excess of the needs of the Company. Upon completion of such interconnections the United States shall have the right to transfer energy over the lines in such amounts as will not unreasonably interfere with the Company’s use of the lines. After any such interconnection the Company shall, except in emergencies, maintain in a closed position all connections between the Company’s lines and the interconnecting facilities of the United States. If, after the Company commences transmission of energy over its lines for the United States, the Company notifies the Commission that it needs the whole or any substantial part of the capacity of the lines then being utilized by the United States, the Company may modify or revoke the agreement to remain interconnected by giving the Commission 30 months’ notice. Any agreement between the Company and the United States in connection with the transmission lines shall be effective only upon approval by the Commission. In the event the Company and the United States are unable to agree with respect to any matter arising in connection with the transmission lines, the question thereby raised shall be submitted to the Commission for determination. In sum, the Commission required, as conditions to the license, that the licensee agree to increase the capacity of its lines at Government request and thereafter to transmit Government power, the lines to remain interconnected unless and until thirty months’ notice is given. The question presented by this petition for review is whether the Commission has authority to impose those conditions upon a license for the construction and operation of a power project upon federal lands under the terms of the Federal Power Act. It is necessary that we first delimit the question. There is no doubt as to the power of Congress to impose such conditions as are proper in its judgment to be imposed upon the use of pubjic lands. The Constitution specifically provides: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; * * * ” No question of contract is involved. No question is raised as to the character of the transmission lines as primary and thus as part of the power project within the meaning of the statute. No question is raised as to the financial terms incorporated in the proposed conditions; the terms of the license as proposed by the Commission include detailed provisions as to compensation to the Company by the United States for the expense of converting the lines and for transmitting energy of or for the United States. As thus delimited the question before us is: Has Congress conferred upon the Commission authority to impose upon a license for a power project on public lands requirements that the licensee increase the proposed capacity of its primary transmission lines, interconnect those lines with power project of the United' States, and transmit over its lines for the United States power generated by or belonging to the United States? We are of opinion that the Commission does not have the statutory authority which it here claims. The question whether the United States, should require a private company, licensed to construct a private power plant on public lands or to cross public lands with its-transmission lines, to interconnect its facilities with public power projects, was a major one in the consideration of the policies and terms of power development upon, public property. It was a highly controversial issue. During the course of the-consideration of the bill which eventually became the Federal Power Act, the subject was broached at least three times, and upon each' occasion the witness testifying on behalf of the bill as the representative of the Power Commission assured the Congress that the proposed bill did not make it possible for the Government to utilize the transmission lines of private companies or to require the transmission of power generated ’by a Government plant over the lines of private operating companies. Three excerpts from this testimony are reproduced in footnote 4 below. Finally Congress inserted in the statute, as Section 201(f), a provision that no provision in that Part of the statute shall be deemed to include the United States or any of its agencies. That Part is the Part which deals with, among other things, the interconnection and coordination of facilities. The specific ex-elusion of the facilities of the United States from the possibility of interconnection and coordination under the terms of that Part of the statute seems clearly to be a declaration of congressional intent upon the subject. So much seems plain enough. At this point the argument turns to specific terms in the statute. The Federal Power Act is in Parts. Part I deals with licenses and Part II deals with the interconnection of facilities. The exclusion of the United States, which we have just discussed, is in Part II, and its language is: “No provision in this Part shall apply to, or be deemed to include, the United States * * The Commission says that under this language the exclusion applies only to provisions of Part II and has no application to licenses, which are treated in Part I. We examine Part I. It prescribes the conditions upon which licenses should be issued. It does not mention interconnection with Government facilities or transmission of Government energy as permissible conditions. But the Commission points to the catchall clause at the end of the specified conditions. That general clause, read in conjunction with the introductory clause of the Section, is: “All licenses issued under this Part shall be on the following conditions: * * . “(g) Such other conditions not inconsistent with the provisions of this Act as the commission may require.” The language prohibits conditions inconsistent with other provisions “of this Act” — not of Part I alone but of the Act. The exclusion of the United States from interconnecting arrangements, while in Part II, is nevertheless in the Act. And so this general clause in Part I, upon which the Commission relies, forbids conditions upon licenses inconsistent with other provisions throughout the Act. Specifically, it forbids, among other things, a condition inconsistent with the exclusion of the United States from interconnection arrangements. The Commission next says that its general power to prescribe conditions must be interpreted in the light of the opening clauses of the Section (Section 10, which is in Part I) which relates to those conditions. The first subparagraph in that Section reads, in pertinent part: “All licenses issued under this Part shall be on the following conditions: “(a) That the project adopted * * shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses, * * .” The Commission says that the interconnection of the Company’s transmission lines with Government generating and transmission facilities is best adapted to a comprehensive plan for developing a waterway for beneficial public uses and for the improvement and utilization of water-power development in the area. The Section last quoted (Section 10) ■obviously applies primarily to the type, location, size and purpose of the project. We think that its terms cannot be construed to require the interconnection of private facilities with public facilities and the compulsory transmission of public power by a private company, in view of the fact that Congress specifically forbade such interconnections in the Part of the statute which deals with that subject. The problem which is presented to us in this case is essentially a legislative problem. Congress has ample power, as we have said, to prescribe the conditions upon which the water-power potentialities of public lands shall be developed. Its only declaration upon the interconnection of Government and private facilities is the one to which we have referred and which precludes that interconnection. If the Commission believes it to be in the public interest to prescribe such a condition upon power project licenses, it should present its views to the Congress. The order of the Commission will be modified by the elimination therefrom of paragraph (F), and the case will be remanded to the Commission for the entry of an order in accordance with this opinion. Remanded for modification of order. . 41 Stat. 1065 (1920), as amended, 49 Stat. 840 (1935), 16 U.S.C.A. § 797(e). . “(F) The construction and operation of the transmission lines from the Bliss plant to substations near American Falls and Boise shall be subject to the following special conditions: “(1) The licensee shall not convert said lines to permit operation at a higher voltage without prior approval of the Commission. Upon the request of the Secretary of the Interior under appropriate authority, the licensee shall, after notice of at least one year from the Commission and within the time fixed by the Commission, convert said lines for operation at a voltage of 230 kv at the expense of the United States. “(2) After the initial construction of the lines or upon conversion of the lines to a higher voltage as herein provided, the licensee shall permit the United States, and the United States shall have the right, to interconnect any of its transmission facilities with said lines in a manner conforming to approved standards of practice for the interconnection of transmission circuits provided there is capacity available in said line or lines in excess of the needs of the licensee. The expense of such interconnection, including the expense of additional switching, relaying, and other protective devices, shall be borne by the United States, provided, however, that no such interconnection may be made without the prior approval of the Commission. “(3) Upon completion of any such interconnections, the United States shall have the right to transfer energy over said lines as initially or ultimately constructed in such amounts as will not unreasonably interfere with the licensee's use of said lines provided that the licensee shall be obligated to allow the transmission over the said lines by the United States of electric energy only to consuming facilities of the United States and to public bodies and cooperatives entitled to statutory preference in connection with the distribution and sale of electric energy by the United States. “(4) After any such interconnection of the facilities of the United States with said lines the licensee shall, except in emergencies, maintain in a closed position all connections under the licensee’s control between the licensee’s lines and the interconnecting facilities provided by the United States. “(5) Any interconnected power systems of the United States and the licensee shall be operated in parallel and in such manner as to render good and adequate service. Any inadvertent flow of energy from the lines of the United States into said lines or from said lines into the lines of the United States which may occur while the lines of both the li-eensee and the United States are electrically interconnected shall mutually be compensated for by later return in kind. Any scheduled transfer of energy over said lines for the account of the United States shall be settled for, or any investment in said lines made by the United States shall be liquidated, on reasonable terms under agreements which shall be negotiated between the licensee and the United States, said agreements to be subject to approval by the Commission. “(6) Until such agreements are completed, settlement for any such scheduled transfers of power shall be made on the following basis: If power and energy from the lines of the United States is transmitted over these lines, the monthly payment for such transmission shall be the amount of dollars representing that part of the monthly cost to the licensee of the section of the line or lines over which the power and energy is transmitted which the maximum transmission by the United States in ldlowatts during the month bears to the kilowatt capacity of such section of line or lines. The monthly cost to the licensee referred to herein shall be computed in conformity with the uniform system of accounts prescribed by the Commission. “(7) In the event the licensee, its successors or assigns, during any period in which the United States is transmitting power over these lines, shall require reciprocal accommodations for the transfer of power from these project lines over any lines of the United States connected to said lines of 'the licensee, such reciprocal accommodations shall be accorded to the licensee under like terms and conditions as herein provided for the transfer of power from the lines of the United States over said lines of the licensee. “(8) If, at any time subsequent to the date upon which the licensee commences the transmission of energy over said lines for the United States, the licensee notifies the Commission that the licensee needs for the transmission of electric energy in connection with its operations the whole or any substantial part of the capacity of the said lines, or part thereof, then being utilized by the United States, and the licensee makes satisfactory provision for reimbursement to the United States of the original cost to the United States of the facilities desired by the licensee, less accrued depreciation on the investment of the United States, the licensee may modify or revoke the then existing agreement to remain interconnected and to transmit energy for the United States by giving to the Commission 80 months’ notice, of the licensee’s intention to utilize additional capacity or the entire capacity of the lines, or part thereof, as the case may be, provided, however, that the United States may continue to utilize any capacity in the said lines to the extent that said capacity, if any, was provided by the United States at its expense without reimbursement by the licensee. “(9) If at any time in the future the said lines of the licensee are proposed for alteration or are altered, the Commission reserves the right, after 80 days’ notice and opportunity for hearing, to make a determination as to whether the lines after such alteration, either proposed or actual, will be subject to licensing by the Federal Power Commission under the then existing laws and regulations, and in the event that the Commission finds that the said alteration in the lines, either proposed or actual, so changes the functions .served by said lines and the source of energy transmitted over said lines as to make them, or any part of them, not subject to the licensing authority of the Commission under the then existing laws and regulations, the licensee hereby agrees to secure authority for the continued operation and maintenance of the lines, or such part of the lines, from the appropriate agency of the United States then having jurisdiction over’ the lands of the United States occupied by the lines, or part thereof, and upon securing said authority the licensee hereby agrees to surrender the license insofar as it authorizes operation and maintenance of the lines, or such parts thereof, which are found to be no longer subject to Commission jurisdiction. In the event that the licensee should fail to surrender the license insofar as it is applicable to the lines, or parts thereof, which may then be found by the Commission not to be subject to its jurisdiction, the Commission reserves the right to take appropriate action to have the license terminated with respect to said lines, or parts thereof, as provided in the then existing laws and regulations. “(10) Any agreement between the licensee and the United States in connection with said transmission lines or related facilities shall be effective only upon approval by the Commission. In the event the licensee and any agent of the United States are unable to agree with respect to any matter arising in connection with said transmission lines or related facilities, the question thereby raised shall be submitted to the Commission for determination.” . Art. IV, § 3, cl. 2. . Searings before Souse of Representar tines Committee on Interstate and Foreign Commerce on S. R. 5J$3, 74th Cong., 1st Sess. (1935): “Mr. Wolverton. Under the provisions of this bill, would it be possible for the Government in any of its electric operations to utilize the transmission lines of private companies? “Mr. DeVane. No, sir; and I want to make that very definite; and if there is any doubt about it, so far as I am concerned, such amendment might be made as to make it dear. * * “ * * * If * * * it is the desire of Congress not to * * * give the municipal or governmental projects the right to use the transmission linos of private industry — and we have not succeeded in making that dear in this bill —an amendment should be proposed that will do it better. It will receive our hearty endorsement. “Mr. Wolverton. Let me suggest a possible situation. Your answer will darify my mind considerably as to the effect of this bill in the particular instance. Assume that a municipality built a plant for the generation and distribution of electric energy; assume that a distant community is serviced by a company that comes under the regulation of this bill in that it procures its electric energy from outside of the State. Could the dty which has constructed a plant, but has no transmission lines, utilize the system of transmission lines constructed by the private company? “Air. DeVane. No, sir. “Mr. Wolverton. Then, you do not think that the power given in this bill to the Federal Power Commission would enable it to direct that those transmission lines be so used? “Mr. DeVane. Mr. Wolverton, my answer to that is this: That if there is any doubt about it and this committee can remove that doubt by additional words in this bill, let us put them in.” (Pp. 514-515.)' “Mr. Mapes. Is it the purpose to compel the privately owned transmission companies to carry the energy of municipal projects as well as private projects? “Mr. DeVane. No, sir; I thought I had made that very clear. If I did not, I want to make it very clear now. It is not intended to give the Commission power to require the private lines to take on any power generated by municipal plants or by any Government plant.” (P. 546.) “Mr. DeVane. * * * The only thing that we have discussed is the desirability of making it perfectly clear in this law that it is not the intention of this law to reach out and get control of that power nor is it the intention of this law to authorize this Commission to require the transmission of that power on the lines of these private operating companies.” (P.559.) . 49 Stat. 848 (1935), 16 U.S.C.A. § 824(f). . Sec. 201 (f), 49 Stat. 848 (1935), 16 U.S.C.A. § 824(f). . Sec. 10(g), 41 Stat. 1070 (1920), as amended, 49 Stat. 844 (1935), 16 U.S.C.A. § 803(g). Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
songer_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. Beatrice LINSCOTT, Plaintiff, Appellant, v. MILLERS FALLS COMPANY et al., Defendants, Appellees. No. 7723. United States Court of Appeals, First Circuit. March 29, 1971. Coffin, Circuit Judge, concurred and filed opinion. Gerald R. Hegarty, Springfield, Mass., with whom Leonard M. Fisher, Springfield, Mass., and Boardman Noland, Takoma Park, Md., were on brief, for plaintiff-appellant. Cornelius J. Moynihan, Jr., Boston, Mass., with whom Richard L. Morningstar, and Peabody, Brown, Rowley & Storey, Boston, Mass., were on brief, for Millers Falls Co., appellee. Allan R. Rosenberg, Boston, Mass., with whom Putnam, Bell & Russell, Boston, Mass., was on brief, for United Electrical, Radio & Machine Workers of America (UE), and UE Local 274, appellees. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. ALDRICH, Chief Judge. Plaintiff, Linscott, a Seventh-day Adventist, was employed by defendant Millers Falls Company, hereinafter company, from 1950 until October 1968. In 1968 defendant United Electrical, Radio & Machine Workers of America (UE), and its Local 274, hereinafter union, having been certified two years previously by the NLRB, entered into a collective bargaining agreement with the company which contained a provision requiring a union shop. Plaintiff refused to pay initiation fees or dues because her religion forbad contributing financial or other support to a union. There is no question as to the sincerity of her conviction, or of its being a recognized religious belief. Admittedly, under the collective bargaining agreement, plaintiff’s sole obligation to the union was the payment of dues and fees. She had offered to pay the equivalent to a non-religious charity, but the union declined the proposal. The company then discharged her. The present suit is for damages as well as injunctive and declaratory relief, based essentially upon the claim that plaintiff’s discharge deprived her of the right to free exercise of religion under the First Amendment. The district court granted the defendants’ motions to dismiss, 316 F.Supp. 1369, and plaintiff appeals. Defendants first contend that plaintiff was discharged as the result of a private arrangement, and that the governmental activity necessary to bring the First Amendment in play was not present. Judge Coffin would subscribe to this. The majority of the court, however, while acknowledging that the present case may go a little further, finds insufficient basis for distinguishing Railway Employes’ Dep’t v. Hanson, 1956, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112. There the Railway Labor Act, as amended, 45 U.S.C. § 152, Eleventh, authorized union shop provisions in collective bargaining agreements. The state constitution contained a so-called “right to work” provision, which prohibited such agreements. Employees of a railroad, who did not wish to join the union, brought suit to enjoin enforcement of the union shop provision of its collective bargaining agreement. In holding that the Railway Labor Act controlled, the Court first considered whether Congress, having merely permitted union shop agreements when entered into by private parties, had given such agreements “the imprimatur of the federal law” so as to prevail over the state statute. The Court concluded that it had. It then turned to the question whether Congress could do this despite the resulting burden put on a dissenting employee’s constitutional rights, deciding in favor of the union shop, see post. Defendants would distinguish Hanson because, unlike the Railway Labor Act, section 14(b) of the LMRA, 29 U.S.C. § 164(b), allows the state to outlaw union shop agreements. This misapprehends what Hanson basically decided. If federal support attaches to the union shop if and when two parties agree to it, it is the same support, once it attaches, even though the consent of a third party, the state, is a pre-condition. The means by which the agreement is attained does not affect the significant language in Hanson, 351 U.S. at 232, 76 S.Ct. at 718, “[T]he federal statute is the source of the power and authority by which any private rights are lost or sacrificed.” and note 4 appended thereto, “4. Once courts enforce the agreement the sanction of government is, of course, put behind them. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187; Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586.” What the cited cases mean, in terms of the present case, is that if the company-declined to discharge the plaintiff, the union could institute a federally supported suit, if not an unfair labor practice charge, for failure to live up to its bargaining agreement. We can attach no weight in this context to the circumstance that section 152 of the Railway Labor Act affirmatively authorizes the union shop, while section 14(b) of the LMRA is cast in terms of empowering the state to outlaw it, by a so-called “right to work” law, a difference noted, without comment, in n. 5 of the Hanson opinion. 351 U.S. at 232, 76 S.Ct. 714. By section 14(b)’s necessary implication, federal approval, and hence federal enforcement, will exist in those states that do not enact such a law. See also section 8(a) (3), § 158(a) (3). We know of no principle that measures governmental action by the frequency or infrequency of its exercise. In the case at bar the union’s demand that the plaintiff be discharged is as federally supported as was the similar demand in Hanson. The more difficult question is that posed by the First Amendment: whether the governmental interest expressed in the labor legislation can justify this interference with plaintiff’s competing interest in choosing the employment she wishes without cost to her religious convictions. Freedom of exercise of religion is not absolute. Plaintiff concedes, as she must, that there must be a “balancing” and that the governmental interest may be paramount if it is “compelling.” Sherbert v. Verner, 1963, 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965. The elements of such a balancing test include, in addition to the importance of the governmental and religious interests, the degree of interference with the religious practice. See Clark, Guidelines for the Free Exercise Clause, 83 Harv.L.Rev. 327 (1969); Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, 80 Harv.L.Rev. 1381, 1390 (1967). We turn, therefore, to an appraisal. A strong governmental interest in the union shop was found in Hanson. Some employees claimed that being obliged to join the union deprived them of freedom of association as guaranteed by the First Amendment, and that compelling the payment of dues violated Fifth Amendment due process. As against these contentions the Court held that “ [industrial peace along the arteries of commerce [as] a legitimate objective,” 351 U.S. at 233, 76 S.Ct. at 719, justified the legislation. Undoubtedly the Court recognized the validity and importance of the congressional purpose to achieve uniform union membership, both to further peaceful labor relations and, as desirable for its own sake, to require a fair sharing of the costs of collective bargaining. Sherbert v. Verner, to which we will return later, in fact adopted its “compelling state interest” test from freedom of association cases, see Sherbert v. Verner, 374 U.S. at 403, 83 S.Ct. 1790, citing N.A.A.C.P. v. Button, 1963, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405, so that Hanson’s balancing, and thus its conclusion, should be the same in the case before us, since the government’s interest, and the plaintiff’s burden (loss of a union-shop employer) are apparently the same. However, plaintiff points out that Hanson explicitly reserved some First Amendment questions: “[I]f the exaction of dues, initiation fees, or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case.” 351 U.S. at 238, 76 S.Ct. at 721. It is not altogether clear what the Court meant to include by this language. To the extent that it was speaking of dues that were sought to be applied to nonunion objectives, cf. International Ass’n of Machinists v. Street, 1961, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141, there is no such suggestion in the case at bar. Nor is the union one that is devoted to forcing its members into ideological molds via membership restrictions, e. g., barring Communists, a problem of which Hanson took note. However, on the assumption that Hanson faced only with the more general freedom of association issue, is to be read as reserving our present question, we proceed with a balancing of the interests. In plaintiff’s case of Sherbert v. Verner, a Seventh-day Adventist was discharged because she refused, on religious grounds, to work on Saturdays. She found herself unable to secure other employment not requiring Saturday work, and applied for unemployment compensation. The state refused, asserting that she was not involuntarily out of work. Mr. Justice Brennan, speaking for the Court, held the state interest insufficient to justify the interference with plaintiff’s exercise of her religion. The state interest in Sherbert, in compensating or not compensating single individuals, seems less substantial than the federal interest in Hanson in preserving the principle and broad purposes of the union shop. Here it is plaintiff’s turn to seek to distinguish Hanson on the ground that the LMRA, unlike the Railway Labor Act, permits a state to outlaw the union shop by a “right to work” law. This circumstance, plaintiff says, demonstrates that there is no “compelling state [sic] interest” here to conflict with her religious interest. In our opinion the fact that Congress chose to share the decision, and to give the final say to the state, does not deny a federal interest in the case at bar, any more than leaving the final word to the parties themselves denied it in Hanson. The federal interest attaches if, and when, such action is believed locally to be appropriate as well as in furtherance of the policies behind the LMRA recited in 29 U.S.C. § 151. With respect to Sherbert, while the government always has an interest in saving money, its primary concern in connection with unemployment compensation is protection of the disadvantaged person. To deny him physical sustenance because he will not affront his religious convictions would scarcely be considered social legislation. Cf. Barnett v. Rodgers, D.C.Cir., 1969, 133 U.S.App.D.C. 296, 410 F.2d 995. In the present case the interests are not merely that of the plaintiff versus the cost to the fisc; opposed to plaintiff’s interest are both the public and private interests in collective bargaining and industrial peace. Furthermore, plaintiff’s burden is not as severe as was Sherbert’s. Her alternative is not absolute destitution. The cost to her is being forced to take employment in a nonunion ship — here, less remunerative employment. We conclude that in weighing the burden which falls upon the plaintiff if she would avoid offending her religious convictions, as against the affront which sustaining her position would offer to the congressionally supported principle of the union shop, it is plaintiff who must suffer. We agree with the Fifth Circuit. Gray v. Gulf, Mobile & Ohio RR., n. 1, ante; cf. Cap Santa Vue, Inc. v. N.L.R.B., D.C.Cir., 1970, 424 F.2d 883. Affirmed. . See Gray v. Gulf, Mobile & Ohio R. R., 5 Cir., 1970, 429 F.2d 1064, 1066 n. 4, cert. denied 400 U.S. 1001, 91 S.Ct. 461, 27 L.Ed.2d 451. . In his concurring opinion Judge Coffin seems to us to neglect the fact that Congress was something more than silent, and that the UMRA’s recognition of the union shop, to the extent not limited by virtue of the permission granted by section 14(b), constitutes governmental endorsement in an area in which Congress makes the rules. When that endorsement is not curtailed in a particular state, it seems no less wlmt he terms “but for” support than is the union shop provision in the Railway Labor Act. Secondly, Judge Coffin’s claim that we are going beyond Shelley v. Kraemer [334 U.S. 1, 68 S.Ct. 836. 92 L.Ed. 1161] in finding “government action” before there is court enforcement of a private agreement overlooks the fact that Hanson has crossed that bridge. Sufficient potential is furnished by government approval even though it may ultimately be dissipated by a court’s refusal to act. . It is for these reasons, among others, that we cannot accept plaintiff’s argument that because in the total labor force there are so relatively few who share her views the matter is de minimis. We can take ready notice of the disruptive effects of union members being required to share their achievements, and their work, with non-union workers. The impact is substantially different from the minor accommodation that would be required in Dewey v. Reynolds Metals Co., 6 Cir., 1970, 429 F.2d 324, cert. granted 400 U.S. 1008, 91 S.Ct. 566, 27 L.Ed.2d 621. . This decision makes it unnecessary to meet the contention advanced by defendants that plaintiff is precluded from main-taming this action. Defendants’ assertion that the administrative prerequisites of a suit based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, must be exhausted whenever the suit could have been brought under Title VII, is supported by almost none of the cases cited. It at least seems certain that other, though equivalent, remedies were meant to survive the passage of this equal employment legislation. See, e. g., Waters v. Wisconsin Steel Works of Int’l Harvester Co., 7 Cir., 1970, 427 F.2d 476, cert. denied International Harvester Co. v. Waters, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (discriminatory employment action based on 42 U.S.C. § 1981 still exists); United Packinghouse, Food & Allied Workers Int’l Union, AFL-CIO v. N.L.R.B., 1969, 135 U.S.App.D.C. 111, 416 F.2d 1126, 1133 n. 11, cert. denied Farmers’ Cooperative Compress v. United Packinghouse, 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179 (concurrent NLRB jurisdiction in this area remains). We doubt that we could, without specific indication from Congress, demand prior resort to the administrative part of the Title VII action before such independent actions may be brought. 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:
sc_adminaction	117	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to 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. DIAMOND NATIONAL CORP. et al. v. STATE BOARD OF EQUALIZATION No. 75-1038. Decided April 19, 1976 Per Curiam. The judgment is reversed. We are not bound by the California court’s contrary conclusion and hold that the incidence of the state and local sales taxes falls upon the national bank as purchaser and not upon the vendors. The national bank is therefore exempt from the taxes under former 12 U. S. C. § 548 (1964 ed.), which was in effect at the time here pertinent. First Agricultural Nat. Bank v. Tax Comm’n, 392 U. S. 339, 346-348 (1968). Reversed. Question: What is the agency involved in the administrative action? 001. Army and Air Force Exchange Service 002. Atomic Energy Commission 003. Secretary or administrative unit or personnel of the U.S. Air Force 004. Department or Secretary of Agriculture 005. Alien Property Custodian 006. Secretary or administrative unit or personnel of the U.S. Army 007. Board of Immigration Appeals 008. Bureau of Indian Affairs 009. Bureau of Prisons 010. Bonneville Power Administration 011. Benefits Review Board 012. Civil Aeronautics Board 013. Bureau of the Census 014. Central Intelligence Agency 015. Commodity Futures Trading Commission 016. Department or Secretary of Commerce 017. Comptroller of Currency 018. Consumer Product Safety Commission 019. Civil Rights Commission 020. Civil Service Commission, U.S. 021. Customs Service or Commissioner or Collector of Customs 022. Defense Base Closure and REalignment Commission 023. Drug Enforcement Agency 024. Department or Secretary of Defense (and Department or Secretary of War) 025. Department or Secretary of Energy 026. Department or Secretary of the Interior 027. Department of Justice or Attorney General 028. Department or Secretary of State 029. Department or Secretary of Transportation 030. Department or Secretary of Education 031. U.S. Employees' Compensation Commission, or Commissioner 032. Equal Employment Opportunity Commission 033. Environmental Protection Agency or Administrator 034. Federal Aviation Agency or Administration 035. Federal Bureau of Investigation or Director 036. Federal Bureau of Prisons 037. Farm Credit Administration 038. Federal Communications Commission (including a predecessor, Federal Radio Commission) 039. Federal Credit Union Administration 040. Food and Drug Administration 041. Federal Deposit Insurance Corporation 042. Federal Energy Administration 043. Federal Election Commission 044. Federal Energy Regulatory Commission 045. Federal Housing Administration 046. Federal Home Loan Bank Board 047. Federal Labor Relations Authority 048. Federal Maritime Board 049. Federal Maritime Commission 050. Farmers Home Administration 051. Federal Parole Board 052. Federal Power Commission 053. Federal Railroad Administration 054. Federal Reserve Board of Governors 055. Federal Reserve System 056. Federal Savings and Loan Insurance Corporation 057. Federal Trade Commission 058. Federal Works Administration, or Administrator 059. General Accounting Office 060. Comptroller General 061. General Services Administration 062. Department or Secretary of Health, Education and Welfare 063. Department or Secretary of Health and Human Services 064. Department or Secretary of Housing and Urban Development 065. Administrative agency established under an interstate compact (except for the MTC) 066. Interstate Commerce Commission 067. Indian Claims Commission 068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 069. Internal Revenue Service, Collector, Commissioner, or District Director of 070. Information Security Oversight Office 071. Department or Secretary of Labor 072. Loyalty Review Board 073. Legal Services Corporation 074. Merit Systems Protection Board 075. Multistate Tax Commission 076. National Aeronautics and Space Administration 077. Secretary or administrative unit or personnel of the U.S. Navy 078. National Credit Union Administration 079. National Endowment for the Arts 080. National Enforcement Commission 081. National Highway Traffic Safety Administration 082. National Labor Relations Board, or regional office or officer 083. National Mediation Board 084. National Railroad Adjustment Board 085. Nuclear Regulatory Commission 086. National Security Agency 087. Office of Economic Opportunity 088. Office of Management and Budget 089. Office of Price Administration, or Price Administrator 090. Office of Personnel Management 091. Occupational Safety and Health Administration 092. Occupational Safety and Health Review Commission 093. Office of Workers' Compensation Programs 094. Patent Office, or Commissioner of, or Board of Appeals of 095. Pay Board (established under the Economic Stabilization Act of 1970) 096. Pension Benefit Guaranty Corporation 097. U.S. Public Health Service 098. Postal Rate Commission 099. Provider Reimbursement Review Board 100. Renegotiation Board 101. Railroad Adjustment Board 102. Railroad Retirement Board 103. Subversive Activities Control Board 104. Small Business Administration 105. Securities and Exchange Commission 106. Social Security Administration or Commissioner 107. Selective Service System 108. Department or Secretary of the Treasury 109. Tennessee Valley Authority 110. United States Forest Service 111. United States Parole Commission 112. Postal Service and Post Office, or Postmaster General, or Postmaster 113. United States Sentencing Commission 114. Veterans' Administration or Board of Veterans' Appeals 115. War Production Board 116. Wage Stabilization Board 117. State Agency 118. Unidentifiable 119. Office of Thrift Supervision 120. Department of Homeland Security 121. Board of General Appraisers 122. Board of Tax Appeals 123. General Land Office or Commissioners 124. NO Admin Action 125. Processing Tax Board of Review Answer:
sc_jurisdiction	B	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. FREEMAN, TRUSTEE, v. HEWIT, DIRECTOR OF GROSS INCOME TAX DIVISION. No. 3. Argued November 8, 1944. Reargued October 14, 1946.— Decided December 16, 1946. Gath P. Freeman argued the cause for appellant and filed a brief on the original argument, and also filed a brief on the reargument. Harry T. Ice reargued the cause and filed a brief for appellant. Winslow Van Horne, Deputy Attorney General of Indiana, argued the cause on the original argument for ap-pellee. With him on the brief were James A. Emmert, Attorney General, John J. McShane, Deputy Attorney General, Robert Hollowell, Jr., Cleon H. Foust, John H. Fetterhoff and Fred C. McClurg. John J. McShane, Deputy Attorney General, reargued the cause for appellee. With him on the brief were James A. Emmert, Attorney General, John H. Fetterhoff and Fred C. McClurg, Deputy Attorneys General. Mr. Justice Frankfurter delivered the opinion of the Court. This case presents another phase of the Indiana Gross Income Tax Act of 1933, which has been before this Court in a series of cases beginning with Adams Mfg. Co. v. Storen, 304 U. S. 307. The Act imposes a tax upon “the receipt of the entire gross income” of residents and dom-iciliaries of Indiana but excepts from its scope “such gross income as is derived from business conducted in commerce between this state and other states of the United States ... to the extent to which the State of Indiana is prohibited from taxing such gross income by the Constitution of the United States.” Indiana Laws 1933, pp. 388, 392, as amended, Laws 1937, pp. 611, 615, Burns’ Ind. Stat. Anno. § 64-2601 et seg. Appellant’s predecessor, domiciled in Indiana, was trustee of an estate created by the will of a decedent domiciled in Indiana at the time of his death. During 1940, the trustee instructed his Indiana broker to arrange for the sale at stated prices of securities forming part of the trust estate. Through the broker’s New York correspondents the securities were offered for sale on the New York Stock Exchange. When a purchaser was found, the New York brokers notified the Indiana broker who in turn informed the trustee, and the latter brought the securities to his broker for mailing to New York. Upon their delivery to the purchasers, the New York brokers received the purchase price, which, after deducting expenses and commission, they transmitted to the Indiana broker. The latter delivered the proceeds less his commission to the trustee. On the gross receipts of these sales, amounting to $65,214.20, Indiana, under the Act of 1933, imposed a tax of 1%. Having paid the tax under protest, the trustee brought this suit for its recovery. The Supreme Court of Indiana, reversing a court of first instance, sustained the tax on the ground that the situs of the securities was in Indiana. 221 Ind. 675, 51 N. E. 2d 6. The case is here on appeal under § 237 (a) of the Judicial Code, 28 U. S. C. § 344 (a), and has had the consideration which two arguments afford. The power of the States to tax and the limitations upon that power imposed by the Commerce Clause have necessitated a long, continuous process of judicial adjustment. The need for such adjustment is inherent in a federal government like ours, where the same transaction has aspects that may concern the interests and involve the authority of both the central government and the constituent States. The history of this problem is spread over hundreds of volumes of our Reports. To attempt to harmonize all that has been said in the past would neither clarify what has gone before nor guide the future. Suffice it to say that especially in this field opinions must be read in the setting of the particular cases and as the product of preoccupation with their special facts. Our starting point is clear. In two recent cases we applied the principle that the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States. In short, the Commerce Clause even without implementing legislation by Congress is a limitation upon the power of the States. Southern Pacific Co. v. Arizona, 325 U. S. 761; Morgan v. Virginia, 328 U. S. 373. In so deciding we reaffirmed, upon fullest consideration, the course of adjudication unbroken through the Nation’s history. This limitation on State power, as the Morgan case so well illustrates, does not merely forbid a State to single out interstate commerce for hostile action. A State is also precluded from taking any action which may fairly be deemed to have the effect of impeding the free flow of trade between States. It is immaterial that local commerce is subjected to a similar encumbrance. It may commend itself to a State to encourage a pastoral instead of an industrial society. That is its concern and its privilege. But to compare a State’s treatment of its local trade with the exertion of its authority against commerce in the national domain is to compare incomparables. These principles of limitation on State power apply to all State policy no matter what State interest gives rise to its legislation. A burden on interstate commerce is none the lighter and no less objectionable because it is imposed by a State.under the taxing power rather than under manifestations of police power in the conventional sense. But, in the necessary accommodation between local needs and the overriding requirement of freedom for the national commerce, the incidence of a particular type of State action may throw the balance in support of the local need because interference with the national interest is remote or unsubstantial. A police regulation of local aspects of interstate commerce is a power often essential to a State in safeguarding vital local interests. At least until Congress chooses to enact a nation-wide rule, the power will not be denied to the State. The Minnesota Rate Cases, 230 U. S. 352, 402 et seq.; S. C. Hwy. Dept. v. Barnwell Bros., 303 U. S. 177; Union Brokerage Co. v. Jensen, 322 U. S. 202, 209-12. State taxation falling on interstate commerce, on the other hand, can only be justified as designed to make such commerce bear a fair share of the cost of the local government whose protection it enjoys. But revenue serves as well no matter what its source. To deny to a State a particular source of income because it taxes the very process of interstate commerce does not impose a crippling limitation on a State’s ability to carry on its local function. Moreover, the burden on interstate commerce involved in a direct tax upon it is inherently greater, certainly less uncertain in its consequences, than results from the usual police regulations. The power to tax is a dominant power over commerce. Because the greater or more threatening burden of a direct tax on commerce is coupled with the lesser need to a State of a particular source of revenue, attempts at such taxation have always been more carefully scrutinized and more consistently resisted than police power regulations of aspects of such commerce. The task of scrutinizing is a task of drawing lines. This is the historic duty of the Court so long as Congress does not undertake to make specific arrangements between the National Government and the States in regard to revenues from interstate commerce. See Act of July 3, 1944, 58 Stat. 723; H. Doc. 141, 79th Cong., 1st Sess., “Multiple Taxation of Air Commerce”; and compare 54 Stat. 1059, 4 U. S. C. § 13 et seq. (permission to States to extend taxing power to Federal areas). Considerations of proximity and degree are here, as so often in the law, decisive. It has been suggested that such a tax is valid when a similar tax is placed on local trade, and a specious appearance of fairness is sought to be imparted by the argument that interstate commerce should not be favored at the expense of local trade. So to argue is to disregard the life of the Commerce Clause. Of course a State is not required to give active advantage to interstate trade. But it cannot aim to control that trade even though it desires to control its own. It cannot justify what amounts to a levy upon the very process of commerce ■ across States lines by pointing to a similar hobble on its local trade. It is true that the existence of a tax on its local commerce detracts from the deterrent effect of a tax on interstate commerce to the extent that it removes the temptation to sell the goods locally. But the fact of such a tax, in any event, puts impediments upon the currents of commerce across the State line, while the aim of the Commerce Clause was precisely to prevent States from exacting toll from those engaged in national commerce. The Commerce Clause does not involve an exercise in the logic of empty categories. It operates within the framework of our federal scheme and with due regard to the national experience reflected by the decisions of this Court, even though the terms in which these decisions have been cast may have varied. Language alters, and there is a fashion in judicial writing as in other things. This case, like Adams Mfg. Co. v. Storen, supra, involves a tax imposed by the State of the seller on the proceeds of interstate sales. To extract a fair tithe from interstate commerce for the local protection afforded to it, a seller State need not impose the kind of tax which Indiana here levied. As a practical matter, it can make such commerce pay its way, as the phrase runs, apart from taxing the very sale. Thus, it can tax local manufacture even if the products are destined for other States. For some purposes, manufacture and the shipment of its products beyond a State may be looked upon as an integral transaction. But when accommodation must be made between state and national interests, manufacture within a State, though destined for shipment outside, is not a seamless web so as to prevent a State from giving the manufacturing part detached relevance for purposes of local taxation. American Mfg. Co. v. St. Louis, 250 U. S. 459; Utah Power & L. Co. v. Pfost, 286 U. S. 165. It can impose license taxes on domestic and foreign corporations who would do business in the State, Cheney Brothers Co. v. Massachusetts, 246 U. S. 147; St. Louis S. W. Ry. v. Arkansas, 235 U. S. 350, 364, though it cannot, even under the guise of such excises, “hamper” interstate commerce. Western Union Tel. Co. v. Kansas, 216 U. S. 1; Pullman Co. v. Kansas, 216 U. S. 56 (particularly White, J. concurring at p. 63); Henderson, The Position of Foreign Corporations in American Constitutional Law (1918) 118-23, 128-31. It can tax the privilege of residence in the State and measure the privilege by net income, including that derived from interstate commerce. U. S. Glue Co. v. Oak Creek, 247 U. S. 321; cf. Atlantic Coast Line v. Daughton, 262 U. S. 413. And where, as in this case, the commodities subsequently sold interstate are securities, they can be reached by a property tax by the State of domicil of the owner. Virginia v. Imperial Sales Co., 293 U. S. 15, 19; and see Citizens National Bank v. Durr, 257 U. S. 99. These illustrative instances show that a seller State has various means of obtaining legitimate contribution to the costs of its government, without imposing a direct tax on interstate sales. While these permitted taxes may, in an ultimate sense, come out of interstate commerce, they are not, as would be a tax on gross receipts, a direct imposition on that very freedom of commercial flow which for more than a hundred and fifty years has been the ward of the Commerce Clause. It is suggested, however, that the validity of a gross sales tax should depend on whether another State has also sought to impose its burden on the transactions. If another State has taxed the same interstate transaction, the burdensome consequences to interstate trade arq undeniable. But that, for the time being, only one State has taxed is irrelevant to the kind of freedom of trade which the Commerce Clause generated. The immunities implicit in the Commerce Clause and the potential taxing power of a State can hardly be made to depend, in the world of practical affairs, on the shifting incidence of the varying tax laws of the various States at a particular moment. Courts are not possessed of instruments of determination so delicate as to enable them to weigh the various factors in a complicated economic setting which, as to an isolated application of a State tax, might mitigate the obvious burden generally created by a direct tax on commerce. Nor is there any warrant in the constitutional principles heretofore applied by this Court to support the notion that a State may be allowed one single-tax-worth of direct interference with the free flow of commerce. An exaction by a State from interstate commerce falls not because of a proven increase in the cost of the product. What makes the tax invalid is the fact that there is interference by a State with the freedom of interstate commerce. Such a tax by the seller State alone must be judged burdensome in the context of the circumstances in which the tax takes effect. Trade being a sensitive plant, a direct tax upon it to some extent at least deters trade even if its effect is not precisely calculable. Many States, for instance, impose taxes on the consumption of goods, and such taxes have been sustained regardless of the extra-State origin of the goods, or whether a tax on their sale had been imposed by the seller State. Such potential taxation by consumer States is but one factor pointing to the deterrent effect on commerce by a superimposed gross receipts tax. It has been urged that the force of the decision in the Adams case has been sapped by McGoldrick v. Berwind-White Co., 309 U. S. 33. The decision in McGoldrick v. Berwind-White was found not to impinge upon “the rationale of the Adams Manufacturing Co. ease,” and the tax was sustained because it was “conditioned upon a local activity, delivery of goods within the state upon their purchase for consumption.” 309 U. S. at 58. Compare McLeod v. Dilworth Co., 322 U. S. 327. Taxes which have the same effect as consumption taxes are properly differentiated from a direct imposition on interstate commerce, such as was before the Court in the Adams case and is now before us. The tax on the sale itself cannot be differentiated from a direct unapportioned tax on gross receipts which has been definitely held beyond the State taxing power ever since Fargo v. Michigan, 121 U. S. 230, and Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326. See also, e. g., Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217; Kansas City, Ft. S. & M. R. Co. v. Kansas, 240 U. S. 227, 231; Puget Sound Co. v. Tax Commission, 302 U. S. 90, 94; and compare Wallace v. Hines, 253 U. S. 66. For not even an “internal regulation” by a State will be allowed if it directly affects interstate commerce. Robbins v. Shelby Taxing District, 120 U. S. 489, 494. Nor is American Mfg. Co. v. St. Louis, 250 U. S. 459, or Harvester Co. v. Dept. of Treasury, 322 U. S. 340, any justification for the present tax. The American Mfg. Co. case involved an imposition by St. Louis of a license fee upon the conduct of manufacturing within that city. It has long been settled that a State can levy such an occupation tax graduated according to the volume of manufacture. In that case, to lighten the manufacturer’s burden, the imposition of the occupation tax was made contingent upon the actual sale of the goods locally manufactured. Sales in St. Louis of goods made elsewhere were not taken into account in measuring the license fee. That tax, then, unlike this, was not in fact a tax on gross receipts. Cf. Cornell v. Coyne, 192 U. S. 418. And, if words are to correspond to things, the tax now here is not “a tax on the transfer of property” within the State, which was the basis for sustaining the tax in Harvester Co. v. Dept. of Treasury, supra, at 348. There remains only the claim that an interstate sale of intangibles differs from an interstate sale of tangibles in respects material to the issue in this case. It was by this distinction that the Supreme Court of Indiana sought to escape the authority of Adams Mfg. Co. v. Storen, supra. Latin tags like mobilia seguuntur personam often do service for legal analysis, but they ought not to confound constitutional issues. What Mr. Justice Holmes said about that phrase is relevant here. “It is a fiction, the historical origin of which is familiar to scholars, and it is this fiction that gives whatever meaning it has to the saying mobilia sequuntur personam. But being a fiction it is not allowed to obscure the facts, when the facts become important.” Blackstone v. Miller, 188 U. S. 189, 204. Of course this is an interstate sale. And constitutionally it is commerce no less and no different because the subject was pieces of paper worth $65,214.20, rather than machines. Reversed. Mr. Justice Black dissents. Compare Report of the (Australian) Royal Commission on the Constitution (1929) pp. 260, 322-24, and Report of the (Canadian) Royal Commission on Dominion-Provincial Relations (1940), bk. II, pp. 62-67, 111-21, 150-62, 216-19. See Australia, Act No. 1, 1946, repealing Act No. 20, 1942, and Act No. 43, 1942; South Australia v. Commonwealth, 65 C. L. R. 373; also Proposals of the Government of Canada, Dominion-Provincial Conference on Reconstruction, pp. 47-49; Proceedings of the Dominion-Provincial Conference (1945) passim, particularly the statement of Prime Minister Mackenzie King, p. 388, and the discussion following. And see Maxwell, The Fiscal Impact of Federalism in the United States (1946) cc. II, XIII, XIV. 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_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. Vincent SCHENA, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 80-1191. United States Court of Appeals, First Circuit. Argued Sept. 9, 1980. Decided Dec. 2, 1980. Carolynn N. Fischel, Boston, Mass., with whom Petkun & Locke, Inc., Boston, Mass., was on brief, for appellant. Paul E. Troy, Asst. U.S. Atty., Boston, Mass., with whom Edward F. Harrington, U.S. Atty., Boston, Mass., was on brief, for appellee. Before COFFIN, Chief Judge, BOWNES, Circuit Judge, WYZANSKI, Senior District Judge. Of the District of Massachusetts, sitting by designation. BOWNES, Circuit Judge. Plaintiff-appellant Vincent Schena appeals an order of the district court granting the motion of the Secretary of Health, Education and Welfare (Secretary) for summary judgment and dismissal. The issues are whether the district court erred in finding substantial evidence to support the Secretary’s decision that the claimant was- hot disabled after December 6, 1974, and whether the Secretary’s determination that Schena’s refusal to have a spinal fusion operation was unreasonable is supported by substantial evidence in the record. I. The Facts Schena suffered a ruptured lumbar disc in an accident on a construction site, and was determined to be disabled within the meaning of 42 U.S.C. § 423(d) from May 22, 1973, to December 6, 1974. He claims that he is entitled to disability benefits through the time he returned to work in March, 1978. Schena’s benefits were initially terminated because of his alleged willful refusal to undergo spinal surgery. The Secretary, after reconsideration, determined that this decision was proper. Schena then asked for a hearing before an administrative law judge (ALJ) which was held on December 1,1976. The ALJ affirmed the reconsideration decision, finding that Schena “no longer met the definition of disability . . . both due to his failure to follow a prescribed course of treatment and also because he then [after December 6, 1974] had the capacity to perform sedentary work.” The Appeals Council affirmed the decision of the ALJ on October 3, 1977. The case was next before the district court. Determining that there was substantial evidence to support the finding that Schena could perform sedentary work in a substantial gainful activity, the court granted the Secretary’s motion for summary judgment. This appeal followed. II. A. Whether substantial evidence supports the denial of disability benefits after December 6, 1974, on the basis of Sche-na’s capacity to engage in a substantial gainful activity. Schena’s first claim is that substantial evidence does not support the Secretary’s decision that he could engage in a substantial gainful activity after December 6, 1974, and was, therefore, not disabled after that date. We find that the record fails to establish whether Schena could perform sedentary work, given his physical limitations, in the period between December 6, 1974 (when he was determined to be no longer disabled), and December 1, 1976 (the date of the hearing). It must be reiterated that Schena’s benefits were first terminated not because of a finding that he was able to work, but on the grounds that he had willfully failed to undergo prescribed surgery. Substantial evidence only supports a finding that at the time of hearing, Schena could do sedentary work of a nature to enable him to engage in a substantial gainful activity. But the evidence cannot substantiate a finding that Schena was capable of such work for the two years previous. Rather, a specific inquiry with respect to that time period has to be made. In reviewing the finding of substantial evidence that Schena could perform sedentary tasks in a substantial gainful activity, at least as of December 1, 1976, we note first the testimony of the vocational expert. He stated that work existed in the economy for a person of Schena’s age, education and job experience, for someone who was able to stand for fifteen minutes at a time, walk for two blocks, sit with the opportunity to shift position, and lift ten pounds from a table though unable to stoop or bend. Schena, the vocational expert testified, could work as a self-service parking lot attendant, self-service gasoline station attendant, bench assembly worker or daytime shopping center security officer. Neither Schena nor his counsel suggested that he was unfit for such employment. Counsel only inquired as to whether the jobs took account of his client’s requirements for warm weather; the vocational expert responded that Schena could reasonably expect that he would be shielded from inclement weather while performing such work. Although we find that there was substantial evidence that Schena could work at the time of the hearing, we disagree with the district court’s view that claimant’s responses about his fitness to work bolster the conclusion of the AU. Although Schena’s testimony was not always clear, we think it was a mistake to equate his expressions of willingness to try to work with capacity to work. B. Whether the Secretary erred in determining that Schena’s refusal to have spinal surgery barred a finding of disability. Because the district court found substantial evidence that Schena could work, it did not reach the other basis for the Secretary’s denial of benefits-the claimant’s alleged willful refusal to have back surgery “was not shown to be medically justifiable.” That basis would serve as an independent ground for sustaining the Secretary’s decision, even if it were determined on remand that Schena could not perform substantial gainful activity for the period in question. For the reasons discussed below, however, we reverse the Secretary’s decision barring Schena’s disability benefits because of his rejection of a spinal operation. Thus, on remand, if it is determined that Schena could not undertake substantial gainful activity between December 6, 1974, and December 1,1976, he must be awarded disability benefits for that time interval. The pertinent regulation with respect to the denial of benefits for willful failure to follow treatment states: 20 C.F.R. § 404.1507 (1976). Thus a claimant’s disability benefits cannot be terminated unless it is determined that: An individual with a disabling impairment which is amenable to treatment to restore his ability to work shall be deemed to be under a disability if he is undergoing therapy prescribed by his treatment sources but his impairment has nevertheless continued to be disabling or can be expected to be disabling for at least 12 months. However, an individual who willfully fails to follow such prescribed treatment cannot by virtue of such failure be found to be under a disability. Willful failure does not exist if there is justifiable cause for failure to follow such treatment. (1) The impairment must have been amenable to treatment .. . [that could be expected] to restore the claimant’s ability to work .... (2) The treatment must have been prescribed. (3) The treatment must have been refused. (4) The refusal must have been willful; willfullness [sic] does not exist where there is a justifiable excuse for the refusal. Smith v. Weinberger, 394 F.Supp. 1002, 1008 (D.Md. 1975). In the case at hand, the ALJ failed to develop the facts necessary to sustain his findings. He did not explicitly determine that the rejected back surgery could be expected to restore Schena’s ability to work. The medical reports upon which the AU relied suggest that surgery would improve the claimant’s condition, but did not deal with the question of whether the treatment “could be expected to restore his ability to work.” Further, the denial of benefits because of Schena’s alleged “willful refusal to follow a recommended course of treatment” (emphasis added) disregards the language of the regulation which specifically speaks in terms of the willful failure to follow “prescribed” treatment. That various physicians suggested the operation does not necessarily mean that they prescribed it. Schena’s physician, though suggesting an operation, stated in his report that he did not “urge him to undergo surgery which he is fundamentally opposed to” and noted in an earlier letter that since the patient “wishes to try physical therapy, I have no objection and he is going to continue with this for a relatively indefinite period if he wishes to do so.” In any case, it is not the “claimant’s burden to undergo any and all surgical procedures suggested by [his or] her physician lest [he or] she is barred from disability benefits.” McCarty v. Richardson, 459 F.2d 3, 4 (5th Cir. 1972). “In determining whether a claimant’s refusal to undergo treatment is reasonable-i. e. supported by justifiable cause under 20 C.F.R. § 404.1507-several factors must be considered.” Nichols v. Califano, 556 F.2d 931, 933 (9th Cir. 1977). Certainly, an assessment should be made in light of such variables as the risks involved, the likelihood of success, the consequences of failure and the availability of alternative treatment. “A patient may be acting reasonably in refusing surgery that is painful or dangerous.” Id. at 933. A patient’s refusal to submit to an operation when the surgeon suggesting the surgery “considered the attitude of the patient a reasonable one, cannot be held to be a refusal to cooperate in remedial treatment.” Ratliff v. Celebrezze, 338 F.2d 978 (6th Cir. 1964). A reasonable fear may justify the refusal of treatment. See Martin v. Ribicoff, 195 F.Supp. 761, 772 (E.D. Tenn. 1961). We cannot accept the ALJ’s conclusion that Schena’s refusal to submit to surgery was unsupported by justifiable cause. Schena testified that none of the .physicians provided percentages indicating the likelihood of success. He stated that he was wary of surgery because several of his relatives had undergone such operations, but were worse off than before. One of the specialists who recommended an operation noted in his report that Schena refused surgery “since the other man injured in the same accident became paralyzed in the lower extremities and remained so in spite of having surgery in ’ order to help him.” Schena’s treating physician supported surgery but stated that “it is certainly reasonable to refuse this sort of treatment if one is particularly upset by the thought of it.” He sanctioned alternative treatment, and the record shows that Schena underwent extensive physical therapy and wore a back brace. Cf. Blankenship v. Califano, 598 F.2d 1041, 1045 (6th Cir. 1975) (significant that appellant willing to undergo alternative treatment involving considerable pain). In view of all this, Schena’s decision to refuse surgery and to choose alternative treatment was not unreasonable. “It is common knowledge that spinal surgery is often dangerous and entails much pain and suffering.” Ratliff v. Celebrezze, 338 F.2d at 981. In reviewing this case, we are moved to ask as did the Sixth Circuit in a similar context: “What kind of surgical operation entailing what danger to life, and pain, must an applicant undergo at the behest of a surgeon who does not suggest any certainty of cure or remedy?” Id. at 981. Given the uncertain (and sometimes adverse) consequences of spinal surgery, we have difficulty faulting Schena for choosing other treatment. The fact that he has returned to work suggests that his decision to pursue another mode of treatment was appropriate. Finally, we note that the Social Security Act was intended “to ameliorate some of the rigors that life imposes.” Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965). It was a commitment by the nation to serve the individual needs of its people. The perfunctory determination of the- Secretary here, the apparent disregard for the concerns that moved Schena to reject back surgery are at odds with the underlying premises of the Act. Accordingly, we reverse the Secretary’s decision that Schena’s rejection of spinal surgery barred him from disability benefits under 20 C.F.R. § 404.1507. We reverse in part the decision of the district court, and remand to the Secretary to determine whether the claimant could engage in “any substantial gainful activity” from December 6, 1974, to December 1, 1976. . All that the ALJ found was that claimant “has sufficient functional capacity to engage in sedentary work,” not that from December 6, 1974, to December 1, 1976, he had such capacity (emphasis added). . The court’s view was based on the following exchanges between the ALJ and Schena: AU: Tell me in your own words why you couldn’t work right now? Schena: (Inaudible) I can’t work-what kind of work. Q: Could you do your work back there with the construction company right now? A: I don’t think my- Q: How about if you had an easier job? .... A: I could try it. . . . The identical regulation is now found at 20 C.F.R. § 404.1518. 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_respond1_1_3	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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. STOVALL v. BURNS & ROE, Inc. No. 5289. Circuit Court of Appeals, Fourth Circuit. Oct. 17, 1944. Louis B. Fine, of Norfolk, Va., for appellant. Walkley E. Johnson, Asst. U. S. Atty., of Newport News, Va. (Harry FT. Holt, Jr., U. S. Atty., and C. J. Collins, Sp. Asst, to the U. S. Atty., both of Norfolk, Va., on the brief), for appellee. Before PARKER, SOPER, and NORTHCOTT, Circuit Judges. PER CURIAM. This is an appeal from a judgment for defendant in an action to recover damages for libel. The libel was alleged to consist in the designation of plaintiff as a “striker” on the discharge slip filed when he was discharged with others for the part that he had taken in quitting work and joining them in asking the management for an increase of wages. The case was tried before a jury and no exceptions were taken to the testimony or to the charge of the court, which submitted to the jury questions as to the truth of the alleged libelous language and as to the privilege asserted by defendant as his employer. After the jury had considered the case for some time, it returned to the court room and requested additional instructions as to the burden of proof. The court gave these instructions to which no exception was taken. One of the jurors volunteered that the judge could help the jury if he would define “striker” for them. The judge explained that whether plaintiff was to be considered a “striker” or not was a question of fact to be determined by the jury. Counsel for plaintiff then moved the court to instruct the jury, as a matter of law, that the plaintiff had not engaged in a strike. The court declined to do this, and plaintiff entered the only exception in the entire trial that is called to our attention. All of the questions in the case were fully and fairly submitted to the jury, without intimation from the judge as to how they should be decided; and it is to be noted that the plaintiff was quite willing to submit the question as to wdiether he was a striker or not as a question of fact under the general charge, until the remark of the juror above noted. Whether the plaintiff was entitled to such an instruction or not, we need not decide, since we cannot say upon the record that the refusal of the judge to give it was prejudicial error. Even if the jury had been told that what was done did not technically constitute a strike, it would not follow that the statement complained of was libelous, since the employer might reasonably have regarded plaintiff as a striker and so described him in an interdepartmental communication, which would be privileged if made in good faith. The questions bearing upon the defense of privilege were properly submitted to the jury in the charge of the court to which no exception was taken, and we do not think that the requested charge would have affected the result. The verdict impresses us as being correct and as being what could be expected if the case were again tried. Affirmed. 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_genresp2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. ASSOCIATION OF CLERICAL EMPLOYEES OF ATCHISON, T. & S. F. RY. SYSTEM et al. v. BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS et al. No. 5837. Circuit Court of Appeals, Seventh Circuit. July 8, 1936. James E. Smith, E. H. Hatcher, and Frank H. McFarland, all of Topeka, Kan., for appellants. Emmet Trainor and Homer W. Davis, both of Chicago, Ill. (Charles H. Woods, of Chicago, Ill., of counsel), for Railway Companies. Frank L. Mulholland, of Toledo, Ohio, and Leo J. Hassenauer, of Chicago, Ill., for appellees, Brotherhood and others. John Dickinson, Asst. Atty. Gen., Leo F. Tierney and Wendell Berge, Sp. Assts. to the Atty. Gen., Robert L. Stern, Sp. Atty., Department of Justice, of Washington, D. C., and Harry N. Connaughton and Earle C. Hurley, Sp. Assts. to U. S. Dist. Atty., both of Chicago, Ill., for appellee Michael L. Igoe. Before SPARKS and ALSCHULER, Circuit Judges, and LINDLEY, District Judge. ALSCHULER, Circuit Judge. Appellants complain of the rulings of the District Court denying their motion for a temporary injunction, and on motion dismissing the bill. The bill challenges the certification oi the National Mediation Board (herein called Board) that at an election called by the Board, under the Federal Railway Labor Act as amended (45 U.S.C.A. § 151 et seq.), appellee Brotherhood was chosen to represent the clerical employees of the Atchison, Topeka & Santa Fé Railway System in negotiations with their employer for agreements for wages and conditions of labor for that craft. The bill having been on motion dismissed for want of equity, it must be looked to for the facts. It charges that ever since 1927 that craft was represented in all such negotiations by appellant Association (herein called Association), it having been duly chosen therefor by the craft; that the Brotherhood had represented to the Board that a majority of the craft favored the Brotherhood’s acting in such capacity for the craft; and that the Board, finding that a dispute existed with reference to the representation, called and conducted an election of the craft to determine whom the craft favored for such representative; and that the Board found and certified that a majority of the craft were favorable to the Brotherhood, and made such certification to the craft and to the employer. Under the Railway Labor Act of 1926, as amended June 21, 1934, such finding by the Board, unless and until in some way set aside or abrogated, is binding upon the members of the craft. The bill further charges that the certification by the Board specifies as follows: Number of employees on the list of eligible voters ...................6,016 Number voting for representation by the Brotherhood .................2,854 Number voting for representation by the Association ..................2,793 Number voting for representation by miscellaneous individuals or other organizations .........,........... 6 Number of ballots not allocated: (a) Blank ballots, not voted..... 21 (b) Ballots voted but improperly marked ................. 41; That appellants objected to the votes of 22 employees at the Newton plant, but their votes were allowed and separately counted, showing: For the Brotherhood................ 12 For the Association................ 6 For miscellaneous individuals or for other organizations............... 2 Ballots voted but improperly marked 2 The main contention of appellants is that the vote for the Brotherhood falls short of being a majority of all the members of the craft found qualified to vote, and that therefore the certification by the Board is in contravention of that part of section 2 (Fourth) of the Railway Labor Act as amended (45 U.S.C.A. § 152, subd. 4), which reads: “The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter.” If this part of the act is to be given the construction for which appellants contend, then the Board’s finding — that the Brotherhood was the duly elected representative— was clearly improper, since the number voting for the Brotherhood falls somewhat short of a majority of the entire eligible membership, although in excess of the number voting for representation by the Association. Language more or less similar to that of this statute — fixing the vote required to carry a given measure — has been variously construed by courts. In Missouri there was a constitutional provision that: “The General Assembly shall not authorize any county, city, or town to become a stockholder in, or to loan its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto.” Const.Mo.1865, art. 11, § 14. The General Assembly passed a statute authorizing subscriptions by townships to the capital stock of railroads whenever two-thirds of the qualified voters of the township, voting at an election called for that purpose, shall vote in favor of the proposition. Prior to the decisions in State ex rel. Woodson v. Brassfield, 67 Mo. 331, and Webb v. Lafayette County, 67 Mo. 353, it had been several times held, although no objection of unconstitutionality was raised or considered in these cases, that rights founded upon such statute were enforceable. State v. Linn County Court, 44 Mo. 504; State v. Bates County Court, 57 Mo. 70; State v. Daviess County Court, 64 Mo. 30; and several other cases. But when afterwards- the Woodson and the Webb Cases came before that court, it was decided that the constitutional requirements were not complied with unless two-thirds of all the municipalities’ qualified voters had voted affirmatively, and that the Legislature had no power to pass an act authorizing municipalities to issue their obligations upon a vote of two-thirds of those voting upon the proposition if this was less than two-thirds of all the qualified voters. This same provision of the Missouri Constitution was considered in three cases before the United States Supreme Court. In the first, Harshman v. Bates County, 92 U.S. 569, 23 L.Ed. 747, where it was conceded that such a statute was unconstitutional, the court so held. The second case, and one which has become a leading authority for the proposition therein stated, is County of Cass v. Johnston, 95 U.S. 360, 24 L.Ed. 416. In this there was no concession of unconstitutionality, and upon full consideration of the constitutionality of the Missouri statute (Acts Mo. 1868, p. 92) authorizing the bond issue if voted by two-thirds of those voting upon the proposition, the court reversed its decision in the Harshman Case and upheld the constitutionality of the statute and the validity of the bonds issued under it. A third case thereon is Douglass v. County of Pike, 101 U.S. 677, 25 L.Ed. 968, wherein, in the face of the holding by the Missouri Supreme Court that such statutes were unconstitutional, the court adhered to its decision in County of Cass v. Johnston. Carroll County v. Smith, 111 U.S. 556, 4 S.Ct. 539, 28 L.Ed. 517, dealing with the Mississippi Constitution, was a case almost identical with the Douglass Case, and a like result was there reached. Appellants cite People ex rel. Davenport v. Brown et al., 11 Ill. 478, and appellees cite People ex rel. Mitchell v. Warfield, 20 Ill. 159, 160. The Brown Case was decided under a then constitutional provision that township organization might be adopted upon the favorable vote of a “majority of the voters of such county, at any general election.” At the general election, where more than 600 votes were cast, a total of 260 voted on the county seat proposition, those favoring township organization having the majority of the votes so cast. The court held that, since the Constitution required the proposition to be voted on at a general election, this indicated that the required majority in favor of removal must be of all the votes cast at that election, rather than only the votes on the proposition. In the Warfield Case the question as to the voters required to remove a county seat arose incidentally. The Constitution-specified that the removal might be made on a favorable vote of “a majority of the voters of the county.” At a special election on that proposition a majority of those who voted favored removal, but it was alleged that this was not a majority of all voters of the county, The court, while deciding the case on other grounds, stated that under this provision the favorable vote of a majority who voted at the election would carry the proposition for removal. This case was cited with approval by the United States Supreme Court in County of Cass v. Johnston. In People ex rel. Wheaton v. Wiant, 48 Ill. 263, the court, approving what was stated in the Warfield Case, said that where an election on a proposition for removal of a county seat involved that question alone, a majority of the votes cast thereon will govern regardless of what was the number of voters qualified in the county. Although that case was disposed of on other grounds, on this proposition the' court said: “To give it a different construction, would involve an inquiry, whether there were other voters of the county who had, from any cause, abstained from voting, and this would lead to interminable inquiry, and invite contests in such elections, which would be embarrassing and baneful, if it did not destroy all of the practical benefits of laws passed under these provisions of the constitution." We believe this reasoning might well be applied here, where the statute in question was passed to meet conditions which had at times seriously threatened the interruption of commerce between the states, and to cope with ofttimes extreme exigencies which, unless promptly and effectively met, might seriously disturb the very foundations of orderly and effective government. The Constitution of Indiana (article 16, § 1) provides that amendments to it may be adopted by the affirmative vote of a majority of the members elected to each House at two succeeding General Assemblies, and submission to and ratification by a majority of the "electors of the State." In a number of cases in that state it had been held that this required the affirmative vote of a majority of the electors of the state rather than the majority vote of those voting upon the subject of ratification. State v. Swift, 69 Ind. 505; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; In re Boswell, 179 Ind. 292, 100 N.E. 833. But very recently the Supreme Court of that state again had the question before it, and upon review of prior decisions it decided that a constitutional amendment was duly ratified if it received a majority of those voting upon proposition, although such majority was less than a majority of all the electors of the state. In re Todd, 193 N.E. 865. In the brief operation of the federal statute respecting election of such representatives of crafts since the adoption of the amendment of 1934, the Board had assumed that the vote of the majority of the members of the craft qualified to vote was necessary for the choosing of a representative. But shortly before this matter came before the Board, the United States District Court for the Eastern District of Virginia, Norfolk Division, on July 24, 1935, decided a case in all essential particulars involving the same question as that here under consideration, and on that date filed an exhaustive opinion holding that, under the statute as amended, a majority of the members of the craft, voting at an election called to choose a representative, was sufficient to that end, although such a majority was less in number than a majority of all who were qualified to vote, provided that all those who voted constituted a majority of those qualified to vote. System Federation No. 40, etc., v. Virginia Ry. Co. (D. C.) 11 F.Supp. 621. In passing on the instant controversy the Board stated it was advised that this decision properly interpreted the law which governs, and that it had applied in this case the- principles as laid down by District Judge Way in that opinion. From the decree which followed Judge Way’s opinion an appeal was taken, and under date of June 18, 1936, the Circuit Court of Appeals of the Fourth Circuit, speaking by Judge Parker, filed an opinion (Virginia Ry. Co. v. System Federation No. 40, etc., 84 F.(2d) 641) sustaining the decree of the District Court as to all matters which were in issue on that appeal. The opinion presents full and lucid disposition of the propositions involved. The question of the election of a representative under the statute was the same as it is here, and the vote there presented an identical situation. The conclusion was reached that where a majority of those qualified to vote had in fact voted, a proposed representative receiving a majority of the quorum which thus voted was the duly elected representative under the statute. Upon the question of the vote necessary under the amended statute, we are in full accord with the reasoning and conclusion of the opinion of the Fourth C.C.A., as well as that of District Judge Way. Appellants urge that because the Board had previously held that a proposed representative not receiving a majority of all those who were found qualified to vote was not chosen as a representative under the statute, the Board was equitably bound to apply here the same practice. It is charged that the Board had notified these contestants that the proposed representative receiving the vote of a majority of all the qualified voters of the craft would be the one chosen; and it is argued that in such case a member not voting, in effect votes against any change in existing conditions, wherefore nonvoting members favoring the existing representative might with impunity refrain from voting; and that it would be inequitable to apply a different interpretation of the statute without prior notice by the Board of its change in ruling. It does not appear that the notice to hold the election assumed to make any interpretation of the statute beyond quoting the words of the statute itself. The statute speaks for itself, and when judicially called in question the court must interpret it, regardless of the previous practice of the Board. The Board, though having construed it in a prior instance, is not bound to the same construction if thereafter it becomes satisfied that a different construction should be given. In a case such as this we think the general rule applies that those not voting at an election should be considered as assenting to the will of the majority there expressed. County of Cass v. Johnston, 95 U.S. 360, 24 L.Ed. 416. But the facts do not bear out the allegation. that the qualified voters were prejudiced or misled by the alleged change in the interpretation. As has been seen, Judge Way’s decision was rendered July 24, 1935. It is not reasonable to suppose that those interested in this case were not promptly made aware of that decision, which involved a construction of the same statute under practically the same circumstances, involving the same question of construction and representation by the Board. Certain of appellees’ counsel appeared in both cases. The election here was not called until some time after that opinion had been filed. Pursuant to the notice, the election commenced September 25, 1935, and was concluded on October 18, 1935. Whether voters or counsel for the various parties were in agreement with Judge Way’s views is not material. There was at least a judicial interpretation in a similar controversy which would make more hazardous any reliance upon non-voting as equivalent to a vote to retain the existing representation. Even if the construction which the Board had-given to the statute in conducting some previous election might, under a proper state of facts. have raised an equitable estoppel, or some other equity, in favor of appellants, as contended for, in our judgment the facts alleged fall far short of raising an estoppel here. But the Association contends that, whatever the construction of the statute, the Board improperly decided that the Brotherhood was chosen. There are involved 22 voters at the so-called Newton plant and 117 at the so-called Corwith plant. When these employees presented themselves for voting, the Association objected to their votes being received. The objection was sustained as to Corwith employees, but overruled as to the 22, who thereupon voted, their votes being separately kept so that it might appear how, if at all, the votes would affect the result, It is conceded that the 22 votes did not affect the result. If the Corwith votes had been received it would have increased the total of eligibles by 117, and if all these had voted for the Association it would have given the Association a majority over the Brotherhood. But, be this as it may, these votes were rejected on the objection of the Association, and it is now in no position to assert impropriety in their rejection, Indeed, it has not asserted there was any impropriety therein; but the contention is made that the 22 were on the same basis as the 117, and that if the 22 were received it was improper to have excluded the 117, and that, therefore, a court of equity should regard the 117 as votes which should have been received, and that had they been voted they might have changed the result, and that therefore at best the election was void. The fact that the 22 were received can in no way affect the rejection of the 117; and the fact that the Association’s objection to the 22 was not sustained does not tend to render improper the otherwise unchallenged action of the Board in rejecting the 117. The two sets of employees were at different plants and not associated together; and while the statement in the bill — that they were in general doing the same class of work — is accepted, this does not necessarily require the conclusion that both should have had the same treatment, There may have been other sufficient reason for admitting the one and rejecting the other. But, be this as it may, the Board is vested with a large discretion, and with a power to conduct the election and to determine who are qualified to vote thereat; and in the absence of a definite shewing of fraud or other gross impropriety of the Board whereby an improper result has been certified, courts will not interfere. It further appears that of the ballots received 21 were blank ballots and 41 were rejected because improperly marked. The Association contends that, treating all these ballots as having been cast, the Brotherhood lacked 4 votes of having a majority of the ballots which were received, and therefore it did not receive the majority necessary to election. The case of Lodoen v. City of Warren, 118 Minn. 371, 136 N. W. 1031, is cited in support of the contention. The court was there dealing with a statute (Sp.Laws 1891, c. 44, subc. 5, § 5, subd. 2) which required a certain proposition to receive a majority of the “votes cast” in order to carry it, and it was held that votes offered and received were “cast” within the purview of the statute and must be counted in determining whether a majority of votes cast was for the proposition, The statute with which we are dealing does not provide for a majority of the votes cast, but specifies that, “The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter.” We have indicated our views as to the construction to be placed on this statute, and in our judgment a blank ballot is not to be regarded in any other light than as a failure to vote by one qualified to do so. Excluding from consideration the 21 blank ballots, and treating them as though these members had not voted at all, and adding to the total vote reported the 41 rejected ballots, the Brotherhood would still have a majority of 7 of that total. It is not contended that the defectively marked ballots were improperly rejected, and the good faith or action of the Board in that respect is not challenged. Surely it was acting within the scope of its statutory authority; and although we are of the belief that under this statute ballots improperly marked and in good faith rejected should be regarded in the same light as blank ballots, or as an omission to vote of an eligible member, it is not necessary to decide this if we are correct in our conclusion respecting the blank ballots. The order of the District Court denying the temporary injunction, and its decree dismissing the bill on motion of defendants, are affirmed. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_respondent	079	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. TRAIN, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY v. CAMPAIGN CLEAN WATER, INC. No. 73-1378. Argued November 12, 1974 Decided February 18, 1975 Solicitor General Bork argued the cause for petitioner. With him on the briefs were Assistant Attorney General Hills, Deputy Solicitor General Friedman, Edmund W. Kitch, William L. Patton, Robert E. Kopp, Eloise E. Davies, and David M. Cohen. W. Thomas Jacks argued the cause for respondent. With him on the brief was Alan B. Morrison. Briefs of amici curiae were filed by Evelle J. Younger, Attorney General, pro se, Robert H. O’Brien, Senior Assist-ant Attorney General, and Nicholas C. Yost, Deputy Attorney General, for the Attorney General of California; by Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Stewart H. Freeman and Charles Alpert, Assistant Attorneys General, for the State of Michigan; by Warren Spannaus, Attorney General, Byron E. Starns, Deputy Attorney General, Peter W. Sipkins, Solicitor General, and Eldon G. Kaul, Special Assistant Attorney General, for the State of Minnesota; by William J. Brown, Attorney General, and Richard P. Fahey, and David E. Northrop, Assistant Attorneys General, for the State of Ohio; by John L. Hill, Attorney General, Larry F. York, First Assistant Attorney General, and Philip K. Maxwell, Assistant Attorney General of Texas, Robert W. Warren, Attorney General, and Theodore L. Priebe, Assistant Attorney General of Wisconsin, John C. Danforth, Attorney General, and Robert M. Lindholm, Assistant Attorney General of Missouri, Larry Derryberry, Attorney General, and Paul C. Duncan, Assistant Attorney General of Oklahoma, and Tern Miller, Attorney General, and Curt T. Schneider, Assistant Attorney General of Kansas, for the States of Texas, Wisconsin, Missouri, Oklahoma, and Kansas; by Andrew P. Miller, Attorney General, Gerald L. Baliles, Deputy Attorney General, and James E. Ryan, Jr., Assistant Attorney General, for the Commonwealth of Virginia; by Slade Gorton, Attorney General, Charles B. Roe, Jr., Senior Assistant Attorney General, and Martin J. Durkan and James B. McCabe, Special Assistant Attorneys General of Washington, and Israel Packel, Attorney General, and James R. Adams, Deputy Attorney General of Pennsylvania, for the State of Washington and the Commonwealth of Pennsylvania; and by Fletcher N. Baldwin, Jr., for the Center for Governmental Responsibility. Pee Curiam. On January 15, 1973, respondent filed a complaint in the District Court seeking to compel the petitioner, as Administrator of the Environmental Protection Agency, to allot among the States the full sums authorized to be appropriated for fiscal years 1973 and 1974 by § 207 of the Federal Water Pollution Control Act, as added by the Amendments of 1972, 86 Stat. 839, 33 U. S. C. § 1287 (1970 ed., Supp. II), for federal grants to municipalities for construction of publicly owned waste treatment works. Although conceding in the trial court that the Administrator had a measure of discretion in making the allotments authorized by § 205 of the Act, 86 Stat. 837, 33 U. S. C. § 1285 (1970 ed., Supp. III), respondent asserted that the Administrator had abused his discretion by allotting only 45% of the sums authorized to be appropriated by § 207. In sustaining respondent’s position, the District Court rejected the holding by the United States District Court for the District of Columbia in City of New York v. Ruckelshaus, 358 F. Supp. 669 (1973), that the Administrator has no discretion to allot less than the full amounts authorized by the Act. The Court of Appeals proceeded on the premise that there was discretion to control or delay allotments but concluded that further proceedings were essential to determine whether the Administrator’s discretion had been abused. The Administrator petitioned for certiorari, asserting that the exercise of his discretion to allot funds under § 205 is not subject to judicial review. We granted certiorari, 416 U. S. 969 (1974), and heard the case with Train v. City of New York, ante, p. 35. We held in Train v. City of New York that the Administrator has no authority under § 205 to allot less than the full amounts sought to be appropriated under § 207. Because that holding is at odds with the premise underlying the judgment of the Court of Appeals, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion and with the opinion in Train v. City of New York. So ordered. Mr. Justice Douglas concurs in the result. The petition also asserted that the doctrine of sovereign immunity foreclosed ordering the Administrator to allot funds that he had withheld in the course of exercising his discretion under the Act. In light of Train v. City of New York, ante, p. 35, and our disposition of the instant case, we need not address this question. 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_state	26	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". UNITED STATES of America, Appellee, v. Belle UNDERHILL, a/k/a Belle U. Greathouse, Appellant. No. 84-1826. United States Court of Appeals, Eighth Circuit. Submitted Jan. 14, 1985. Decided Jan. 23, 1985. Gerald M. Handley, Gregory O. Grounds, Kansas City, Mo., for appellant. Robert E. Larsen, Asst. U.S. Atty., Kansas City, Mo., for appellee. Before HEANEY, ROSS and McMILLI-AN, Circuit Judges. PER CURIAM. Belle Underhill was convicted of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) (1982), and conspiring to distribute in violation of 21 U.S.C. § 846 (1982). Underhill appeals, claiming that she was entrapped as a matter of law and that reversible error was committed when the trial court failed to read portions of two instructions. We affirm her conviction. FACTS On six occasions, Belle Underhill delivered cocaine to Susan Jones, a paid informant, and Andrew Daniels, a Kansas City police detective posing as a marijuana farmer. The deliveries took place between October 27, 1983, and January 23, 1984, and involved a total of over four pounds of cocaine which sold for a total of $98,600. Prior to becoming an informant, Jones had been a drug user and dealer. She had seen Underhill distribute drugs to a friend in 1978 or 1979. Jones contacted Underhill in August of 1983 and told her that she was seeking a good source of cocaine. Un-derhill, however, said that she was no longer in the business. Convinced that Under-hill was simply being cautious, Jones began to socialize with Underhill in order that they would develop a trusting relationship. During the period in which Jones socialized with Underhill, cocaine was discussed only two other times. In September, Jones again inquired about cocaine. Underhill said that she was not sure that she could help her, but that they could continue to talk. In October, Underhill advised Jones that she had investigated Jones and that, since Jones did not appear to be an informant, they might do business. Subsequently, Underhill called Jones and set up the first cocaine deal. Five days after this first transaction, Un-derhill and Detective Daniels (acting undercover) met for lunch. She told Daniels that she had engaged in cocaine dealings in the past, but was no longer involved in such activities. After this meeting, Daniels acted as Jones’ “money man” in the subsequent dealings with Underhill. The first sales involved small amounts of cocaine. Subsequently, larger deals were made, concluding at a time when a $1.23 million deal was being negotiated. The government contends that this building up process further reveals Underhill’s caution. The government also points to Underhill’s use of aerosol cans and “split-deliveries” to deliver the cocaine, and use of pseudonyms to identify her sources, as evidence of Un-derhill’s sophistication as a cocaine dealer. Underhill, on the other hand, presented testimony of a psychologist who concluded that Underhill was a passive, dependent person who would do what others asked of her in order that she might retain their friendship. The psychologist concluded that it was plausible that Underhill might have helped Jones obtain cocaine out of fear of losing Jones as a friend. DISCUSSION 1. Entrapment as a Matter of Law It is well established that: In order to demonstrate entrapment as a matter of law, the evidence must clearly have indicated that a government agent originated the criminal design; that the agent implanted in the mind of an innocent person the disposition to commit the offense; and that the defendant then committed the criminal act at the urging of the government agent. United States v. Shaw, 570 F.2d 770, 772 (8th Cir.1978); United States v. Lard, 734 F.2d 1290 at 1293-1294 (8th Cir.1984). In ' determining this issue, we must view the evidence in the light most favorable to the government. United States v. French, 683 F.2d 1189, 1192 (8th Cir.), cert. denied, 459 U.S. 972, 103 S.Ct. 304, 74 L.Ed.2d 284 (1982). Where there is conflicting evidence, “[t]he question of entrapment is ordinarily for the jury.” Holmes v. United States, 709 F.2d 19, 20 (8th Cir.1983); Shaw, 570 F.2d at 772. United States v. Leroux, 738 F.2d 943, 947 (8th Cir.1984). Underhill alleges that the evidence established that she was entrapped as a matter of law and that the court erred in denying her motions for a judgment of acquittal at the conclusion of the government’s case, and at the close of all the evidence, on this basis. She relies primarily upon United States v. Lard, 734 F.2d 1290 (8th Cir.1984), wherein this court found that the defendant had been entrapped as a matter of law into committing the crime of selling a pipe bomb. In Lard, the reluctance of the defendant to accept the government agent’s solicitations to engage in criminal activity was an important factor in finding a lack of predisposition. United States v. Lard, supra, at 1293-96. Underhill’s case is distinguishable from Lard, however, in that Underhill’s expressed reluctance could have reasonably been found by a jury to have been an act of caution on the part of a wary criminal. Since a reasonable juror could have found beyond a reasonable doubt that Underhill was predisposed to sell cocaine, entrapment as a matter of law was not established. 2. Jury Instruction Omissions The trial court failed to read portions of two instructions submitted by the government. The omissions were apparently inadvertent, as the omitted portions were on the second page of each proposed instruction. Underhill failed to object to either omission. First, the trial court failed to read the following portion of an instruction on burden of proof and reasonable doubt: So if the jury, after careful and impartial consideration of all the evidence in the case, has a reasonable doubt that a defendant is guilty of the charge, it must acquit. If the jury views the evidence in the case as reasonably permitting either of two conclusions — one of innocence, the other of guilt — the jury should of course, adopt the conclusion of innocence. The omitted portion of the instruction is known as a “Two Conclusions” or “Two Hypotheses” instruction. Underhill admits that such an instruction may actually not be desirable to a defendant and that no reported case has reversed a conviction for failure to give such an instruction. In United States v. Grayson, 597 F.2d 1225, 1230 (9th Cir.), cert. denied, 444 U.S. 873 & 875, 100 S.Ct. 153 & 157, 62 L.Ed.2d 99 & 102 (1979), the court held that the trial court’s refusal to read such an instruction was not error. See also United States v. Arambasich, 597 F.2d 609, 614 (7th Cir.1979); United States v. Rucker, 586 F.2d 899, 904 (2d Cir.1978). It is clear that the failure to read the above instruction was not plain error. The trial court also failed to read the following portion of an instruction on the conspiracy charge: In determining whether a conspiracy existed, the jury should consider the actions and declarations of all the alleged participants. However, in determining whether a particular defendant was a member of the conspiracy, if any, the jury should consider only his acts and statements. He cannot be bound by the acts or declarations of other participants until it is established that a conspiracy existed, and that he was one of its members. Underhill’s attorney admits that this omission “may be of little importance in view of the paucity of evidence of acts or declarations of any alleged co-conspirator of Un-derhill’s * * * which could have been considered by the jury as tending to establish her membership.” In effect, Underhill admits that any error caused by the omission was harmless. Clearly, no reversible error was caused by the omission. In conclusion, we find that Underhill was not entrapped as a matter of law and that no reversible error was caused by the trial court’s failure to read portions of the instructions. Accordingly, her conviction is affirmed. . The remainder of this instruction, which the court did read, instructed the jury as follows: INSTRUCTION NO. 3: The law presumes a defendant to be innocent of a crime. Thus a defendant, although accused, begins the trial with a "clean slate” — with no evidence against him. And the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit a defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case. It is not required that the government prove guilt beyond all reasonable doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs. The jury will remember that a defendant is never to be convicted on mere suspicion or conjecture. The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant; for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_usc2	29	What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 29. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. Lawrence F. CAFERO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 433, Docket 28622. United States Court of Appeals Second Circuit. Argued April 21, 1964. Decided Aug. 27, 1964. Gene Crescenzi, New York City, for petitioner. Arnold Ordman, Gen. Counsel, Domi-, nick L. Manoli, Associate Gen. Counsel,' Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, George B. Driesen, Attys., N. L. R. B., for respondent. Before WATERMAN, KAUFMAN and MARSHALL, Circuit Judges. PER CURIAM. This is a petition brought pursuant to Section 10(f) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq., to review an order of the NationalLabor Relations Board dismissing a complaint of an employee which charged the respondent union with having violated Sections 8(b) (1) (A) and 8(b) (2) of the Act. Petitioner, who has been a member of the respondent union and a night shift proofreader at the New York Times since 1946, and who enjoyed senior job security status, was, at the union’s insistence, dropped to the bottom of the Times’s seniority list in 1962 after it had been discovered that petitioner was also employed full time during the day as a junior high school principal and had been steadily employed on a full time basis as either a teacher or a principal for the previous thirteen years. Section 33(f) of the collective bargaining agreement then in effect between respondent and the Times provided that an employee like petitioner might engage in pursuits other than composing room work for a period not exceeding 90 days per year without the loss of seniority job priority, and a union rule provided that “members who have full-time employment at other occupations are classed as ‘N.A.T.’ [not-at-trade] and are not eligible for employment at the printing trade except with the permission of proper officers of the local union when all available substitutes are employed.” We think that we are com-'i pelled by this Court’s recent decision in ! N. L. R. B. v. Miranda Fuel Co., 326 F.2d 172 (2 Cir. 1963), to affirm the Board’s : dismissal of petitioner’s complaint. A j synthesis of the majority and concurring j opinions in that case indicates that a 1 complainant such as petitioner must ■ show, at the very least, that the union has . arbitrarily or capriciously discriminated i against him. This petitioner has failed ! to do. The determination by the National Labor Relations Board that the employment rule pursuant to which petitioner’s seniority priority was revoked, being designed to insure that available fpositions in the printing trade would go \| to those workers in the trade who most needed the employment, was not inherently discriminatory, cf. Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), and the record amply supports the Board’s conclusion that the rule was not discriminatorily applied in practice. The Board’s order dismissing the complaint is affirmed and the petition to review that order is denied. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 29. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_majvotes	2	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. Soung O. KWOUN et al., Appellees, v. SOUTHEAST MISSOURI PROFESSIONAL STANDARDS REVIEW ORGANIZATION et al., Appellants. Soung O. KWOUN et al., Appellants, v. SOUTHEAST MISSOURI PROFESSIONAL STANDARDS REVIEW ORGANIZATION et al., Appellees. Nos. 85-2379, 86-1502 and 86-1838. United States Court of Appeals, Eighth Circuit. Submitted Nov. 10, 1986. Decided Feb. 4, 1987. Rehearing and Rehearing En Banc Denied March 9,1987. Louis Gilden, St. Louis, Mo., for appellants. Robert Zener, Washington, D.C., Mark Packer, St. Louis, Mo., and Jerry L. Short, Jefferson City, Mo., for appellees. Before HEANEY and BOWMAN, Circuit Judges, and ARNOLD, District Judge. The HONORABLE MORRIS S. ARNOLD, United States District Judge for the Western District of Arkansas, sitting by designation. MORRIS SHEPPARD ARNOLD, District Judge. The U.S. Department of Health and Human Services (HHS) oversees Medicare payments to doctors and hospitals. See 42 U.S.C. § 902, § 1395kk(a). As part of its oversight responsibilities, HHS is authorized to exclude doctors and hospitals from eligibility for Medicare payments if services have been provided that are substantially in excess of need or fail to meet professional standards. See 42 U.S.C. § 1395y(d)(l)(C). To determine whether to exclude doctors and hospitals from eligibility, HHS uses reports submitted by regional and statewide peer review organizations, See 42 U.S.C. § 1395y(g). The HHS office with the specific responsibility for making such determinations is called the Health Care Financing Administration (HCFA). In December, 1978, HCFA notified the regional peer review group for southeastern Missouri that the patient discharge rates in that region indicated the possibility of abuses in claims for Medicare payments. The regional peer review group began an investigation that eventually focused on the Poplar Bluff Hospital and the doctors with admitting privileges there. Soung Kwoun is one of those doctors. Following the investigation, the regional peer review group recommended to the statewide peer review group that the hospital change some of its procedures and that Dr. Kwoun be excluded from eligibility for Medicare payments for ten years. The statewide peer review group adopted the recommendation of the regional peer review group and then transmitted the report and recommendations to HCFA in March, 1980. In September, 1980, HCFA notified Dr. Kwoun of the recommendation and advised him of his right to oppose it. After an informal hearing in December, 1980, and additional consideration of the peer review group report and Dr. Kwoun’s responses to it, HCFA adopted the recommendation. In September, 1981, HCFA officially excluded Dr. Kwoun from eligibility for Medicare payments for a period of ten years. Dr. Kwoun then asked for a formal hearing before an administrative law judge. The administrative law judge reversed the ex-elusion, citing procedural and substantive errors by HCFA, especially the reliance of HCFA on informal discussions with members of the regional peer review group as the basis for excluding Dr. Kwoun. The administrative law judge then ordered Dr. Kwoun’s reinstatement to eligibility for Medicare payments. Dr. Kwoun subsequently brought this action against certain HCFA employees, members of the regional and statewide peer review groups, two state officials involved in state proceedings brought against Dr. Kwoun as a result of the recommendation of the peer review group, and the insurance company that administers the Medicare payments program under contract with the government. Dr. Kwoun claimed that the HCFA employees deprived him of certain property and liberty interests without due process and subjected him to malicious prosecution and extreme and outrageous conduct. He asserted that the members of the regional and statewide peer review groups and the state officials deprived him of equal rights under the law to make and enforce contracts and conspired to deprive him of the equal protection of the laws. His complaint against the peer review group members and the state officials also contained counts for malicious prosecution and extreme and outrageous conduct. Finally, Dr. Kwoun claimed that the state officials deprived him of certain property and liberty interests without due process. The HCFA employees moved for summary judgment on the basis of absolute immunity. The district court denied the motion. Three of the HCFA employees appeal the denial of absolute immunity. While the HCFA employees’ appeal was pending, the district court dismissed, 632 F.Supp. 1091, sua sponte, the case against all defendants on the ground of qualified immunity. The plaintiffs appeal these dismissals. We affirm the orders of dismissal of all defendants but do so on the ground of absolute rather than qualified immunity. I. We turn first to the federal defendants— the HCFA employees. Defendant Frank Kram is the HCFA employee who reviewed the peer review group report and accepted its recommendation to exclude Dr. Kwoun from eligibility for Medicare reimbursement. Defendant Don Nicholson is the HCFA employee who signed the notice of proposed exclusion; defendant Ralph Howard is the HCFA employee who signed the final decision excluding Dr. Kwoun. Apparently the acts of defendant Kram are the primary focus of attention; the complaint is cryptic on this point, and the only specific allegation against defendants Nicholson and Howard in the plaintiffs’ brief is that their conduct “was in a line with the earlier conduct of Kram * * * and furthered and reinforced the previous lack of arms’ length dealing.” While the regional peer review group was investigating Dr. Kwoun, but before it submitted its report to HCFA, defendant Kram apparently met with the members of the investigating committee in the offices of the statewide peer review group and discussed the investigation of Dr. Kwoun. The administrative law judge found that the report of the peer review group did not meet the substantive due process requirements set forth in the applicable policy manual and federal regulations. He found in addition that Dr. Kwoun had been denied substantive due process because defendant Kram’s adoption of the recommendation to exclude him from eligibility for Medicare payments was based at least in part on defendant Kram’s discussions with members of the regional peer review group before the report was issued and not on the report itself. Barr v. Matteo, 360 U.S. 564, 575, 79 S.Ct. 1335, 1341, 3 L.Ed.2d 1434 (1959) (plurality opinion), grants absolute immunity from common-law tort claims to federal officials acting “within the outer perimeter of [their] line of duty.” Our court has described absolute immunity from common-law torts as applying to acts connected “ ‘ * * * more or less * * * with the general matters committed by law to the officer’s control or supervision, and not * * * manifestly or palpably beyond his authority.' ” Bushman v. Seiler, 755 F.2d 653, 655 (8th Cir.1985), quoting Norton v. McShane, 332 F.2d 855, 859 (5th Cir.1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965). The plaintiffs contend that defendant Kram (and by extension defendants Nicholson and Howard, those officials having relied on defendant Kram’s recommendation) acted outside the scope of his authority because defendant Kram was involved in discussions with members of the regional peer review group before its report was issued. The first mention of HCFA in the regulations governing the imposition of exclusion sanctions under the Medicare program provides that a peer review group is to submit a report on violations to HCFA after an investigation of possible violations. See 42 C.F.R. § 474.3(b), § 474.8(a). Following submission of a peer review group report, HCFA is to determine whether a violation has occurred and is to provide notice to the alleged violator of the proposed exclusion. See 42 C.F.R. § 474.10(a), § 474.10(c). There is no mention of HCFA involvement prior to the issuance of a peer review group report. On the other hand, there is no explicit prohibition of such involvement either. Furthermore, HHS is charged with the duty of “promoting the effective, efficient, and economical delivery of health care services, and of promoting the quality of services of the type for which [Medicare] payment may be made.” See 42 U.S.C. § 1395y(g). HHS also has the authority to contract with peer review groups in order to carry out its duties. Id. All parties agree that it was HCFA that notified the regional peer review group of data indicating possible Medicare abuses. It seems apparent, then, that any involvement of HCFA employees in a peer review group investigation after that notification would be within the scope of their authority. Even if acceptance of the recommendation to exclude was based on improper factors (such as consideration of matters outside the peer review group report), that does not make the earlier actions of the HCFA employees outside the scope of their authority; it merely makes the acceptance of the recommendation incorrect. The federal defendants are therefore entitled to absolute immunity from common-law tort claims. A more difficult question is how to categorize the purpose of the duties of the HCFA employees in the context of the process for imposing exclusion sanctions on possible violators of the rules governing Medicare payments. The courts have recognized that the reasons for granting absolute immunity to federal officials from common-law tort claims — to protect them “in the execution of their federal statutory duties from criminal or civil actions based on state law,” Butz v. Economou, 438 U.S. 478, 489, 98 S.Ct. 2894, 2902, 57 L.Ed.2d 895 (1978) — do not apply to claims based on violations of constitutional law. Id. at 495, 98 S.Ct. at 2905. In most cases, “federal executive officials exercising discretion are entitled only to * * * qualified immunity” from constitutional claims. Id. at 507, 98 S.Ct. at 2911. Absolute immunity from constitutional claims is to be granted only in “those exceptional situations where it is demonstrated that [such] immunity is essential for the conduct of the public business.” Id. The determination of when such exceptional situations exist is a “ ‘functional’ ” one, Harlow v. Fitzgerald, 457 U.S. 800, 810, 102 S.Ct. 2727, 2734, 73 L.Ed.2d 396 (1982), and “[t]he burden of justifying absolute immunity rests on the official asserting the claim.” Id. at 812, 102 S.Ct. at 2735. “[J]udieial, prosecutorial, and legislative functions require absolute immunity,” id. at 811, 102 S.Ct. at 2734, and therefore “agency officials performing certain functions analogous to those of a prosecutor” are entitled to absolute immunity. Butz, 438 U.S. at 515, 98 S.Ct. at 2915. The Supreme Court has held only that in “initiating a prosecution and in presenting the [case against the defendant]” — those prosecutorial functions “intimately associated with the judicial phase” of his duties — is a prosecutor entitled to absolute immunity. Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 944-95, 47 L.Ed.2d 128 (1976). Whether a prosecutor acting as “an administrator or [an] investigative officer rather than * * * an advocate” is entitled to absolute immunity is a question that the Court has expressly reserved. Id. The federal defendants argue that the process of deciding whether to impose exclusion sanctions on a person under the Medicare program is analogous to an agency decision on whether to initiate administrative proceedings against a person in order to suspend or revoke his federal registration as a commodities futures merchant, see Butz, 438 U.S. at 481, 98 S.Ct. at 2897, or in order to impose professional disciplinary sanctions, see Austin Municipal Securities, Inc. v. National Association of Securities Dealers, Inc., 757 F.2d 676, 689 (5th Cir.1985). They therefore argue that actions taken prior to the formal hearing before the administrative law judge (defendant Kram’s allegedly improper consultation with members of the regional peer review group in January, 1980, and the failure to give adequate notice to Dr. Kwoun in December, 1979, of the fact that he was being considered for exclusion sanctions) occurred in the context of essentially advocatory prosecutorial duties — “deciding whether a proceeding should be brought and what sanctions should be sought,” Butz, 438 U.S. at 515, 98 S.Ct. at 2915, against “a specific target,” Gray v. Bell, 712 F.2d 490, 501 (D.C.Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984). We agree. The statutes and regulations governing the exclusion sanctions process obviously anticipate the possibility of a formal adjudicative hearing before an administrative law judge designated by the appeals council of HHS. See 42 U.S.C. § 1395y(d)(3) and 42 C.F.R. § 474.10(g)(1), § 405.1533. The hearing is de novo, and HCFA has the burden of proof. Appeal of the decision of the administrative law judge is to the appeals council of HHS. See 42 C.F.R. § 405.1561. Judicial review of the appeals council decision is a possibility. See 42 U.S.C. § 1395y(d)(3). The federal defendants further argue that their alleged misconduct during the formal hearing before the administrative law judge was clearly advocatory. We agree. An agency official’s presentation of evidence in an agency hearing is protected for the same reasons that a prosecutor’s presentation of evidence before a court is protected. Butz, 438 U.S. at 517, 98 S.Ct. at 2916. Because the actions of the federal defendants at all relevant times were prosecutorial in nature, those defendants are entitled to absolute immunity from constitutional claims. The dismissal orders of the district court as to the federal defendants are therefore affirmed. II. The SEMO defendants include the regional peer review corporate body, the statewide peer review corporate body, the directors and officers of both groups, the regional peer review group representative to the statewide peer review group, the members of the regional peer review group investigation oversight committee, the Poplar Bluff Hospital review coordinator for the regional peer review group, the physician advisers to Poplar Bluff Hospital appointed by the regional peer review group, and the members of the regional peer review group investigating team specifically assigned to Dr. Kwoun. These defendants argue that because they were participating in a review process established and governed by federal law, they are federal actors for the purpose of any analysis of their activities in relation to the investigation of Dr. Kwoun. We agree. HHS is authorized to contract with peer review groups to carry out its duty to promote “the effective, efficient, and economical delivery of health care services, and [to promote] the quality of services of the type for which [Medicare] payment may be made.” See 42 U.S.C. § 1395y(g). Medicare payments may not be made for items or services that are not “reasonable and necessary for the diagnosis or treatment of illness or injury.” See 42 U.S.C. § 1395y(a)(l)(A). When a peer review group does undertake such a contract, the peer review group “must * * * review some or all of the professional activities * * * of physicians * * * in the provision of health care services and items for which [Medicare] payment may be made * * * for the purpose of determining whether * * * [those] services and items are * * * reasonable and medically necessary and whether such services and items are not allowable under * * * section 1395y.” See 42 U.S.C. § 1320c-3(a)(l)(A). The peer review group is to determine, on the basis of its review, whether Medicare payments are to be made for the services reviewed. See 42 U.S.C. § 1320c-3(a)(2). The determination of the peer review group is conclusive as to Medicare payments unless it is changed by reconsideration of the peer review group. See 42 U.S.C. § 1320c-3(a)(2)(C). In other words, HHS essentially uses the peer review group as a consultant that recommends whether or not a doctor should continue to be eligible for Medicare reimbursements. Consultants who investigate whether the services provided by doctors are necessary and eligible for Medicare reimbursement have been held to be “governmental agents for immunity purposes.” Bushman v. Seiler, 755 F.2d 653, 655 (8th Cir.1985) (defendant was consultant to insurance company that was Medicare carrier for HHS). See also Gross v. Sederstrom, 429 F.2d 96, 99 (8th Cir.1970) (defendants were elected committee members who investigated farmer’s eligibility for grain program for federal Agricultural Stabilization and Conservation Service; held to be federal officials for immunity purposes in suit resulting from denial of farmer’s application for participation). The SEMO defendants were therefore acting as federal officials for immunity purposes. As federal officials for the purpose of an analysis of eligibility for immunity, the SEMO defendants are immune from common-law tort claims if their actions were not “ ‘ * * * manifestly or palpably beyond [their] authority.’ ” Bushman, 755 F.2d at 655, quoting Norton v. McShane, 332 F.2d 855, 859 (5th Cir.1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965). The plaintiffs apparently concede that the actions of the SEMO defendants were within the authority given by the statute, since their argument concentrates on the assertion that the SEMO defendants are not federal officials. Furthermore, although the administrative law judge found that the peer review group report was deficient and even inaccurate in several respects, he made no finding that the SEMO defendants had investigated Dr. Kwoun in any manner not authorized by statute or by their contract with HHS. We hold, therefore, that the SEMO defendants are absolutely immune from the common-law tort claims asserted against them. The SEMO defendants argue that they are also entitled to immunity from constitutional claims because their actions were essentially prosecutorial in nature. They contend that the peer review groups are analogous to the professional organizations to whom absolute immunity from constitutional claims has been granted when disciplinary actions have resulted in a lawsuit by the person disciplined. See, e.g., Austin Municipal Securities, Inc. v. Na tional Association of Securities Dealers, Inc., 757 F.2d 676, 689 (5th Cir.1985) (prosecutorial and adjudicative functions of securities dealers’ association disciplinary committee); Clulow v. State of Oklahoma, 700 F.2d 1291, 1298 (10th Cir.1983) (prosecutorial function of bar disciplinary committee); and Simons v. Bellinger, 643 F.2d 774, 782 (D.C.Cir.1980) (prosecutorial and adjudicative functions of bar committee on unauthorized practice of law). We agree. Peer review groups that are eligible to contract with HHS must be “composed of a substantial number of the licensed doctors of medicine and osteopathy engaged in the practice of medicine or surgery in the area and who are representative of the practicing physicians in the area” and must be judged by HHS to be “able * * * to perform reviews of the pattern of quality of care in an area of medical practice where actual performance is measured against objective criteria which define acceptable and adequate practice.” See 42 U.S.C. § 1320c-l(l)(A), § 1320c-l(2). In conducting reviews under contract with HHS, the peer review groups are to “apply professionally developed norms of care, diagnosis, and treatment based upon typical patterns of practice within the [relevant] geographic area * * * taking into consideration national norms where appropriate.” See 42 U.S.C. § 1320c-3(a)(6). The norms with respect to treatment for particular illnesses or health conditions are to include “the types and extent of the health care services which * * * are considered within the range of appropriate diagnosis and treatment of such illness[es] or health condition^], consistent with professionally recognized and accepted patterns of care.” See 42 U.S.C. § 1320c-3(a)(6)(A). In other words, the medical peer review groups are organizations of professionals charged with the task of evaluating the performance of members of their profession. Thus, although medical peer review groups are not associations of professionals supervised by a licensing body, see, e.g., Austin Municipal Securities, Inc., 757 F.2d at 680, and Clulow, 700 F.2d at 1297, they are nonetheless very similar to such associations. Furthermore, although medical peer review groups do not control a professional’s ability to practice in all contexts, see, e.g., Simons, 643 F.2d at 781 (bar committee has power to disbar attorneys), they do control to some extent a professional’s ability to practice in a particular class of cases — those that involve claims for Medicare reimbursement. See 42 U.S.C. § 1320c-3(a)(2)(C), § 1395y(d)(3) (determination of peer review group on eligibility for Medicare reimbursement is conclusive unless changed by reconsideration of peer review group, formal hearing decision of administrative law judge, decision of appeals council of HHS, or judicial review). Thus medical peer review groups are very similar to bar committees that control whether a lawyer may practice before certain courts. See, e.g., Simons, 643 F.2d at 775. Absolute immunity from even constitutional claims was granted to the securities dealers’ association disciplinary committee in Austin Municipal Securities, Inc., 757 F.2d at 689, and to the bar disciplinary and practice committees in Clulow, 700 F.2d at 1298, and Simons, 643 F.2d at 782. Such immunity was granted because each committee’s function shared the characteristics of the judicial process, because an unfavorable recommendation from each committee had the potential of provoking a retaliatory lawsuit, and because the subject of each committee’s actions had adequate opportunity to challenge those actions through judicial review. See Austin Municipal Securities, Inc., 757 F.2d at 689, Clulow, 700 F.2d at 1298, and Simons, 643 F.2d at 782, all incorporating the tests specified in Butz v. Economou, 438 U.S. 478, 513 and 515-16, 98 S.Ct. 2894, 2914 and 2915-16, 57 L.Ed.2d 895 (1978). We find that the review activities of the medical peer review groups at issue here— those entrusted to them by Congress so that the Medicare program can function effectively, efficiently, and economically, see 42 U.S.C. § 1395y(g) — are similar enough to the review activities of the disciplinary and practice committees declared to be immune in the cases discussed above that similar protection should be extended. We are not unmindful of the problems that may arise from the extension to medical peer review groups of absolute immunity from both common-law tort claims and constitutional claims. We are convinced, however, that in order for the Medicare program to work effectively, efficiently, and economically, see 42 U.S.C. § 1395y(g), some controls on quality of care must be exercised. We are also convinced that the exercise of controls on quality of care greatly increases the benefits derived from the Medicare program by both the individual Medicare patients and our society as a whole. We are further convinced that the only way to ensure both the effectiveness of the peer review system and the willingness of private doctors to participate in it is to insulate them from damage claims that may result from that work. The alternative to the use of private doctors to review medical decisions is the use of agency officials, who are much less likely to possess the expertise to evaluate such medical decisions. The use of agency officials to review medical decisions would almost certainly lead to a far less effective, efficient, and economical Medicare program. In short, we are convinced that absolute immunity is “essential for the conduct of the public business,” Butz, 438 U.S. at 507, 98 S.Ct. at 2911, in this critical health care area. The availability of administrative and judicial review serves as a check against abuse of the power inherent in the peer review system and against mistakes or sloppiness in that system. A further check over the long run is the power of HHS to terminate its contract with any peer review group. See 42 U.S.C. § 1320c-2(c)(6). We therefore hold that the SEMO defendants are absolutely immune from constitutional claims as well as common-law tort claims. The dismissal orders of the district court as to the SEMO defendants are affirmed. III. We turn last to the two state officials involved in state proceedings brought against Dr. Kwoun as a result of the recommendation of the peer review groups. Defendant W.F. Montgomery is the deputy director for medical services of the Missouri Department of Social Services; defendant Gary Clark is the executive secretary of the Missouri State Board of Registration for the Healing Arts. The Missouri Department of Social Services received a copy of the peer review group report that was submitted to HCFA. On the basis of that report, the Missouri Department of Social Services suspended Dr. Kwoun from eligibility for payments under the state Medicaid program. Defendant Montgomery was apparently the state officer who initiated the suspension. The Missouri State Board of Registration for the Healing Arts — the state licensing body for doctors, see Mo.Ann.Stat. § 334.-120 (Vernon 1987), which has the power to suspend or revoke a doctor’s license, see Mo.Ann.Stat. § 334.100 (Vernon 1987)— also received a copy of the peer review group report that was submitted to HCFA. On the basis of that report, the Missouri State Board of Registration for the Healing Arts initiated proceedings to suspend or revoke Dr. Kwoun’s license to practice medicine in Missouri. Defendant Clark, as the executive secretary of the board, was apparently the officer who initiated the proceedings for the board. He is considered an administrative officer (rather than a clerical employee). See Mo.Ann. Stat. § 334.123 (Vernon 1987) and Mo.Ann. Stat. § 620.010.15(4) (Vernon 1987). Defendant Montgomery’s suspension of Dr. Kwoun from eligibility for state Medicaid payments is clearly an act that was performed under the discretionary powers of his position; similarly, defendant Clark’s act in initiating license suspension/revocation proceedings against Dr. Kwoun is clearly an act that was performed under the discretionary powers of his position. Each is therefore immune under Missouri law from the common-law tort claims asserted against him. Kanagawa v. State by and through Freeman, 685 S.W.2d 831, 835 (Mo.1985) (en banc). The analysis of absolute immunity from constitutional claims for these state defendants is the same as that applicable to federal defendants. Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2909, 57 L.Ed.2d 895 (1978). We therefore find that each is also immune from the constitutional claims asserted against him. The process of deciding whether to impose a state Medicaid exclusion sanction, the process of deciding whether to initiate a license suspension/revocation proceeding, and the process of deciding whether to impose a federal Medicare exclusion sanction are all of a kind. Each is essentially an advocatory prosecutorial function — “deciding whether a proceeding should be brought and what sanctions should be sought,” Butz, 438 U.S. at 515, 98 S.Ct. at 2915, against “a specific target,” Gray v. Bell, 712 F.2d 490, 501 (D.C.Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984). Indeed, the administrative and judicial review available under Missouri law is similar to that available under federal law. See Mo.Ann.Stat. § 621.055.1 (Vernon 1987), Mo.Ann.Stat. § 536.100 (Vernon 1953) (review of exclusion from state Medicaid program); Mo. Ann.Stat. § 334.100.2 and § 334.100.3 (Vernon 1987), Mo.Ann.Stat. § 621.100, § 621.-110, and § 621.145 (Vernon 1987), and Mo. Ann.Stat. § 536.100 (Vernon 1953) (review of suspension/revocation of license to practice medicine); and 42 U.S.C. § 1395y(d)(3) (review of exclusion from federal Medicare program). The orders dismissing the state defendants, along with the orders dismissing the federal defendants and the SEMO defendants, are therefore affirmed. . The regional peer review group is known as the Southeast Missouri Professional Standards Review Organization (SEMO). . The other plaintiffs are corporate entities in which Dr. Kwoun has an interest. . The statewide peer review group is known as the Missouri Statewide Professional Standards Review Council. . The insurance company was dismissed on grounds other than those involved in these appeals; its dismissal was not appealed. . The HCFA employees are collectively referred to by the parties as the federal defendants. . The members of the regional and statewide peer review groups are collectively referred to by the parties as the SEMO defendants. . A fourth HCFA employee was named as a defendant but did not appeal. . Because HCFA failed to follow certain procedural requirements relating to notice to Dr. Kwoun in December, 1979, of the proposed exclusion, the federal defendants are also charged with denying Dr. Kwoun procedural due process. These allegations are apparently included only as a basis for the constitutional claims against them. In addition, the federal defendants are charged with various misconduct during the hearing before the administrative law judge. These charges are also apparently included only as a basis for the constitutional claims against them. . The dissent would remand to the district court for a determination of which federal defendants’ duties can be characterized as prosecutorial or adjudicative. Affidavits and exhibits already submitted by the federal defendants to the district court, however, establish that each one had the authority to "initiate or continue a proceeding subject to agency adjudication.” Butz v. Economou, 438 U.S. 478, 516, 98 S.Ct. 2894, 2916, 57 L.Ed.2d 895 (1978). . “The decision to initiate administrative proceedings against an individual * * * is very much like the prosecutor’s decision to initiate or move forward with a criminal prosecution. An agency official, like a prosecutor, may have broad discretion in deciding whether a proceeding should be brought and what sanctions should be sought.” Butz, 438 U.S. at 515, 98 S.Ct. at 2915. ”[T]hose officials who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication are entitled to absolute immunity * * * for their parts in that decision.” Id. at 516, 98 S.Ct. at 2916. . The complaint does not specify whether the individual SEMO defendants are sued in their individual or their official capacity. However, our conclusions about the nature of the exclusion sanctions process and the role of peer review groups within that process make that question irrelevant. In addition, it turns out that some of the individual SEMO defendants either were not associated with the peer review groups at the relevant times, did not participate in the investigation of Dr. Kwoun, or participated only as expert witnesses in the formal hearing before the administrative law judge. Our conclusions about the nature of the exclusion sanctions process and the role of peer review groups within that process make it unnecessary for us to make separate rulings as to the different classes of SEMO defendants. . Once HHS acts on the recommendation of the peer review group, a formal hearing before an administrative law judge is available for review of the action taken by HHS, with eventual judicial review also available. See 42 U.S.C. § 1395y(d)(3). . The dissent relies on a statutory provision, 42 U.S.C. § 1320c-6(b), in arguing that the SEMO defendants are entitled only to qualified immunity. Legislative history on this provision, in either its current or previous incarnation, is sparse. The legislative history for the entire peer review statute currently in effect refers to the intent of Congress to exempt peer review reports from coverage under the Freedom of Information Act. See H.RXonf.Rep. 760, 97th Cong., 2d Sess. 443, reprinted in 1982 U.S.Code Cong, and Admin.News 781, 1223. This exemption was probably a statement of agreement with the conclusions of the court in Public Citizen Health Research Group v. Department of Health, Education, and Welfare, 668 F.2d 537, 544 (D.C.Cir.1981), that, for FOIA purposes, peer review groups were not intended to be, Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:
songer_district	B	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". Katherine LUMPKIN, Appellant, v. CITY OF LITTLE ROCK, Appellee. No. 79-1235. United States Court of Appeals, Eighth Circuit. Submitted Oct. 9, 1979. Decided Oct. 17, 1979. Phillip H. McMath, Little Rock, Ark., and Nat P. Ozmon, Chicago, Ill., on brief, for appellant. R. Jack Magruder, III, City Atty., Robert T. Taylor, Lester A. McKinley, and Carolyn B. Witherspoon, Asst. City Attys., Little Rock, Ark., William Fleming, Arkansas Municipal League, on brief, for appellee. Before LAY, HEANEY and HENLEY, Circuit Judges. PER CURIAM. Katherine Lumpkin appeals from the District Court’s dismissal of her tort complaint against the City of Little Rock, Arkansas. She contends that the District Court erred in holding that the municipality is immune from suit under Arkansas law. Her complaint in this diversity action states that she was severely burned in 1958 by the City’s negligent placement of “smudge pots” containing hot oil near her home. The City moved to dismiss under Fed.R.Civ.P. 12(b)(6). The District Court issued a memorandum and order dismissing the complaint because, under Arkansas law on the date of the injury, tort actions against cities were barred by the doctrine of municipal immunity. We affirm the District Court’s dismissal on the basis of its memorandum. Lumpkin also challenges the constitutionality of the Arkansas sovereign immunity doctrine. We find no merit in the challenge. The order of the District Court is affirmed. . Plaintiff, who was three years old at the time of her injury, filed her complaint the day before her twenty-first birthday. . Honorable G. Thomas Eisele, Judge, United States District Court, Eastern District of Arkansas, Western Division. . The parties agreed that Arkansas law was applicable to the action. 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_decisiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. SCHLAGENHAUF v. HOLDER, U. S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA. No. 8. Argued October 13, 1964. Decided November 23, 1964. Robert S. Smith argued the cause for petitioner. With him on the briefs was Wilbert Mclnerney. Erie A. Kightlinger argued the cause for respondent. With him on the brief were Aribert L. Young and Keith C. Reese. Mr. Justice Goldberg delivered the opinion of the Court. This case involves the validity and construction of Rule 35 (a) of the Federal Rules of Civil Procedure as applied to the examination of a defendant in a negligence action. Rule 35 (a) provides: “Physical and Mental Examination of Persons, (a) Order for examination. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.” I. An action based on diversity of citizenship was brought in the District Court seeking damages arising from personal injuries suffered by passengers of a bus which collided with the rear of a tractor-trailer. The named defendants were The Greyhound Corporation, owner of the bus; petitioner, Robert L. Schlagenhauf, the bus driver; Contract Carriers, Inc., owner of the tractor; Joseph L. McCorkhill, driver of the tractor; and National Lead Company, owner of the trailer. Answers were filed by each of the defendants denying negligence. Greyhound then cross-claimed against Contract Carriers and National Lead for damage to Greyhound’s bus, alleging that the collision was due solely to their negligence in that the tractor-trailer was driven at an unreasonably low speed, had not remained in its lane, and was not equipped with proper rear fights. Contract Carriers filed an answer to this cross-claim denying its negligence and asserting “[t]hat the negligence of the driver of the . . . bus [petitioner Schlagenhauf] proximately caused and contributed to . . . Greyhound’s damages.” Pursuant to a pretrial order, Contract Carriers filed a letter — which the trial court treated as, and we consider to be, part of the answer — alleging that Schlagenhauf was “not mentally or physically capable” of driving a bus at the time of the accident. Contract Carriers and National Lead then petitioned the District Court for an order directing petitioner Schlagenhauf to submit to both mental and physical examinations by one specialist in each of the following fields: (1) Internal medicine; (2) Ophthalmology; (3) Neurology; and (4) Psychiatry. For the purpose of offering a choice to the District Court of one specialist in each field, the petition recommended two specialists in internal medicine, ophthalmology, and psychiatry, respectively, and three specialists in neurology — a total of nine physicians. The petition alleged that the mental and physical condition of Schlagenhauf was “in controversy” as it had been raised by Contract Carriers’ answer to Greyhound’s cross-claim. This was supported by a brief of legal authorities and an affidavit of Contract Carriers’ attorney stating that Schlagenhauf ■had seen red lights 10 to 15 seconds before the. accident, that another witness had seen the rear lights of the trailer from a distance of three-quarters to one-half mile, and that Schlagenhauf had been involved in a prior accident. The certified record indicates that petitioner’s attorneys filed in the District Court a brief in opposition to this petition asserting, among other things, that “the physical and mental condition of the defendant Robert L. Schla-genhauf is not fin controversy’ herein in the sense that these words are used in Rule 35 of the Federal Rules of Civil Procedure;, [and] that good cause has not been shown for the multiple examinations prayed for by the cross-defendant . ...” While disposition of this petition was pending, National Lead filed its answer to Greyhound’s cross-claim and itself “cross-claimed” against Greyhound and Schlagen-hauf for damage to its trailer. The answer asserted generally that Schlagenhauf’s negligence proximately caused the accident. The cross-claim additionally alleged that Greyhound and Schlagenhauf were negligent “[b]y permitting said bus to be operated over and upon said public highway by the said defendant, Robert L. Schlagenhauf, when both the said Greyhound Corporation and said Robert L. Schlagenhauf knew that the eyes and vision of the said Robert L. Schlagenhauf was [sic] impaired and deficient.” The District Court, on the basis of the petition filed by Contract Carriers, and without any hearing, ordered Schlagenhauf to submit to nine examinations — one by each of the recommended specialists — despite the fact thát the petition clearly requested a total of only four examinations. Petitioner applied for a writ of mandamus in the Court of Appeals against the respondent, the District Court Judge, seeking to have set aside the order requiring his mental and physical examinations. The Court of Appeals denied mandamus, -one judge dissenting, 321 F. 2d 43. We granted certiorari to review undecided questions concerning the validity and construction of Rule 35. 375 U. S. 983. II. A threshold problem arises due to the fact that this case was in the Court of Appeals on a petition for a writ of mandamus. Although it is not disputed that we have jurisdiction to review the judgment of the Court of Appeals, 28 U. S. C. § 1254 (1) (1958 ed.), respondent urges that the judgment below dismissing the writ be affirmed on the ground that mandamus was not an appropriate remedy. “The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction . . . ,” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26. It is, of course, well settled, that the writ is not to be used as a substitute for appeal, Ex parte Fahey, 332 U. S. 258, 259-260, even though hardship may result from delay and perhaps unnecessary trial, Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 382-383; United States Alkali Export Assn. v. United States, 325 U. S. 196, 202-203; Roche v. Evaporated Milk Assn., supra, at 31. The writ is appropriately issued, however, when there is “usurpation of judicial power” or a clear abuse of discretion, Bankers Life & Casualty Co. v. Holland, supra, at 383. Here petitioner’s basic allegation was lack of power in a district court to order a mental and physical examination of a defendant. That this issue was substantial is underscored by the fact that the challenged order requiring examination of á defendant appears to be the first of its kind in any reported decision in the federal courts under Rule 35, and we have found only one such modern case in the state courts. The Court of Appeals recognized that it had the power to review on a petition for mandamus the basic, undecided question of whether a district court could order the mental or physical examination of a defendant. We agree that, under these unusual circumstances and in light of the authorities, the Court of Appeals had such power. The petitioner, however, also alleged that, even if Rule 35 gives a district court power to order mental and physical examinations of a defendant in an appropriate case, the District Court here exceeded that power in ordering examinations when petitioner’s mental and physical condition was not “in controversy” and no “good cause” was shown, both as expressly required by Rule 35. As we read its opinion, the Court of Appeals reached the “in controversy” issue and determined it adversely to petitioner. 321 F. 2d, at 51. It did not, however, reach the issue of “good cause,” apparently considering that it was not appropriate to do so on a petition for mandamus. Ibid. We recognize that in the ordinary situation where the sole issue presented is the district court’s determination that “good cause”- has been shown for an examination, mandamus is not an appropriate remedy, absent, of course, a clear abuse of discretion. See Bankers Life & Casualty Co. v. Holland, supra, at 383. Here, however, the petition was properly before the court on a substantial allegation of usurpation of power in ordering any examination of a defendant, an issue of first impression that called for the construction and application of Rule 35 in a new context. The meaning of Rule 35’s requirements of “in controversy” and “good cause” also raised issues of first impression. In our view, the Court of Appeals should have also, under these" special circumstances, determined the “good cause” issue, so as to avoid piecemeal litigation and to settle new and important problems. Thus we believe that the Court of Appeals had power to determine all of the issues presented by the petition for mandamus. Normally, wise judicial administration would counsel .remand of the cause to the Court of Appeals to reconsider this issue of “good cause.” However, in this instance the issue concerns the construction and application of the Federal Rules of Civil Procedure. It is thus appropriate for us to determine on the merits the issues presented and to formulate the necessary guidelines in this area. See Van Dusen v. Barrack, 376 U. S. 612. As this Court stated in Los Angeles Brush Corp. v. James, 272 U. S. 701, 706: “[W]e think it clear that where the subject concerns the enforcement of the . . . Rules which by law it is the duty of this Court to formulate and put in force . . . it may .... deal directly with the District - Court See McCullough v. Cosgrave, 309 U. S. 634. This is not to say, however, that, following the setting of guidelines in this opinion, any future allegation that the District Court was in error in applying these guidelines to a particular case makes mandamus an appropriate remedy. The writ of mandamus is not to be used when “the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction.” Parr v. United States, 351 U. S. 513, 520; see Bankers Life & Casualty Co. v. Holland, supra, at 382. m. Rule 35 on its face applies to all “parties,” which under any normal reading would include a defendant. Petitioner contends, however, that the application of the Rule to a defendant would be an unconstitutional invasion of his privacy, or, at the least, be a modification of substantive rights existing prior to the adoption of the Federal Rules of Civil Procedure and thus beyond the congressional mandate of the Rules Enabling Act. These same contentions were raised in Sibbach v. Wilson & Co., 312 U. S. 1, by a plaintiff in a negligence action who asserted a physical injury as a basis for recovery. The Court, by a closely divided vote, sustained the Rule as there applied. Both the majority and dissenting opinions, however, agreed that Rule 35 could not be assailed on constitutional grounds. Id., at 11-12, 17. The division in the Court was on the issue ■ of whether the Rule was procedural or a modification of substantive rights. The majority held that the Rule was a regulation of procedure and thus within the scope of the Enabling Act — the dissenters deemed it substantive. Petitioner does not challenge the holding in Sibbach as applied to plaintiffs. He contends, however, that it should not be extended to defendants. We can see no basis under the Sibbach holding for such a distinction. Discovery “is not a one-way proposition.” Hickman v. Taylor, 329 U. S. 495, 507. Issues cannot be resolved by a doctrine of favoring one class of litigants over another. We recognize that, insofar as reported cases show, this type of discovery in federal courts has been applied solely to plaintiffs, and that some early state cases seem to have proceeded on a theory that a plaintiff who seeks redress for injuries in a court of law thereby “waives” his right to claim the inviolability of his person. However, it is clear that Sibbach was not decided on any “waiver” theory. As Mr. Justice Roberts, for the majority, stated, one of the rights of a person “is the right not to be injured in one’s person by another’s negligence, to redress infraction of which the present action was brought.” 312 U. S., at 13. For the dissenters, Mr. Justice Frankfurter pointed out that “[o]f course the Rule is compulsive in that the doors of the federal courts otherwise open may be shut to litigants who. do not submit to such a physical examination.” Id., at 18. These statements demonstrate. the invalidity of any waiver theory. The chain of events leading to an ultimate determination on the merits begins with the injury of the plaintiff, an involuntary act on his part. Seeking court redress is just one step in this chain. If the plaintiff is prevented or deterred from this redress, the loss is thereby forced on him to the same extent as if the defendant were prevented or deterred from defending against the action. Moreover, the rationalization of Sibbach on a waiver theory would mean that a plaintiff has waived a right by exercising his right of access to the federal courts. Such a result might create constitutional problems. Also, if a waiver theory is espoused, problems would arise as to a plaintiff who originally brought his action in a state court (where there was no equivalent of Rule 35) and then has the case removed by the defendant to federal-court. We hold that Rule 35, as applied to either plaintiffs or defendants to an action, is free of constitutional difficulty and is within the scope of the Enabling Act. We therefore agree with the Court of Appeals that the District Court had power to apply Rule 35 to a party defendant in an appropriate case. IV. There remains the issue of the construction of Rule 35. We enter upon determination of this construction with the basic premise “that the deposition-discovery rules- are to be accorded a broad and liberal treatment,” Hickman v. Taylor, supra, at 507, to effectuate their purpose that “civil trials in the federal courts no longer need be carried on in' the dark.” Id., at 501. Petitioner contends that even if Rule 35 is to be applied to defendants, which we have determined it must, nevertheless it should not be applied to him as he was not a party in relation to Contract Carriers and National Lead — the movants for the mental and physical examinations — at the time the .examinations were sought. The Court of Appeals agreed with petitioner’s general legal proposition, holding that the person sought to be examined must be an opposing party vis-a-vis the movant (or at least one of them). 321 F. 2d, at 49. While it is clear that the person to be examined must be a party to the case, we are of the view that the Court of Appeals gave an unduly restrictive interpretation to that term. Rule 35 only requires that the person to be examined be a party to the “action,” not that he be an opposing party vis-a-vis the movant'. There is no doubt that Schlagen-hauf was a “party” to this “action” by virtue of the original complaint. Therefore, Rule 35 permitted examination of him (a party defendant) upon petition of Contract Carriers and National Lead (codefendants), provided, of course, that the other requirements of the Rule were met. Insistence that the movant have filed a pleading against the person to be examined would have the undesirable result of an unnecessary proliferation of cross-claims and counterclaims and would not be in keeping with the aims of a liberal, nontechnical application of the Federal Rules. See Hickman v. Taylor, supra, at 500-501. While the Court of Appeals held that petitioner was not a party vis-á-vis National Lead or Contract Carriers at the time the examinations were first sought, it went on to hold that he had become a party vis-á-vis National Lead by the time of a second order entered by the District Court and thus was a party within its rule. This second order, identical in all material respects with the first, was entered on the basis of supplementary petitions filed by National Lead and Contract Carriers. These petitions gave no new basis for the examinations, except for the allegation that petitioner’s mental and physical condition had been additionally put in controversy by the National Lead answer and cross-claim, which had been filed subsequent to the first petition for examinations. Although the filing of the petition for mandamus intervened between these two orders, we accept, for purposes of this opinion, the determination of the Court of Appeals that this second order was the one before it and agree that petitioner was clearly a party at this juncture under any test. Petitioner next contends that his mental or physical condition was not “in controversy” and “good cause” was not shown for the examinations, both as required by the express terms of Rulé 35. The discovery devices sanctioned by Part V of the Federal Rules include the taking of oral and written depositions (Rules 26-32), interrogatories to parties (Rule 33), production of documents (Rule 34), and physical and mental examinations of parties (Rule 35). The scope of discovery in each instance is limited by Rule 26 (b)’s provision that “the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action” (emphasis added), and by the provisions of Rule 30 (b) permitting the district court, upon motion, to limit, terminate, or otherwise control the use of discovery devices so as to prevent either their use in bad faith or undue “annoyance, embarrassment, or oppression.” It is notable, however, that in none of the other discovery provisions is there a restriction that the matter be “in controversy;” and only in Rule 34 is there Rule 35’s requirement that the movant affirmatively demonstrate “good cause.” This additional requirement of “good cause” was reviewed by Chief Judge Sobeloff in Guilford National Bank v. Southern R. Co., 297 F. 2d 921, 924 (C. A. 4th Cir.), in the following words: “Subject to . . . [the restrictions of Rules 26 (b) and 30 (b) and (d)], a party may take depositions and serve interrogatories without prior sanction of the court or even its knowledge of what the party is doing. Only if a deponent refuses to answer in the belief that the question is irrelevant, can the moving party request under Rule 37 a court order requiring an answer. “Significantly, this freedom of action, afforded a party who resorts to depositions and interrogatories, is not granted to one proceeding under Rules 34 and 35. Instead, the court must decide as an initial matter, and in every case, whether the motion requesting production of documents or the making of a physical or mental examination adequately demonstrates good cause: The specific requirement of good cause would be meaningless if good cause could be sufficiently established by merely showing that the desired materials are relevant, for the relevancy standard has already been imposed by Rule 26 (b). Thus, by adding the words ‘. . . good cause . . . the Rules indicate that there must be greater-showing of need under'Rules 34 and 35 than under the other discovery rules.” The courts of appeals in other cases have also recognized that Rule 34’s good-cause requirement is not a mere formality, but is a plainly expressed limitation on the use of that Rule. This is obviously true as to the “in controversy” and “good cause” requirements of Rule 35. They are not met by mere conclusory allegations of the pleadings — nor by mere relevance to the case — but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination. Obviously, what may be good cause for one type of examination may not be so for another. The ability of the movant to obtain the desired information by other means is also relevant. Rule 35, therefore, requires discriminating application by the trial judge, who must decide, as an initial matter in every case, whether the party requesting a mental or physical examination or examinations has adequately demonstrated the existence of the Rule’s requirements of “in controversy” and “good cause,” which requirements, as the Court of Appeals in this case itself recognized, are necessarily related. 321 F. 2d, at 51. This does not, of course, mean that the movant must prove his case on the merits in order to meet the requirements for a mental or physical examination. Nor does it mean that an evi-dentiary hearing is required in all cases. This may be necessary in some cases, but in other cases the showing could be made by affidavits or other usual methods short of a hearing. It does mean, though, that the movant must produce sufficient information, by whatever means, so that the district judge can fulfill his function mandated by the Rule. Of course, there are situations where the pleadings alone are sufficient to meet these requirements. A plaintiff in a negligence action who asserts mental or physical injury, cf. Sibbach v. Wilson & Co., supra, places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury. This is not only true as-to a plaintiff, but applies equally to a defendant who asserts his mental or physical condition as a defense to a claim, such as, for. example, where insanity is asserted as a defense to a divorce action. See Richardson v. Richardson, 124 Colo. 240, 236 P. 2d 121. See also Roberts v. Roberts, 198 Md. 299, 82 A. 2d 120; Discovery as to Mental Condition Before Trial, 18 J. Am. Jud. Soc. 47 (1934). Here, however, Schlagenhauf did not assert his mental or physical condition either in support of or in defense of a claim. His condition was sought to be placed in issue by other parties. Thus, under the principles discussed above, Rule 35 required that these parties make an affirmative showing that petitioner’s mental or physical condition was in controversy and that there was good cause for the examinations requested. This, the record plainly shows, they failed to do. The only allegations in the pleadings relating to this subject were the general conelusory statement in Contract Carriers’ answer to the cross-claim that “Schlagenhauf was not mentally or physically capable of operating” the bus at the time of the accident and the limited allegation in National Lead’s cross-claim that, at the time of the accident, “the eyes and vision of . . . Schlagenhauf was [sic] impaired and deficient.” The attorney’s affidavit attached to the petition for the examinations provided: “That . . . Schlagenhauf, in his deposition . . . admitted that he saw red. lights for 10 to 15 seconds prior to a collision with a semi-tractor trailer unit and yet drove his vehicle on without reducing speed and without altering the course thereof. “The only eye-witness to this accident known to this affiant . . . testified that immediately prior to the impact between the bus and truck that he. had also been approaching the truck from the rear and that he had clearly seen the lights of the truck for a distance of three-quarters to one-half mile to the rear thereof. “. . . Schlagenhauf has admitted in his deposition . . . that he was involved in a [prior] similar type rear end collision . . . .” This record cannot support even the corrected order which required one examination in each of the four specialties of internal medicine, ophthalmology, neurology, and psychiatry. Nothing in the pleadings or affidavit would afford a basis for a belief that Schlagenhauf was suffering from a mental or neurological illness warranting wide-ranging psychiatric or neurological examinations. Nor is there anything stated justifying the broad internal medicine examination. The only specific allegation made in support of the four examinations ordered was that the “eyes and vision” of Schlagenhauf were impaired. Considering this in conjunction with the affidavit, we would be hesitant to set .aside a visual examination if it had been the only one ordered. However, as the case must be remanded to the District .Court because of the other examinations ordered, it would be appropriate for the District Judge to reconsider also this order in light of the guidelines set forth in this opinion. The Federal Rules of Civil Procedure should be liberally construed, but they should not be expanded by disregarding plainly expressed limitations. The “good cause” and “in controversy” requirements of Rule 35 make it very apparent that sweeping examinations of a party who has not affirmatively put into issue his own mental or physical condition are not to be automatically ordered merely because the person has been involved in an accident — or, as in this case, two accidents — and a general charge of negligence is lodged. Mental and physical examinations are only to be ordered upon a discriminating application by the district judge of the limitations prescribed by the Rule. To hold otherwise would mean that such examinations could be ordered routinely in automobile accident cases. The plain language of Rule 35 precludes such an untoward result. Accordingly, the judgment of the Court of Appeals is vacated and the case remanded to the District Court to reconsider the examination order in light of the guidelines herein formulated and for further proceedings in conformity with this opinion. Vacated and remanded. In all the pleadings McCorkhill was joined with Contract Carriers. For simplicity, both will be referred to as Contract Carriers. These contentions were renewed by written “Objections and Brief” at the time the corrected order described in note 3 was entered by the District Court. After the Court of Appeals denied mandamus, the order was corrected by the District Court to reduce the number of examinations to the four requested. We agree with respondent that the issue of that error has become moot. However, the fact that the District Court ordered nine examinations is not irrelevant, together with all the other circumstances, in the consideration of whether the District Court gave to the petition for mental and physical examinations that discriminating application, which Rule 35 requires. See pp. 119-122, infra. 28 U. S. C. § 1651 (a) (1958 ed.): “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable' to the usages and principles of law.” But see Dinsel v. Pennsylvania R. Co., 144 F. Supp. 880 (D. C. W. D. Pa.), where this issue was considered but the District Court, after consideration of the facts, declined to order an examination. Harabedian v. Superior Court, 195 Cal. App. 2d 26,15 Cal. Rptr. 420 (Dist. Ct. App.). Kiley, J., dissented on this point, concluding that the record disclosed “no adequate basis” for the District Court’s exercise of its discretion. 321 F. 2d, at 52. It is not necessary to determine whether or not a refusal by the Court of Appeals to issue the writ, after consideration of the good-cause issue, .would have been reversible error. The issuance of this extraordinary writ is itself generally a matter of discretion. See La Buy v. Howes Leather Co., 352 U. S. 249, 260; Bankers Life & Casualty Co. v. Holland, supra; 6 Moore, Federal Practice, ¶ 54.10[4] (1953 ed.). 28 U. S. C. §2072. (1958 ed.), which provides that the Rules “shall not abridge, enlarge or modify any substantive right . . . .” For a discussion of these cases, see 8 Wigmore, Evidence, § 2220 (SlcNaughton Rev. ed. 1961). See also 3 Ohlinger’s Federal Practice 490 (1964 ed.). We have already pointed out, pp. 106-108, supra, that at the time of the first petition, Sehlagenhauf was a named defendant in the original complaint but was not a named cross-defendant in any pleadings filed by Contract Carriers or National Lead. Although petitioner was an agent of Greyhound, he was himself a party to the action. He is to be distinguished from one who is not a party but is, for example, merely the agent of a party. This is not only clear in the wording of the Rule, but is reinforced by the fact that this Court has never approved the Advisory Committee’s proposed amendment to Rule 35 which would include within the scope of the Rule “an agent or a person in the custody or under the legal control of a party.” Advisory Committee on Rules for Civil Procedure, Report of Proposed Amendments, 41-43 (1955). It is not now necessary to determine to what extent, if any, the term “party” includes one who is a “real party in interest” although not a named party to the action. Cf. Beach v. Beach, 72 App. D. C. 318, 114 F. 2d 479. As stated in note 3, supra, thereafter a third order was entered which reduced the number of examinations to the four requested. TTauger v. Chicago, R. I. & Pac. R. Co., 216 F. 2d 501 (C. A. 7th Cir.); Martin v. Capital Transit Co., 83 U. S. App. D. C. 239, 170 F. 2d 811; see Mitchell v. Bass, 252 F. 2d 513 (C. A. 8th Cir.) ; Williams v. Continental Oil Co., 215 F. 2d 4 (C. A. 10th Cir.); Alltmont v. United States, 177 F. 2d 971 (C. A. 3d Cir.). See note 3, swpra. Moreover, it seems clear that there was no compliance with Rule 35’s requirement that the trial judge delineate the “conditions, and scope” of the examinations. Here the examinations were ordered in very broad, general areas. The internal medicine examination might for example, at the instance of the movant or its recommended physician extend to such things as blood tests, electrocardiograms, gastro-intestinal and other X-ray examinations. It is hard to conceive how some of these could be relevant under any possible theory of the case. Cf. Harabedian v. Superior Court, 195 Cal. App. 2d 26, 15 Cal. Rptr. 420 (Dist. Ct. App.). This case should be compared with Laubscher v. Blake, 7 Cal. App. 2d 376, 46 P. 2d 836 (Dist. Ct. App.). From July 1, 1963, through June 30, 1964, almost 10,000 motor vehicle personal injury cases were filed in the federal district courts. Administrative Office of the United States Courts, Annual Report of the Director, C2 (1964). In the Nation at large during 1963, there were approximately 11,500,000 automobile accidents, involving approximately 20,000,000 drivers. National Safety Council, Accident Facts,'40 (1964 ed.). Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable 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. Jerald Dennis KEARNS, Plaintiff-Appellant, v. Duane SHILLINGER; Patricia Burroughs; A.K. Kirsch, Defendants-Appellees. No. 87-1296. United States Court of Appeals, Tenth Circuit. July 20, 1987. Jerald Dennis Kearns, pro se. Bruce A. Salzburg of Freudenthal, Salzburg, Bonds & Rideout, P.C., Cheyenne, Wyo., for defendants-appellees. Before LOGAN and TACHA, Circuit Judges, and O’CONNOR, District Judge. The Honorable Earl E. O’Connor, Chief Judge, United States District Court for the District of Kansas, sitting by designation. PER CURIAM. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.-2. The cause is therefore ordered submitted without oral argument. This is an appeal from an order of the United States District Court for the District of Wyoming denying plaintiff’s motion for appointment of a special master. The issue on appeal is whether the district court’s order is final such that this court has jurisdiction to consider this appeal. The grant of appellate jurisdiction is limited to appeals from final decisions of district courts. 28 U.S.C. § 1291; Century Laminating, Ltd. v. Montgomery, 595 F.2d 563, 565 (10th Cir.), cert. dismissed, 444 U.S. 987, 100 S.Ct. 516, 62 L.Ed.2d 417 (1979). A judgment is final and appealable when a district court enters a decision which ends the litigation, leaving nothing to be done but execution of the judgment. Lamp v. Andrus, 657 F.2d 1167, 1168 (10th Cir.1981). To be final, the judgment must fully inform the losing party of the extent of the remedy afforded against him. Id. at 1168-69. Exception to the final decision rule is permitted for cases which finally determine rights separable from and collateral to rights asserted in the action, which are too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). Also, 28 U.S.C. § 1292(b) permits a district court judge to certify certain orders for appeal, and the court of appeals in its discretion may permit appeal. The district court’s order denying plaintiff’s motion for appointment of a special master is not a final, appealable order. Cf. Petition of Trustees of Joint Welfare Fund of Int’l Union of Operating Eng’rs, Local Unions 14, 14B, 15, 15A, 15C, 15D, 549 F.2d 871 (2d Cir.1977) (district court order denying motion to modify prior order which had directed appointment of a special master to divide joint pension fund was not a final, appealable order); Williams v. Maxwell, 396 F.2d 143 (4th Cir.1968) (orders of district court approving preliminary report of master and referring case for findings on other issues do not contain certification required by 28 U.S.C. § 1292(b) to facilitate an interlocutory appeal); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2615 (1971) (an order of reference to a master is interlocutory and not appealable). The order neither falls within the established guidelines for exception to the final judgment rule nor was certified pursuant to § 1292(b). We conclude that we do not have jurisdiction to consider this appeal. The appeal is DISMISSED for lack of jurisdiction. The mandate shall issue forthwith. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. John McVICKER, Plaintiff-Appellee, and George F. Alger Company, Intervenor Plaintiff-Appellee, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant. No. 14574. United States Court of Appeals Sixth Circuit. Aug. 29, 1962. Robert A. Straub, Detroit, Mich., for defendant-appellant, James R. Gannon, Detroit, Mich., on the brief. Harry M. Philo, Detroit, Mich., for plaintiff-appellee, Goodman, Crockett, Eden, Robb & Philo, Detroit, Mich., on the brief. Kenneth C. Davies, Detroit, Mich., for intervenor-plaintiff-appellee, Davies & Moesta, Detroit, Mich., on the brief. Before MILLER, Chief Judge, O’SULLIVAN, Circuit Judge, and BOYD, District Judge. SHACKELFORD MILLER, Jr., Chief Judge. This action was filed in the District Court by the plaintiff-appellee against the Chesapeake and Ohio Railway Company to recover damages for personal injuries suffered by him when a tractor trailer which he was driving was hit at a railroad crossing on a public highway in Indiana by a train being operated by the defendant. The parties will be referred to as they were in the District Court. The material facts leading up to the accident are briefly stated as follows. Plaintiff was employed by George F. Alger Company as a truck driver and was assigned to a daily trip from Chicago, Illinois, to Three Rivers, Michigan, and return, which was a normal ten-hour run. He had been so employed for approximately two years before the accident. In making this run plaintiff was required to use Highway U. S. 20 in each direction. U. S. 20 is a paved four-lane highway, approximately forty feet wide, running in a generally eastwardly and westwardly direction a few miles south of Michigan City, Indiana. Defendant Railroad Company’s tracks, running from Grand Rapids, Michigan, to Chicago, Illinois, consist of a single set of tracks which run in a generally north-eastwardly and southwesterly direction and cross U. S. 20 near Michigan City. Defendant maintained standard flasher signal lights at the crossing about ten feet back from the rail. There was also erected at the crossing at a point before reaching the flasher signal a standard advance highway warning sign advising the traveling public that a railroad crossing was ahead. There were no gates or watchman at the crossing. Plaintiff left Chicago at 9 A.M. on Saturday, February 15, 1958, driving a tractor trailer to Three Rivers, Michigan. At Three Rivers he dropped the trailer with the freight from Chicago and picked up a trailer to take back to Chicago. A heavy snow storm, characterized by at least one witness as a blizzard, commenced some time on Saturday, February 15, and continued with such severity that after it had subsided on Monday it was reported as the worst storm in the history of Michigan City. The brunt of the storm was confined to an area around Michigan City approximately 25 miles long and from 5 to 7 miles wide. About 9 o’clock that night plaintiff had crossed the Michigan State line into Indiana. He stopped at the Cloverleaf Garage, which was on U. S. 20, where his company had a charge account and where sleeping facilities were available. He called the company’s dispatcher in Chicago and told him that the weather was bad and that he was going to get off the highway. The dispatcher told him, “Tomorrow, when you see that the weather is fit and you feel that you can make it,, you continue on your way.” Plaintiff' stayed at the Cloverleaf Garage until' about 10 o’clock Sunday morning. After breakfast he watched the traffic for a little while and when he saw that the traffic was moving he decided to leave. The Cloverleaf Garage was about a mile- and a half from the scene of the accident. About four feet of snow had fallen, but a bulldozer cleared a way so that the trucks could get out of the truck yard on to the highway. It was- still snowing and blowing, and as described by the plaintiff “you couldn’t see your hand in front of you at times.” There was heavy traffic moving very slowly on U. S. 20. It took the plaintiff approximately two hours and fifteen minutes to travel the one and one-half miles to the-crossing. Plaintiff finally reached a point where he could go no further because-traffic ahead of him as far as could be seen had completely stopped due to a truck getting crossways on U. S. 20. Plaintiff came to a final stop with his. trailer about half way over the railroad track, in which position it remained until struck by the defendant’s train at least some ten or fifteen minutes later. During this period of time the plaintiff remained in the cab of his trailer. He testified that because of the heavy snow and weather conditions he did not seethe railroad track and did not know he-was on it, nor did he see any of the warning signals at the track or hear the-whistle or approach of the train. Defendant’s train left Grand Rapids, Michigan, for Chicago, Illinois, on the-morning of February 16, 1958. The train consisted of one diesel engine and forty-five freight cars. There was no storm or snow conditions at Grand Rapids, Michigan, at that time. It made a stop at New Buffalo, Michigan, where there was one or two inches of snow. As it proceeded westwardly the weather conditions became increasingly worse, until the train was running through the storm in the Michigan City area. As it approached the crossing it was running at a speed of approximately 35 miles per hour and sounded its crossing whistle. The headlight on the train was lighted and on bright. The flasher signals at the crossing were in operation. On account of the poor visibility, plaintiff’s trailer standing over the crossing was first observed at a distance of 250 to 300 feet northeast of the crossing, at which time the emergency brakes were applied. In answer to the question why he couldn’t see it sooner, defendant’s engineer said, “Well, it was so blustery you just couldn’t see, so much snow and blowing that you just couldn’t see any further than that. And then it would clear for a second and then again you couldn’t see.” The conductor testified that visibility was from zero to half a mile, depending on how the wind was blowing. He said, “ * * * the wind would let up and you could see, and all of a sudden, swoosh, she would come, and you couldn’t see 50 feet.” He estimated the temperature at about zero. The train struck the trailer and continued on until it stopped with the engine located approximately 300 feet south of U. S. 20. The George F. Alger Company intervened in the suit as an additional plaintiff. The defendant, in addition to filing answers denying negligence on its part and alleging contributory negligence on the part of the plaintiff, asserted a counterclaim for damages sustained by it as a result of the accident. The jury returned a verdict in favor of the plaintiff in the amount of $25,000.00 and in favor of the intervenor, the George F. Alger Company, in the amount of $10,479.20. Defendant’s motion to set aside the jury verdicts and enter judgments in its behalf and to also enter judgment in its behalf on its counterclaim were overruled. This appeal followed. The defendant contends that the District Judge was in error in overruling its motion for a directed verdict, made at the close of plaintiff’s case and renewed at the close of the whole case, in that (1) the evidence was insufficient to take the case to the jury on the issue of defendant’s negligence, and (2) the uncontradicted evidence showed that the plaintiff was guilty of contributory negligence as a matter of law.* Since jurisdiction is based upon diversity of citizenship and the amount involved, the law of Indiana, in which state the collision occurred is applicable. With respect to the negligence of the defendant, the evidence was uncontradicted that there were crossarm warning signs and flasher lights at the crossing, the flasher lights were operating properly, the headlight of the engine was on and the whistle was properly blown for the crossing, thus constituting compliance with all statutory requirements. The speed of the train was not in excess of any statutory provision. However, we do not agree with defendant’s contention that this, as a matter of law, removed the question of defendant’s negligence from the case. Although speed, in and of itself, is not negligence under Indiana law, New York Cent. Ry. Co. v. Powell, 221 Ind. 321, 47 N.E.2d 615, we think that speed, considered in connection with certain existing circumstances, may be evidence of negligence. For example, driving an automobile thirty-five miles an hour on a super highway at a time when traffic is light would not be considered negligence, but the driving of that same automobile at that same speed through the downtown streets of any metropolitan city at the peak hour of late afternoon trafile, would certainly be evidence of negligence, if not negligence as a matter of law. Compliance with all statutory requirements will not in all cases, under any circumstances, absolve one of negligence. Grand Trunk Railway Co. of Canada v. Ives, 144 U.S. 408, 419-422, 427, 12 S.Ct. 679, 36 L.Ed. 485; Freeman v. Railway Co., 74 Mich. 86, 41 N.W. 872, 3 L.R.A. 594. As was said by the Supreme Court in the Grand Trunk Railway Co. case (144 U.S. at p. 417, 12 S.Ct. at p. 682), “There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms ‘ordinary care,’ ‘reasonable prudence,’ and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case, may, under different surroundings and circumstances, be gross negligence. * * * When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court.” In the present case, we think the District Judge was not in error in leaving it to the jury to decide whether it was negligence on the part of the defendant to operate its train at 35 miles an hour over a heavily traveled highway crossing under such extreme weather conditions as made it difficult for a motorist to avoid traffic congestion and extremely difficult for him to see the statutory warning signals, which under ordinary conditions would give adequate warning of the existence of the crossing. With respect to the issue of contributory negligence, we think it is clear under Indiana law and under the usual principles of contributory negligence that unless plaintiff can show a valid excuse for placing his trailer across the railroad tracks and remaining in the tractor until it was struck, he was guilty of contributory negligence as a matter of law, which would bar a cause of action on his part. New York Cent. R. Co. v. Casey, 214 Ind. 464, 14 N.E.2d 714, 717; Chesapeake & O. Ry. Co. v. Williams, 114 Ind.App. 160, 51 N.E.2d 384; Moss v. Pennsylvania R. Co., 146 F.2d 673, 677-678, C.A.7, cert. denied, 325 U.S. 861, 65 S.Ct. 1200, 89 L.Ed. 1982; Kallmerten v. Cowen, 111 F. 297, C.A.6. In the Moss case, which involved Indiana law, the Court pointed out that the accident was caused because the plaintiff failed to look and therefore failed to see the oncoming train. It said, in reversing a judgment against the railroad company, “He should have looked. He must be charged with the information which he would have received had he looked.” Plaintiff seeks to avoid this fundamental rule by claiming that on account, of the extreme weather conditions, he could not see the warning signs and did not know he was on the railroad track. His own testimony was that if he had known he was on the railroad track he could have pulled forward and to the side of the stopped cars directly in front of him and pulled the trailer off of the track. The question resolves itself into' whether his failure, because of the extreme weather conditions to see the warning signs and to realize that the trailer was standing on the track excused him from the performance of his duty to look out for his own safety. In considering this question, it should be kept in mind that the severe weather conditions which the plaintiff encountered were not of the kind that came upon him unexpectedly and which could not be avoided. Plaintiff was in a place of safety, which he voluntarily left to start his journey, well knowing the hazardous, conditions he would encounter. He knew that at least four feet of snow had fallen on the highway and that it was snowing and blowing when he started out. He did not know whether the highway had been plowed. He needed the assistance of a bulldozer to get out of the parking lot. He assisted a friend whose machine had become stuck in the snow. In doing so, he became stuck himself. Nevertheless, he drove his tractor and trailer on to the highway to make the trip back to Chicago. Plaintiff testified that the weather conditions were “extremely hazardous,” that it was snowing so hard and blowing so hard he couldn’t see any highway signs at all, or even a turn-off road not far from the scene of the accident; that when he pulled on to U. S. 20 the traffic was just “stop and go;” that “you couldn’t see your hand in front of you at times; and it would leave off and come on again, but you could never see over twenty-five or thirty-five feet;” that for a period of about two years he had been driving over this same highway and over this same crossing “just about every day;” that he was familiar with the general vicinity and knew there was a railroad track “in the area,” although he didn’t know exactly where it was; but as he was sitting in the truck, raising the window up and down he saw a crossarm but didn’t know whether it was in front of him or in back of him, or if the track was in front of him. In answer to the question, “How long before the moment of impact did you see the crossarms for the first time?”, he said, “Oh, it just seemed like a minute. It seemed like a minute, and I took my eyes off that to look around, and that it (sic) just before the crash took place.” There was testimony about another motorist who about five or ten minutes before the accident realized he was crossing the track and would not stop until he cleared them. Mr. and Mrs. Rochman were in a car which was in the stalled line of traffic ahead of the plaintiff. Mrs. Rochman, who was seated in the right rear seat with the window open, heard the whistle or the bell and was conscious that a train was coming. She told her husband that the plaintiff’s truck was on the crossing behind them. Mr. Roch-man, who had been in and out of his car during the forty-five or more minutes before the accident, heard the whistle, saw the approaching train and after assuring himself that his own car was off the track started running and waving to the plaintiff to get out of his cab until, for reasons of his own safety, he turned around and ran- away from the place of impact. There was uncontradicted evidence that the whistle was blowing for approximately a minute before the accident and that the flasher signals were on for a little less than a minute. Two truck drivers, who were parked behind the plaintiff and were sitting in the cab of one of the trucks, heard the whistle, got out of the cab and saw the flasher signals. One of them testified that he heard the whistle approximately sixty seconds before the accident and saw the approaching train probably thirty seconds before the accident. In Reynolds v. Baltimore & Ohio R. Co., 185 F.2d 27, C.A.7, involving Indiana law with respect to a collision between a motorist and a railroad locomotive, the Court held that the plaintiff was guilty of contributory negligence, barring recovery as a matter of law, in failing to see and heed highway signs warning of the crossing and to operate and control his automobile so that he could stop it within the range of his vision. In that case it was contended that it was dark, the weather was drizzly and misty and visibility was poor. The Court said, “Indiana cases hold that it is negligence as a matter of law for a motorist to operate his vehicle on a highway under such conditions that he cannot see and heed warning signs erected and maintained for the protection of persons using the highways,” citing New York Cent. R. Co. v. Casey, supra, 214 Ind. 464, 14 N.E.2d 714, and Opple v. Ray, 208 Ind. 450, 195 N.E. 81. The Court quoted with approval the following statement from Cleveland, C. C. & L. R. Co. v. Houghland, 44 Ind.App. 73, 85 N.E. 369, 88 N.E. 623, “If rain interfered with the normal opportunity to observe these signals or danger, it was his duty to take cognizance of the fact and to use his senses in a manner reasonably calculated to inform him of approaching danger. He was not free to drive blindly into a place of known danger.” See also: Pitcairn v. Honn, 109 Ind.App. 428, 32 N.E.2d 733; Cummins v. Erie R. Co., 63 F.2d 816, C.A.6. Although plaintiff knew there was a railroad crossing in the area in which he was, he stayed in his cab and made no effort to ascertain where it was or if it was a possible source of danger. Drivers of other cars, stalled at the same location, were able to get out of their machines and did so, and in so doing were apprised of the crossing and of the approaching train. See: Miller v. Baltimore & O. R. Co., 139 F.2d 219, C.A.3; Horn v. Baltimore & O. R. Co., 54 F. 301, 306, C.A.6. We are of the opinion that the District Judge should have sustained defendant’s motion for a directed verdict on the ground that plaintiff was contributorily negligent as a matter of law. The judgment is reversed and the action remanded to the District Court with instructions to dismiss the actions of the plaintiff and the intervenor-plaintiff and the counterclaim of the defendant. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_respond2_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". ALEXANDER SMITH & SONS CARPET CO. v. HERRICK et al. No. 454. Circuit Court of Appeals, Second Circuit. July 13, 1936. Burlingame, Nourse & Pettit, of New York City, and William J. Wallin, of Yonkers, N. Y. (Arthur E. Pettit, of New York City, of counsel), for appellant. Charles Fahy, Gen. Counsel, National Labor Relations Board, and Robert B. Watts, Associate Gen. Counsel, both of Washington, D. C., and Robert S. Erdahl, for appellees. Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges. PER CURIAM. Appellant is a carpet manufacturer with its sole manufacturing plant in Yonkers, N. Y., to which raw materials are shipped from outside New York State and from which appellant ships some finished products to customers outside New York State. The prayer in this suit is that appellees be enjoined from enforcement of the National Labor Relations Act (29 U.S.C.A. § 151 et seq.) against the plaintiff, and from the further prosecution of, or the holding of hearings on, a complaint charging plaintiff with engaging in unfair labor practices affecting commerce within section 8 (1-3) of the act (29 U.S.C.A. § 158 (1-3) by discharging employees for union activity and by coercing employees in their selection of representatives for collective bargaining. Some of the employees are on strike. For the reasons stated in E. I. Du Pont De Nemours & Co. v. Boland (C.C.A.) 85 F.(2d) 12, decided this day, the appellant has not shown that any irreparable injury will be suffered if this injunction is denied, and under the provisions of the National Labor Relations Act, it has an adequate, complete, and exclusive remedy at law on a petition to the proper court for a subpoena, or for the enforcement or review of any order the board may enter. Decree affirmed. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_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 position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Irvan MULLINS, Appellant, v. UNIROYAL, INC. and Tim Neville, as Manager, Appellees. No. 86-1117. United States Court of Appeals, Eighth Circuit. Submitted Oct. 13, 1986. Decided Nov. 13, 1986. Walter M. Calinger, Red Oak, Iowa, for appellant. Soren S. Jensen, Omaha, Neb., for appel-lees. Before LAY, Chief Judge, FAGG, Circuit Judge, and LARSON, Senior District Judge. The HONORABLE EARL R. LARSON, Senior United States District Judge for the District of Minnesota, sitting by designation. FAGG, Circuit Judge. Irvan Mullins brought this action against his former employer and its manager, Uniroyal, Inc. and Tim Neville, claiming he was discharged in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. The district court found Mullins ultimately failed to prove he had been discharged because of his age. We affirm. Mullins worked at the Uniroyal plant in Red Oak, Iowa, for ten years. The plant manufactured hoses. Mullins began there as the distribution/scheduling supervisor and traffic manager. Uniroyal later promoted him to other management positions. In early 1982 Uniroyal eliminated Mullins’ position at the plant. The company then offered him a choice between severance pay and returning to the position he originally held with Uniroyal. Mullins chose to stay with Uniroyal. In once again serving as distribution/scheduling supervisor, Mullins was responsible for scheduling production in the plant and maintaining sufficient raw materials for that production. Since he had last held this position, however, the plant’s production levels and overall operations intensified, making the position more demanding. In June 1982, Uniroyal notified Mullins that he was being terminated due to poor performance. Although the company relieved Mullins of his supervisory responsibilities, it permitted him to work in a different capacity for seven more months to vest his pension. Mullins was fifty-eight years old at the time he was discharged. Mullins then filed this age discrimination action. At trial he made a prima facie showing of discrimination. Uniroyal responded by producing evidence that it had discharged Mullins for legitimate, nondiscriminatory reasons. Based upon the record as a whole, the district court found Mullins failed to carry his ultimate burden of proving he had been discriminated against because of his age. On appeal Mullins challenges the district court’s findings. In reviewing the district court’s determinations made after trial, we focus upon the question whether Uniroyal’s actions were discriminatory. See Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1168 (8th Cir.1985); see also United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983). The district court’s determination that Mullins failed to show Uniroyal’s actions were discriminatory is a finding of fact. We cannot reverse the district court’s factual determination unless we conclude it is clearly erroneous. See Fed. R.Civ.P. 52(a). ‘“[A] finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)); see Garlington v. St. Anthony’s Hosp. Ass’n, 792 F.2d 752, 754 (8th Cir.1986). It is not sufficient that we may have decided the case differently were we to review the evidence de novo. See Anderson, 470 U.S. at 573-74, 105 S.Ct. at 1511-12. Here, several years had passed since Mullins first held the distribution/scheduling supervisor position. The responsibilities and pressures of this position had vastly increased. Mullins’ difficulty in handling this position during his second tenure is evidenced by the numerous “incident reports” that were filed by Mullins’ supervisors. The reports detail his errors over the months before Uniroyal decided to terminate him. For example, Mullins issued an incorrect order for cutting hose, submitted an incorrect production schedule to the secretary for processing, exceeded expectations for overtime, and most importantly, failed to obtain adequate supplies for a scheduled Saturday work detail and Uniroyal management was forced to cancel the extra work day. To support his claim of age discrimination, Mullins points to a reference to his “relatively advanced working age” made by Uniroyal’s Board of Benefits and Awards. Mullins takes the statement out of context. As the district court noted, the Board was expressing its concern that Mullins have a vested pension with some employer. Thus, rather than making his termination immediate, Uniroyal permitted Mullins to work seven more months in order to obtain a vested pension with the company. Mullins argues we should remand this case to the district court with instructions to apply the principles stated in Bibbs v. Block, 778 F.2d 1318 (8th Cir.1985) (en banc). Mullins essentially contends he established that age was a “discernible factor” in Uniroyal’s decision to terminate him when he made a prima facie showing of discrimination under the pattern of proof set out in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Therefore, he asserts that the company’s decision was based on a “mixed motive.” Mullins maintains that under Bibbs and Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the district court should have required the employer to show by a preponderance of the evidence that, notwithstanding age as a factor in the employment decision, Mullins was discharged for a nondiseriminatory reason. Mullins’ reliance on Bibbs is misplaced. If we were to accept Mullins’ argument, we in effect would overrule the well-established principles set out in Burdine. As stated in Burdine, when a prima facie case is shown by the employee, the employer’s burden is only to come forward with evidence of a nondiseriminatory reason for the employment decision. The burden of persuasion always remains on the employee to show the reason given by the employer is pretextual. See Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. Here, Mullins suggests that once a plaintiff-employee proves a Burdine prima facie case the court is faced with a mixed motive situation and the burden of persuasion shifts to the employer. Under his argument, every pri-ma facie case would become a mixed motive case. That position is clearly incorrect. Bibbs applies only when the employee establishes that the employment decision was based on a mixed motive. For example, a mixed motive case under Bibbs exists when the defendant-employer concedes that age was a discernible factor, but not a motivating one, for the employment decision. Bibbs would also apply absent an employer’s concession when the trial court finds that a discriminatory reason was a discernible factor in the employer’s decision-making process. Nevertheless, a mixed motive case does not exist simply because a discriminatory reason might be inferred when the employee establishes a prima facie case. In the present case, the district court determined Uniroyal fired Mullins as a purely business decision. Age was not a factor, and thus, Bibbs was not applicable. Further, we do not inquire into the soundness of an employer’s business decision. The ADEA is not intended for that purpose. See Bell v. Gas Serv. Co., 778 F.2d 512, 515 (8th Cir.1985); Jorgensen v. Modern Woodmen of Am., 761 F.2d 502, 505 (8th Cir.1985); see also O’Connor v. Peru State College, 781 F.2d 632, 638 (8th Cir.1986). After thoroughly reviewing the record, we conclude the district court’s finding of no discrimination is not clearly erroneous. Accordingly, the district court’s judgment is affirmed. Affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
sc_authoritydecision	D	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. CALIFORNIA v. TEXAS et al. No. 88, Orig. Decided June 14, 1982 Per Curiam. In this motion, California seeks leave to file a complaint against Texas under this Court’s original jurisdiction. The proposed complaint asks us to decide whether Howard Hughes was domiciled in California or Texas at the time of his death. The decision about domicile could determine which State is entitled to levy death taxes on the estate. This motion renews the one which California made in November 1977. At that time, we denied leave to file. Cali fornia v. Texas, 437 U. S. 601 (1978). Following the suggestion of four Justices who concurred in California v. Texas, the estate then sought a determination of Hughes’ domicile by filing an interpleader action under 28 U. S. C. § 1335 in Federal District Court. This motion for leave to file a complaint accompanied the petition for certiorari in Cory v. White, ante, p. 85, in which California taxing officials requested review of the decision of the Fifth Circuit holding that the Federal Interpleader Act provided a jurisdictional basis for resolving the dispute. We granted certiorari in Cory v. White, 452 U. S. 904 (1981), and today have held that the Federal Interpleader Act, 28 U. S. C. § 1335, does not give a federal district court jurisdiction to resolve inconsistent death tax claims by the officials of two States. See ante, at 91. We reached that decision because the suit is barred by the Eleventh Amendment under Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937). We now also conclude that California’s motion for leave to file should be granted. First, California’s bill of complaint states a “controversy” between California and Texas within the exclusive jurisdiction of this Court under 28 U. S. C. § 1251(a). It is undisputed that each State’s authority to impose a death tax on the intangibles owned by a decedent depends on the decedent’s having been a domiciliary of that State. Also, it is the law of each State that an individual has but one domicile. Thus only one State is entitled to impose death taxes; the outcome of this action would determine which State is privileged to tax. The other would be barred from doing so. It is apparent, therefore, that California and Texas are asserting inconsistent claims and are undeniably adversaries in this action. Moreover, in its Memorandum in Support of Motion to File Bill of Complaint 6, California asserts: “The effective rate of tax in California on all amounts in excess of $400,000 is 24% (see Cal. Rev. & Tax Code § 13406(g)); the effective rate of tax in Texas (including the so-called ‘pick-up tax’) on amounts exceeding $1,000,000 is approximately 16% (see Tex. Tax Code Ann. Arts. 14.05, 14.12); and the federal estate tax on amounts in excess of $10,000,000 is 77%, less a credit of 16% for state death taxes (see 26 U. S. C. §§2001, 2011). The combined marginal rate of tax is therefore 101%.” (Footnote omitted.) California adds that interest on the unpaid taxes will further deplete the estate. Although these allegations have not been proved, they are sufficient under Texas v. Florida, 306 U. S. 398 (1939), to characterize this case as a “controversy” between two States within the meaning of 28 U. S. C. § 1251(a). In Texas v. Florida, supra, this Court, raising the issue sua sponte, held that it had original jurisdiction over a suit “brought to determine the true domicile of decedent as the basis of rival claims of four states for death taxes upon his estate.” 306 U. S., at 401. None of the States had reduced its claims to judgments, but all conceded that the estate was insufficient to satisfy the total amount of taxes claimed. The Court compared the suit to a bill in the nature of inter-pleader, which permits a plaintiff threatened with rival claimants to the same debt or legal duty to bring an interpleader action before the institution of the independent suits. On the basis of this analogy, the Court concluded: “When, by appropriate procedure, a court possessing equity powers is . . . asked to prevent the loss which might otherwise result from the independent prosecution of rival but mutually exclusive claims, a justiciable issue is presented for adjudication which because it is a recognized subject of the equity procedure which we have inherited from England, is a ‘case’ or ‘controversy,’ within the meaning of the Constitutional provision- and when the case is one prosecuted between states, which are the rival claimants, and the risk of loss is shown to be real and substantial, the case is within the original jurisdiction of this Court conferred by the Judiciary Article.” Id., at 407-408. As Justice Stewart wrote when California first petitioned this Court to resolve its dispute with Texas over Hughes’ estate: “The facts alleged in the complaint now before us are indistinguishable in all material respects from those on which jurisdiction was based in Texas v. Florida.” California v. Texas, 437 U. S., at 606 (concurring opinion). We agree. Thus, this dispute is a controversy between two States within our original jurisdiction under 28 U. S. C. § 1251(a). Second, it is appropriate to exercise our jurisdiction in this case. A determination that this Court has original jurisdiction over a case, of course, does not require us to exercise that jurisdiction. We have imposed prudential and equitable limitations upon the exercise of our original jurisdiction. As we explained in Illinois v. City of Milwaukee, 406 U. S. 91, 93-94 (1972): “We construe 28 U. S. C. § 1251(a)(1), as we do Art. Ill, § 2, cl. 2, to honor our original jurisdiction but to make it obligatory only in appropriate cases. And the question of what is appropriate concerns, of course, the seriousness and dignity of the claim; yet beyond that it necessarily involves the availability of another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had. We incline to a sparing use of our original jurisdiction so that our increasing duties with the appellate docket will not suffer.” At the time we decided California v. Texas, it seemed to several Members of the Court that statutory interpleader might obviate the need to exercise original jurisdiction. Justice Brennan, for example, explained: “If we have jurisdiction at all, that jurisdiction does not attach until it can be shown that the two States may possibly be able to obtain conflicting adjudications of domicile. That showing has not been made at this time in this case, since it may well be possible for the Hughes estate to obtain a judgment under the Federal Inter-pleader Statute, 28 U. S. C. §1335, from a United States district court, which would be binding on both California and Texas. In this event, the precondition for our original jurisdiction would be lacking. Accordingly, I would deny California’s motion, at least until such time as it is shown that such a statutory in-terpleader action cannot or will not be brought.” 437 U. S., at 601-602. Our decision in Cory v. White has now shown that such a statutory interpleader action cannot be brought. Thus, the precondition for the exercise of original jurisdiction has been met. There were several other uncertainties that affected the case when we denied California’s earlier motion. At that time, Texas urged that the controversy was not ripe because of the pending claim of the Howard Hughes Medical Institute that a “lost will” left the entire estate to it and the contention that the so-called “Mormon Will” was valid. A jury has since rejected the “Mormon Will,” the Nevada Supreme Court and the Texas Probate Court the “lost will.” Another changed circumstance is the expiration of a conditional settlement agreement between California and the estate. Texas had argued because of this allegedly collusive agreement, the case was not a justiciable case or controversy. We conclude that our original jurisdiction is properly invoked under Texas v. Florida, and we grant California leave to file its bill of complaint. The defendants shall have 60 days to answer. It is so ordered. Texas asserts that California has not demonstrated the jurisdictional prerequisite of showing a “threatened injury” of “serious magnitude and imminent.” Brief in Opposition to Motion for Leave to File 6, quoting Alabama v. Arizona, 291 U. S. 286, 292 (1934). Texas explains that the true value of the estate is subject to dispute and litigation and that the estate can fully satisfy all potential death tax claims against it even under California’s own valuation. The Court in Texas v. Florida, however, required only that “[t]he risk that decedent’s estate might constitutionally be subjected to conflicting tax assessments in excess of its total value and that the right of complainant or some other state to collect the tax might thus be defeated was a real one.” 306 U. S., at 410. The claims before us here are no more speculative than the ones there. As that case recognized, to bring an interpleader suit, “[a] plaintiff need not await actual institution of independent suits; it is enough if he shows that conflicting claims are asserted and that the consequent risk of loss is substantial.” Id., at 406. Thus, California’s allegations are sufficient to present a controversy within the meaning of 28 U. S. C. § 1251(a). Despite the suggestion that we do so, we decline to overrule Texas v. Florida. As in Texas v. Florida, the idiosyncratic pattern of the decedent’s life provides a basis for more than one State’s claims. Hughes spent much of his time in California and many of his business activities were based there. He was, however, born in Texas and long continued to use Texas as his mailing address and sometimes stated that Texas was his domicile. Indeed, a jury in Texas probate proceedings has already found Hughes to have been a domiciliary of Texas at the time of his death. The administrator of Hughes’ estate timely perfected an appeal of that judgment. Brief for Respondent Lummis in Cory v. White, O. T. 1981, No. 80-1556, p. 5. The Texas Court of Civil Appeals stayed the appeal of the Texas domicile judgment pending the outcome of the federal inter-pleader action. Id., at 7. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_fedlaw	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. COMMISSIONERS OF SEWERAGE OF CITY OF LOUISVILLE, KY., v. DAVIS et al. DAVIS et al. v. COMMISSIONERS OF SEWERAGE OF CITY OF LOUISVILLE, KY. Nos. 7411, 7412. Circuit Court of Appeals, Sixth Circuit. March 5, 1937. Robert S. Marx, of Cincinnati, Ohio, and Rowan Hardin, of Louisville, Ky. (Rowan A. Hardin and Nichols, Morrill, Wood, Marx & Ginter, all of Cincinnati, Ohio, on the brief), for Commissioners of Sewerage. Robert Lee Blackwell, of Louisville, Ky. (William Marshall Bullitt and Bruce & Bullitt, all of Louisville, Ky., on the brief), for A. A. Davis et al. Before HICKS and SIMONS, Circuit Judges, and LEDERLE, District Judge. HICK.S, Circuit Judge. On August 24, 1928, A. A. Davis and E. D. Davis, citizens and residents of Oklahoma City, and copartners doing business as A. A. Davis & Co. (herein called the Company), entered into a contract with the Commissioners of Sewerage of the City of Louisville (hereinafter called the Commission), for the construction of 8,544.54 linear feet of concrete sewer in open trench. The sewer, called the Highland Park-Beechmont Sewer, varied in size at different points but required the excavation of a trench roughly 18 feet wide and 15 to 25 feet deep, with a shallow trench 6 to 8 inches deep in the floor of a portion of it for an underdrain. The contract called for its completion in 270 days, with a penalty of $25 per day for each day taken in excess thereof; 206 extra days were taken, although about 40 of these were allowed by the engineer on account of bad weather. On or about July 1, 1928, the Commission advertised in trade journals that on July 20 it would receive bids or proposals for the construction of the sewer. The advertisement stated that the work would involve approximately “9,470 Lin. ft.— Earth Excavation in open trench. * * * Payment for earth excavation will be by the linear foot and cubic yard, concrete by the cubic yard and steel by the pound.” The description of the project was contained in a printed book of nearly 200 pages, copies -of which were used by the Commission for all its sewer jobs, of which it had many. Blanks were left in the books into which the separate specifications and figures for each job could be inserted by hand. Much of the printed material, of course, applied to all jobs, but inapplicable portions were crossed out with ink. This particular issue of the book bore on its cover, among other things, the notation that it applied to “Contract 40” and that it contained “Information for Bidders” and “Specifications for the Construction of Highland Park-Beechmont Sewer.” On the sixth page under the heading “Drawings,” and under the general heading “Information for Bidders,” appeared this statement : “The location and the general character of the work to be done under this Contract are shown upon Drawings in the office of the Commission entitled Contract No. 40 * * * dated June 15, 1928, and numbered” (listing sixteen numbers) “which are to be a part of this contract.” On page 7, under the same general heading and under the specific heading “Quantities,” this appeared: “The following is an approximate statement of the engineer’s estimate of the extent of the work required. * * * “Item la. Earth excavation and hack-fill for 12' 2" x 7' 9" rectangular sewer from Sta. 1 plus 12.03 to Sta. 10 plus 24.34 —912.31 linear feet.” (Italics ours.) Then followed five other items aggregating (exclusive of a section later left out of the contract by agreement) the linear feet of earth excavation and backfill upon which bids were asked. The quantities of concrete were set up in other items on a cubic yard basis and reinforcing steel on a pound basis. In the second general section entitled “Proposals,” the bidder was directed to quote prices on these same items of “earth excavation and backfill” at dollars and cents per linear foot and the concrete on the cubic yard basis and the iron on a pound basis. On page 95 under the general heading “Specifications” appeared the most disputed language in the contract: “Earth Excavation “Earth Defined. “Section 1.1. The word 'earth,’ when used in these Specifications, shall mean all kinds of materials including old masonry, excavated or which are to be excavated. except rock as hereinafter defined:” The line struck out was originally a part of the printed specifications but was crossed out with ink and a period placed in ink after the word “excavated.” On page 94, for instance, the word “rock” was struck out everywhere it appeared under the section “Payment Line.” And elsewhere in the specifications all references to rock were scrupulously deleted by crossing out. Prior to completion of the drawings and calling for bids, employees of the Commission made 19 borings along the line of the work. On account of street traffic only one of the borings was made on the center line of the sewer. The others ranged from 8 to 31 feet on one side or the other of the center line, and the exact location of each was indicated on the drawings. The borings were made with a sand or earth auger similar to a posthole digger type of auger, so that the samples of the material through which it passed could be brought up, noted, and preserved. All of these materials, such as cinders and gravel in filled ground, yellow clay, and various shades and consistencies of blue clay, etc., were recorded on the drawings, along with the thickness of each stratum thereof. Twelve of these borings were carried to subgrade or lower. Seven, namely, Nos. 8, 9, 10, 11, 12, 15, and 18, were stopped by a hard substance before reaching subgrade. These borings were stopped respectively at .2 feet, 5 feet, 7.2 feet, 2.8 feet, 2.2 feet, 4.5 feet, and 1.4 feet higher than subgrade. In each instance the auger, which with extensions weighed roughly 100 pounds, was smashed and churned against the obstructing material, so that small pieces were splintered off and brought to the surface. The samples from each hole were placed in separate' fruit jars and were carefully labeled to show the name of the project to which they were related, the number of the boring at which they were taken with the station, the depth at which they were encountered, and their nature (as “Yellow Clay”). In each instance where the boring did not penetrate to subgrade, the substance that stopped it was marked on the drawings as “shale” and the samples thereof placed in the jars were likewise so labeled. The borings were made by a crew of men under the general supervision of Howard F. Stolz, junior engineer with the Commission. The samples obtained were then carried to the Commission’s chemical laboratory and kept on display along with samples of borings from numerous other projects. On July 7, R. O. Schriver,'the Company’s engineer and construction superintendent, was taken over the location of the sewer by a Mr. Boerner, construction engineer of the Commission, and later, on July 17, after receiving the specifications and drawings, he and A. A. Davis appeared at Louisville, went to the office of Mr. Caye, the chief engineer of the Commission, who prepared the specifications and contract, and asked to get all the information they could, at which time they were both taken over the job and a nearby one by Mr. Boerner. It is claimed by the Company that on this occasion Boerner made certain statements to Davis and Schriver which will be hereinafter referred to. At the close of this trip Davis and Schriver were taken to the laboratory and made an examination of the contents of the jars. The Company claimed that it was compelled in the execution of the work to excavate 7,-663.03 cubic yards of limestone and slate which required blasting, wedging, and sledging for its removal. Upon being denied compensation therefor it brought suit in equity against the Commission for approximately $215,000 as damages for alleged fraudulent deception whereby they claimed to have been misled in the execution of the contract. So far as is material here, the elements of the damages sought were: (1) The excess cost of excavating the limestone and slate upon the theory that such material was not contemplated or covered by the contract; and (2) the penalties exacted for exceeding the contract time which the Company claimed was due to the excavation of limestone and slate. The court appointed a special master to take the testimony and report his conclusions of law and fact. He presided at the taking of the testimony, saw the witnesses on the stand, filed a detailed report, and found every issue of fact and law in favor of the Commission. Exceptions taken by the Company were framed to require a review by the District Court of all the evidence. The court sustained the exceptions and decreed a recovery totalling approximately $80,000. Both sides appealed. The determinative question is, whether the Company was fraudulently misled by the Commission or its authorized agents into believing that there would be no material found in the excavation requiring blasting, wedging, or sledging for its economical removal. This of course is purely a question of fact. The Company urges that the Commission accomplished its deception by a deliberate “step by step” process; that the first step was the use of the term “earth excavation” in the advertisement; and the second was the use of the same words at various places in the contract; that the term earth excavation would naturally lead the contractor to believe that the job involved the removal of only ordinary earth, such as could be excavated with clam shell buckets or steam shovels, as distinguished from solid rock or slate, or at least that the term earth excavation as defined in the contract was so ambiguous in meaning as to be fraudulent in law. The master held that the definition of the term was plain and its meaning was therefore not dependent upon extraneous construction. The court found that the definition “did cover rock,” but concluded that the ambiguous nature of the language used therefore should be considered in determining whether the Company or its agents were misled into believing that blasting would not be encountered. We find no ambiguity in the definition. The word “earth” has many commonly accepted meanings. It was dealt with here, however, in an excavation contract, and it was necessary therefore to define it to avoid misunderstanding. It was defined in simple language to mean “all kinds of materials, * * excavated or which are to be excavated.” As a further precaution against misinterpretation, the phrase “except rock as hereinafter defined” and all other references to rock in the printed specifications were meticulously expunged. The contract clearly provided for payment upon a linear foot basis. There was no classification of materials. The linear foot basis was particularly defined to be “the actual length in linear feet of sewer constructed. * * * ” Under the heading “Underground Information, Objects and Structures” is section V as follows: “Section V. The plots of pipes and other underground objects are supposed to be approximately correct, but should they be found to be otherwise, or should the Contractor encounter quicksand, springs, water, disintegrated rock, boulders, old masonry,' sewers, drains, pipes, conduits or other underground objects or structures not shown on the Drawings, or should he encounter earth different from what is indicated by the borings and soundings as shown on the Drawings or should he encounter difficulties other than what was estimated or expected, he shall have no claim for any additional compensation on account of the underground information as shown on the Drawings not showing or representing underground objects or actual conditions as encountered or found, it being clearly understood and agreed that the Commission does not by implication or otherwise guarantee the borings, soundings or plots of underground objects to show or represent conditions which will be encountered in the execution of this Contract.” We think the meaning of the word “earth” as defined and used in the contract was plain and unambiguous, and that extraneous evidence was inadmissible to destroy that meaning, and the Company was bound unless it was induced to assume the obligation by misrepresentations of the Commission or its authorized agents that the work would not involve rock which would require blasting, wedging, or sledging for its removal. On this issue Schriver testified that on the visit of July 17 Boerner took him and A. A. Davis to the Whitney avenue sewer job some blocks distant from the proposed sewer; that at that point they were then working in a kind of loam, clay, sand, and gravel, and that, upon being asked by them if it was the same kind of material they could expect on their job, Boerner answered that it was, saying that he had been working for the Commission 6 or 7 years and was pretty well acquainted with the territory or should be; and to the best of his knowledge there was no rock in that part of the country. Davis’ testimony as to what Boerner said regarding the existence of rock in that part of the city confirmed Schriver in most particulars, although, in a place or two in his evidence Davis testified that Boerner said that “in his opinion” no rock could be found on the job. Davis “considered Mr. Boerner to be a man of experience along this particular line and this exact part of the country.” Boerner denied that he made any such representations, saying: “I made no statements to them with reference to the subsoil conditions that they would encounter in digging this excavation other than as shown on the contract drawings. I did not make to them any representation that no rock would be encountered in the excavation for this sewer. I did not have any knowledge on that subject at that time. I took them over to see another sewer excavation” (the Whitney Avenue job), They “had not then struck shale.” At another point he said that, when he was asked about rock, he referred to the blueprints, saying that it showed much rock. Caye, of course, did not know what was said on this inspection trip, but stated that his instructions to Boerner on such occasions had been “to take the contractors over the work, show them the streets in which the sewer was to be constructed and that was all. * * * I have discussed with him that matter, and cautioned him to be very carefub about even expressing an opinion regarding the work.” Boerner agreed that he had been so instructed. The master found that Boerner “probably did make some comment of the nature testified to by Mr. Davis and Mr. Schriver as an expression of opinion which he honestly entertained,” but “it is hardly reasonable to suppose that in so important a matter, the plaintiffs could have relied for their protection upon a casual conversation of this kind with one of the employees of the Commission, who accompanied them rather in the nature of a guide. * * * ” In addition, if we assume that Boerner had authority to speak for the Commission (whether he did is left in doubt), the master specifically found that no misrepresentation was made by Boerner. This finding was presumptively correct. Atherton v. Anderson, 86 F.(2d) 518, 522 (C.C.A.6), was not modified or rejected by the court and we see no reason to interfere with it. As was said in Atherton v. Anderson, supra, the master saw and heard-the witnesses and had a superior opportunity to test their credibility and reconcile the conflicts in their testimony. It is next urged that the borings and! the labels on the blueprints were deceptive^ and misleading, in that they caused the’t Company to believe that no slate or limestone, which would of course require blasting, would be encountered, and that this was the next step by which the Commission accomplished its deception. The master found against the Company upon this issue. As stated, the samples taken from the borings which did not reach subgrade were called “shale” on the jars in which they were placed and the obstructing material was labeled “shale” on the blueprints. The master found that this classification was correct and the court concurred. It said: “The proof, however, shows that the substance encountered was in fact shale, and that there is no slate in the vicinity of Louisville, Ky.” There is no controversy over this particular finding, but the contention arose over what is meant by the term “shale.” Davis and Schriver claim that they understood what the Commission’s engineer denoted as “shale” was a soft rock overlying beds of what they called “slate,” and that the samples contained in the seven jars taken from the borings indicated on the drawings to have been stopped by shale signified to them shale in the sense in which they understood the term; that is, a very soft easily removable rock which verged on the clays in consistency. They said that none of these samples contained specimens of the rock they later actually encountered close to these borings. Schriver was a competent engineer and Davis was a capable contractor. This raises the question whether they were fraudulently misled by false labels and borings or whether there was an honest misunderstanding between the parties of the meaning of the words “shale” and “slate.” Upon this issue both sides introduced impeccable witnesses. G. R. Smiley, assistant chief engineer for the Louisville & Nashville Railroad, testified for the Company that “the words ‘slate’ and ‘shale’ do not have a real definite, well defined meaning among people engaged in such excavation work in this section of Kentucky.” He called Exhibits (“G,” “L,” and “S,”) samples of rock taken out by the Company, “black slate” and limestone, and said on cross-examination that geologically the first would probably be called “shale.” He identified the materials from borings 8, 9, and 10 as “hard shale” or “black slate.” ; George M. Eady, a Louisville contractor, and a witness for the Company, in examining the samples of rock passed on by Smiley, said that he didn’t know what contractors called it, but he called it “slate.” “Shale,” he said, “is generally a brownish, grayish material, more brown than gray. * * » Caye testified that after seeing the actual excavation, and comparing it with the plans, he was of the opinion that the conditions actually encountered were very closely portrayed by the borings. He said that shale is not only scientifically classed as rock, but it is understood among contractors and engineers that shale is something of rock character that requires drilling and blasting; and that shale is considered as being a rock of considerable hardness. He explained that the difference between slate and shale was distinctively characterized by their geological formation; that he checked the contents of the jars to see that they were properly labeled as to classification. . In addition to Caye’s testimony on the point, the Commission offered the testimony of several other well qualified witnesses. Lucien Beckner, a professional consulting geologist residing in Louisville, in examining the samples submitted to Smiley, said, that is what “we call New Albany shale,” a “black shale.” He identified the other rock shown Smiley as limestone and said that it was always found under shale in that section. He said “there are no slates in Kentucky,” but these materials are “usually called slate by the natives”; it is known as slate only by people “who do not know the difference.” He said that shale “has been completely distinguished from slate except in common parlance,” that “you could not sell shale anywhere in the United States for slate.” He was one of those who was of the opinion that the auger used could remove samples of black shale. Charles E. Cannell, a general contractor for 38 years, who had done sewer work in Louisville, identified all the samples from the disputed borings as shale, and called the exhibits submitted to Smiley as shale rock and limestone. Homan J. Scott, a contractor of 15" years’ experience, identified all the boring samples as shale except No. 18, which he said looked like hardpan with perhaps some shale in it. He identified Exhibits “G,” “L,” and “S” as shale and limestone. James B. Wilson of Louisville, a civil engineer for 30 years, said that shale is very common in Jefferson county, Ky. He identified all the disputed samples in the jars as shale and agreed 'with Catan ell’s classification of the rocks submitted to Smiley. He said of the materials in the jars, “The material is shale; I don’t know of any other thing to call it; it is shale.” Frank L. Longley, a contractor from Lexington, Ky., confirmed the examinations of previous witnesses. for the Commission as to the borings in the seven jars, and the “Smiley” rocks. He would not say that these latter were exactly the same “in analysis” as the material in the jars, “but from a practical contractor's standpoint I would say it is the same material; near enough-the same kind of material that it would not make any difference to a contractor.” He said that he also bid on the Highland Park-Beechmont Sewer job, examined the disputed boring samples at the time, and that they were sufficient to inform him that the material from which they came would require blasting for removal. Upon consideration of this testimony, the master concluded that there was no fraud in connection with the samples or in the .use of the word “shale” upon the jars or in the blueprints and specifications. We concur. The utmost that may be said is that there was a mutual misunderstanding as to the meaning of the word “shale.” Whether this misunderstanding would justify a reformation of the contract we need not determine. It is sufficient to say that it does not support an action for deceit. The evidence does not justify a conclusion that the Company utilized this misunderstanding or confusion to perpetrate a fraud. We think the court misunderstood the effect of it. The court inferred that the Commission did not disclose all it knew as to the subsoil conditions along the line of. the sewer; that it should have apprehended from past experience that the contractor would likely encounter a substance that would require blasting, wedging, or sledging, and that its failure to so specifically advise the contractor, who was unacquainted with the local situation, of such conditions, was an affirmative fraud. We cannot concur in this view. There is no substantial evidence that the Commission or its authorized agents knew more'about the subsoil conditions along the line of the sewer than were disclosed in the borings and blueprints. This is self-evident because the conditions were hidden. See Elkan v. Sebastian Bridge Dist., 291 F. 532, 537 (C.C.A.8). Moreover, the Commission’s expert witnesses Beckner, geologist, Wilson, engineer, Cannell, Scott, and Longley, contractors, and Caye and Boerner, all described the samples in the jars as a hard material that would probably require blasting. The master accepted this testimony as true, and we find no reason to reject it. At the trial jar No. 9 actually contained large chunks of rock which were admittedly hard slate. When confronted with this jar, Davis and Schriver intimated that it had beep tampered with since their original examination of it. There is no evidence to support this suggestion, and the master found upon substantial evidence that the auger was capable of bringing up samples of the size found in jar 9. The Company, contrary to the findings of the master, insists that the Commission withheld material information which was known to it. This information was that Boerner, in charge of the borings, ascertained from the sounding of the auger tool, the churning of it in the hole, the feel of it in the hand, that the auger had struck material that would require blasting. But, assuming that the Commission was bound by this opinion of Boerner, it indicated, after all, nothing more than the “plat and profile” clearly disclosed. Finally, we cannot escape the conclusion that a careful contractor could not have overlooked the warning on the blueprints that at different places the auger had been stopped by something too hard to penetrate. There is little in the whole record that carries much weight on the accusation of fraud and deceit. Such accusations cannot be established by suggestions and presumptions. It is essential that the evidence be cogent, unequivocal, and convincing and leave the mind well satisfied that the allegations are true. Equitable Life Assurance Society v. Johnson, 81 F.(2d) 543, 547 (C.C.A.6). Rather than indicating fraud, the Commission’s documents, drawings, and physical recordings strike us with the scrupulous care with which they were drawn and assembled. We are not impressed with the oral testimony to the effect that the Commission by an unsigned paper included in a letter from its engineer to the Company made any representations as to soil conditions not already included in the specifications and drawings. The evidence is particularly weak since the paper could not be found. Nor are we impressed by evidence of the response to overtures made to the Commission after they had encountered rock. These overtures were entertained, but there is no satisfactory evidence that any concessions were granted. The recovery embraces one item of $2,-586.79 admitted to be due. For this item the decree is affirmed. In all other respects the decree is reversed and the case remanded, with directions to dismiss the bill at the cost of the Company. 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_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. MA-KING PRODUCTS CO. v. BLAIR, Com’r of Internal Revenue. (Circuit Court of Appeals, Third Circuit. February 9, 1925.) No. 3254. Intoxicating liquors <S=69 — Commissioner has discretion in the granting of permits to manufacture. Prohibition Act, tit. 2, §§ 5, 6 (Comp. St. Ann. Supp. 1923, §§ 10138%bb, 10138y2c), vests the Commissioner of Internal Revenue with a responsible discretion in the granting of permits to manufacture liquor, and refusal of a permit to a corporation whose managing officers have been associated in business with persons charged with violating the law is proper. Appeal from the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson and Erederie P. Sehoonmaker, Judges. Suit in equity by the Ma-King Products Company against David H. Blair, Commissioner of Internal Revenue. Decree for defendant, and complainant appeals. Affirmed. Louis Little, of Pittsburgh, Pa., and B. D. Oliensis and Francis Shunk Brown, both of Philadelphia, Pa., for appellant. Walter Lyon, U. S. Atty., and George V. Moore, Sp. Asst. U. S. Atty., both of Pittsburgh, Pa., for appellee. Before BUFFINGTON and WOOLLEY, Circuit Judges, and BODINE, District Judge. BUFFINGTON, Circuit Judge. In the court below the Ma-King Products Company, a corporate citizen of New Jersey, filed a bill in equity against David H. Blair, Commissioner of Internal Revenue. It alleged it had duly made application, accompanied by proper bond, to said commissioner for a permit to operate an alcohol denaturing plant; that under the law he was empowered and authorized to grant such permit, but he had “arbitrarily, illegally, and without any reason or warrant in law or in fact” disapproved the application and refused to issue the permit.. The bill prayed the court to revoke the finding and disapproval of the Commissioner, and ordered him to decree that he approve and grant the permit prayed for. Traversing the foregoing allegations of arbitrary and illegal conduct, the Commissioner made answer, and further set forth that he, “as the result of an investigation conducted by respondent’s agents, is informed that Harry J. Bogash and Joseph H. Klutseh, respectively, president and secretary-treasurer of the petitioning company, are not individually, or as officers of said petitioner, entitled to be intrusted with a permit of the nature and kind set forth in said bill of complaint, or any other permit under the provisions of the National Prohibition Act, and that therefore your respondent, upon said information, acted under full warrant of law and fact in disapproving the application of the petitioning company and declining and refusing to issue the permit prayed for by the petitioners.” Testimony was taken by both sides, and the case heard by Judges Thomson and Schoonmaker, of the Western District of Pennsylvania, who concurred that there was nothing in the record to justify them “in finding that the Commissioner of Internal Revenue, in refusing the application of the plaintiff for the permit for the establishment of a denaturing plant, abused the wide discretion vested in him by the act of Congress.” Prom a decree dismissing the bill, this appeal is taken. After an examination of the proofs in the ease ’vv;e are of the opinion the associations and business connections of Bogash and Klutseh, the principal officers of this company, were such that the Commissioner had ample ground for declining to issue the company the permit. The holder of such a permit is intrusted by the government with a power which subjects him to the approaches and bribes of law-breakers, and where, as in this case, the business associations of applicants iiave been witli men whose eonduct has already invited prohibition prosecutions against them, it goes without saying1 that the Commissioner would have been derelict in duty in granting them a permit. But the appellants raise the further question that the Commissioner has no discretionary power, but his duty is mandatory to issue a permit. The controlling statutory law is plain. A brief reference to the pertinent parts shows the groundlessness of such contention. Section 6, title 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%c) provides: “No one shall manufacture, sell, purchase, transport, or prescribe any liquor without first obtaining a permit from the Commissioner so to do,” and “in the event of the refusal by the commissioner of any application for a permit, the applicant may have a review of his decision before a court of equity in the manner provided in section 5 hereof.” That section provides: “The manufacturer may by appropriate proceeding in a court of equity have the action of the Commissioner reviewed, and the court may affirm, modify, or reverse the finding of the Commissioner, as the facts and law of the case may warrant.” Comp. St. Ann. Supp. 1923, § 10138%bb. The last phrase, “as the facts and law of the case may warrant,” shows that Congress meant the Commissioner was to have, not the mere mandatory clerical duty of signing a permit, hut the discretionary and responsible one of considering facts and law before he determined whether he would permit manufacture. If issue of the permit were mandatory on the Commissioner, why give the court jurisdiction to “affirm, modify or reverse the finding of the Commissioner as the facts and law of the ease may warrant” ? That the court was empowered to review the “findings of the Commissioner,” and was given power to affirm, modify or reverse such findings, shows that what the Commissioner was to do was not the perfunctory signing of a formal permit, hut the responsible duty of determining whether this high permissive privilege and permit should he issued to an applicant. So holding, this appeal is dismissed, at appellant’s costs, and, as the act provides for affirmative action by the court, the mandate will direct that there he added to the decree below, dismissing the bill; these words, “and the finding of the Commissioner is affirmed.” 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_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. Robert Louis PORTER, Appellant, v. UNITED STATES of America, Appellee. No. 18917. United States Court of Appeals Fifth Circuit. Jan. 12, 1962. Rehearing Denied March 14, 1962. Charles W. Tessmer, Dallas, Tex., for appellant. Robert S. Travis, Asst. U. S. Atty., W. B. West, III, U. S. Atty., Fort Worth, Tex., for appellee. Before BROWN, WISDOM and BELL, Circuit Judges. JOHN R. BROWN, Circuit Judge. This is an appeal from a summary dismissal of a § 2255 petition for post-conviction relief from a 20-year sentence for violation of the narcotics laws by the sale of marihuana, 26 U.S.C.A. § 4742(a). The sentencing court dismissed it outright without any hearing on the ground that it appeared that the petitioner’s contentions “are frivolous and without merit, not in good faith, and state no valid ground upon which the relief sought might be granted.” Presumably the Court meant this as a paraphrase of the statute that “ * * * the files and records of the case conclusively show that [petitioner] is entitled to no relief * * 28 U.S.C.A. § 2255. The energetic efforts of Court-appointed counsel who had aided this Court by a brief, reply brief, and supplemental brief of the highest professional quality followed by oral arguments of like caliber, demonstrates to us just as conclusively that this was a case demanding a hearing. We accordingly reverse. As our reasoning requires that we discuss some phases of what might be brought out on a hearing, we would sound a special caveat: there are no prejudgments of the case and nothing said or unsaid, expressed or implied, is to be taken as a holding, or even an intimation, that upon such a hearing any particular action should or should not be taken. We order a hearing. What such a hearing compels is to be determined in the first instance by the District Court on that hearing. The propriety of any such order is for another day. On the trial of the case leading to his conviction by a jury verdict of guilty, petitioner’s main defense was that of entrapment. This bears heavily on the matters set forth in the § 2255 motion for without all of the refinements which that concept unavoidably involves, the question is whether the accused did the act or whether police-enforcement officers got him to do the act. In his § 2255 motion, elaborated on in his annexed affidavit, petitioner made these serious charges. He asserted that he did not have effective representation of counsel and because of this, evidence, vital and helpful to his defense, was withheld from the jury. The combination of these was such as to deprive him of the constitutionally guaranteed fair trial. These charges did not stand in mere broad conclusory terms. The operative facts were as detailed as the charges were emphatic. He set forth facts showing that on the trial of the criminal case, he was represented by counsel of his own choice whom we will call Mr. Barrister. But unknown to petitioner, Barrister was at that very time also the attorney for Glass, an officer on the Fort Worth Police Department assigned to duty on narcotics cases. At the very time of the criminal trial, Glass was the respondent in a Police Department proceeding concerning alleged improper use, handling, or disposition of narcotics by that officer. And subsequently, so petitioner stated, Glass was removed from the Police Force because of his illegal narcotic activities. Demonstrating that the attack was not the sterile one of a defendant claiming that his lawyer could not give unfettered loyalty to his interests merely because he represented other people, good or bad, the motion went on to connect Glass up with petitioner’s case. In the plainest of words petitioner reviewed in great detail Glass’ conduct toward him. These included specific alleged incidents of Glass undertaking to extort money from petitioner by threats of baseless criminal charges; an approach by Glass in petitioner’s home, subsequent to the marihuana indictment but prior to trial, suggesting that if $500 was paid, Glass could persuade Meeks, the Government informer, not to testify. Moreover, petitioner, so he asserted, told Barrister about this and requested that Glass be called as a witness. Despite this, no effort was made by the attorney to bring this out or to call Glass on the trial. In addition to these positive allegations of sufficiently detailed facts, the record of testimony of the criminal trial (which is properly available to trial and appellate courts in testing a § 2255 proceeding) demonstrated that Glass, though not called as a witness by either prosecution or defense, was a moving figure in the case against petitioner. The case as to each “buy” was “made” by Meeks, euphemistically referred to as a special employee, although ordinarily described as an informer. Gilmore v. United States, 5 Cir., 1958, 256 F.2d 565. The principal Federal Narcotics Agent, Gabrys, acknowledged that the initial contact with Meeks was through Glass who “arranged the introduction between [the Agent] and Meeks.” Again, when petitioner’s home was searched the Federal Agent and Glass supervised the search. Similarly, Police Officer Hardin acknowledged that Glass was in on the initial conversations among the Agents and the Officers. Questioned concerning the dropping of charges against Meeks, the informer, Officer Hardin stated that the discussions with Meeks were by Glass who had earlier introduced the Agents to Meeks, the prospective informer-witness. Hardin’s description of the search of petitioner’s home also named Gabrys and Glass. The story told by these accumulated court papers is this bold and startling one. A lawyer, undertaking to represent an accused, finds that the best weapon to establish entrapment is to implicate another. Unfortunately, he cannot implicate such person because that person is also a client. Stated in these terms, it does not really matter whether Glass was, or was not, called as a witness, or whether, for that matter, as one analogous to a hostile witness in civil proceedings, he could have been called. Nor is it important that Glass, if called, may not have testified to things establishing petitioner’s innocence. Cf. Weaver v. United States, 8 Cir., 1959, 263 F.2d 577, 579, cert. denied, 359 U.S. 1014, 79 S.Ct. 1154, 3 L.Ed.2d 1038. What was involved was the more basic thing. The Constitution assures a defendant effective representation by counsel whether the attorney is one of his choosing or court-appointed. Such representation is lacking, however, if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents — as a vigorous advocate having the single aim of acquittal by all means fair and honorable — are hobbled or fettered or restrained by commitments to others. Glasser v. United States, 1942, 315 U.S. 60, 75, 62 S.Ct. 457, 86 L.Ed. 680; Ellis v. United States, 1958, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060; Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Johnson v. United States, 1957, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593; MacKenna v. Ellis, 5 Cir., 1960, 280 F.2d 592, affirmed on rehearing en banc, 289 F.2d 928; Birchfield v. United States, 5 Cir., 1961, 296 F.2d 120 [No. 18892, Nov. 17, 1961], Lott v. United States, 5 Cir., 1955, 218 F.2d 675; Craig v. United States, 6 Cir., 1954, 217 F.2d 355, 358, 359; Tucker v. United States, 9 Cir., 1956, 235 F.2d 238; United States v. Harris, S.D.Calif.1957, 155 F.Supp. 17; Berry v. Gray, W.D.Ky., 1957, 155 F.Supp. 494; Johns v. Smyth, E.D.Va., 1959, 176 F.Supp. 949. Of course such things as this should never happen, and the place to stop it is the professional conscience of the advocate involved. A Court may not countenance it and must, on the contrary, take effective action just as we are certain the careful Judge below would have done had the facts been, known at or before the commencement of the criminal trial. But where this has been allowed to occur, either through a calloused conscience of the attorney, or ignorance of the true facts by the Judge, the trial is not the fair one demanded by the Constitution. And this is so without regard to the presence or absence of any action of a strictly governmental nature which can be ascribed to the prosecution as the transgressing agency or imputed to the trial court on traditional notions of error on the Judge's part. The charges made in the § 2255 motion were both serious and legally significant. Could the Judge reject them without a hearing ? The answer to that is found in the words of the statute and the uniform decisions of this Court. The statute prescribes that “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * * ,” the Court after notice shall hold “a prompt hearing thereon” and “determine the issues * * of fact * * * ” 28 U.S.C.A. § 2255. Here no controversion of any kind was filed by the Government. The record— encompassing everything which the statute describes as the “files and records of the case” — simply did not touch one way or the other upon these charges made for the first time in the § 2255 papers. The Court, thus, had no means by which to say that the records conclusively showed such facts to be untrue. And we are certain that the Judge did not mean to imply that apart from the court records he knew them to be untrue. What the Judge did was somehow to reverse the demands of the statute which requires a hearing unless, to declare in effect that a hearing would not be held unless. He was perhaps led into this erroneous view by a failure to distinguish carefully between the new and serious matters asserted in the § 2255 motion and those previously urged and rejected by the same Judge in denying bail on the appeal from the original conviction and by this Court in dismissing that appeal as frivolous. Porter v. United States, 5 Cir., 1959, 272 F.2d 695. Whether these serious assertions are or are not true, no one yet knows. But since the record does not demonstrate conclusively that they are not so, the trial Court, as we have many times held, was obligated to hold a hearing to ascertain the truth of these charges set forth with adequate factual particularity. Because this fundamental principle seems so often to be overlooked by busy, conscientious trial Judges as they do their level best to make sense out of so many of these informal, sometimes illegible, prisoner-composed papers, we set out this list of cases, in addition to others in this opinion, of the past decade. Callahan v. United States, 5 Cir., 1961, 297 F.2d 79 [No. 19015, Dec. 13, 1961]; Corbett v. United States, 5 Cir., 1961, 296 F.2d 131 [No. 18939, Nov. 29, 1961]; Alexander v. United States, 5 Cir., 1961, 290 F.2d 252; Meadows v. United States, 5 Cir., 1960, 282 F.2d 942, 943; Brown v. United States, 5 Cir., 1959, 267 F.2d 42; Steinberg v. United States, 5 Cir., 1958, 256 F.2d 143; Kennedy v. United States, 5 Cir., 1957, 249 F.2d 257; Gregori v. United States, 5 Cir., 1957, 243 F.2d 48; Parks v. United States, 5 Cir., 1956, 233 F.2d 321; Motley v. United States, 5 Cir., 1956, 230 F.2d 110; Williams v. United States, 5 Cir., 1955, 227 F.2d 48; Smith v. United States, 5 Cir., 1955, 223 F.2d 750; Sanders v. United States, 5 Cir., 1953, 205 F.2d 399; Ziebart v. United States, 5 Cir., 1950, 185 F.2d 124; James v. United States, 5 Cir., 1949, 175 F.2d 769. It follows, therefore, that the cause must be remanded for a hearing and judicial determination of these charges involving knowledge and actions of petitioner, Glass, Barrister and perhaps others. Without undertaking to bluprint the hearing, it is obviously one which reasonably requires the presence of petitioner. Reversed and remanded. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
sc_lcdispositiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations FLORIDA v. MEYERS, aka WEYERS No. 83-1279. Decided April 23, 1984 Per Curiam. Respondent was charged with sexual battery. At the time of his arrest, police officers searched his automobile and seized several items. The vehicle was then towed to Sunny’s Wrecker, where it was impounded in a locked, secure area. Approximately eight hours later, a police officer went to the compound and, without obtaining a warrant, searched the car for a second time. Additional evidence was seized. At the subsequent trial, the court denied respondent’s motion to suppress the evidence seized during the second search, and respondent was convicted. On appeal, the Florida District Court of Appeal for the Fourth District reversed the conviction, holding that even though respondent conceded that the initial search of the automobile was valid, the second search violated the Fourth Amendment. 432 So. 2d 97 (1983). The court concluded that Chambers v. Maroney, 399 U. S. 42 (1970), in which this Court held that police officers who have probable cause to believe there is contraband inside an automobile that has been stopped on the road may search it without obtaining a warrant, was distinguishable, stating that “in this case the element of mobility was removed because [respondent’s] vehicle had been impounded.” 432 So. 2d, at 99. The Florida Supreme Court denied the State’s petition for discretionary review, and the State filed the present petition for certiorari. We reverse. The District Court of Appeal either misunderstood or ignored our prior rulings with respect to the constitutionality of the warrantless search of an impounded automobile. In Michigan v. Thomas, 458 U. S. 259 (1982), we upheld a war-rantless search of an automobile even though the automobile was in police custody and even though a prior inventory search had already been made. That ruling controls the disposition of this case. In Thomas, we expressly rejected the argument accepted by the District Court of Appeal in the present case, noting that the search upheld in Chambers was conducted “after [the automobile was] impounded and [was] in police custody” and emphasizing that “the justification to conduct such a warrantless search does not vanish once the car has been immobilized.” 458 U. S., at 261. The District Court of Appeal’s ruling that the subsequent search in this case was invalid because the car had been impounded is clearly inconsistent with Thomas and Chambers. The petition for certiorari is therefore granted, the judgment of the District Court of Appeal is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. Even though the District Court of Appeal remanded the case for a new trial, its decision on the federal constitutional issue is reviewable at this time because if the State prevails at the trial, the issue will be mooted; and if the State loses, governing state law, Fla. Stat. § 924.07 (1981); State v. Brown, 330 So. 2d 535, 536 (Fla. App. 1976), will prohibit it from presenting the federal claim for review. In such circumstances, we have consistently held that “the decision below constitute^ a final judgment under 28 U. S. C. § 1257(3).” California v. Stewart, decided with Miranda v. Arizona, 384 U. S. 436, 497, 498, n. 71 (1966). See South Dakota v. Neville, 459 U. S. 553, 558, n. 6 (1983); North Dakota Pharmacy Board v. Snyder’s Stores, 414 U. S. 156, 159-164 (1973). See also Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 481 (1975). Respondent contends that we should not review the issue raised by petitioner because “the appellate court reversed [respondent’s] conviction on two independent grounds, one of which (restricted cross-examination) petitioner does not contest.” Brief in Opposition 2. To the extent that this is an argument that the lower court’s judgment is unreviewable because it rests on adequate and independent state grounds, we reject it. First, it is highly questionable whether the District Court of Appeal would have reversed the conviction had it not reversed the trial court’s ruling on the suppression motion. The court did state that respondent’s cross-examination of the victim had been unduly restricted by the trial court. However, the court’s short discussion of this issue was introduced by the observation that “[s]ince the case must be remanded for a new trial we briefly mention another appellate point.” 432 So. 2d, at 99. This is hardly a clear indication that the cross-examination ruling provided an independent and adequate basis for reversal of the conviction. See Michigan v. Long, 463 U. S. 1032, 1040-1041 (1983). Moreover, even if the cross-examination ruling did provide an independent state ground for reversal, we would still be empowered to review the constitutional issue raised by petitioner. The reason we cannot review a state-court judgment resting on adequate and independent state grounds is that “[w]e are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.” Herb v. Pitcairn, 324 U. S. 117, 126 (1946). In the present case, there is no possibility that our opinion will be merely advisory. Even if the District Court of Appeal were to order a new trial solely on the basis of its cross-examination ruling, the admissibility of critical evidence at that trial hinges on the constitutional issue presented for review by petitioner. Thus, our resolution of that issue will affect the proceedings below regardless of how the District Court of Appeal rules on remand. In such circumstances there is no jurisdictional reason why we cannot address the issue presented to us. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable 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. Edna Mae BOOKER, Appellant, v. Miriam B. PHILLIPS, Superintendent, Kansas State Industrial Reformatory for Women, Appellee. No. 132-68. United States Court of Appeals Tenth Circuit. Nov. 12, 1969. Russell Shultz, Wichita, Kan., for appellant. Edward G. Collister, Jr., Asst. Atty. Gen., Topeka, Kan. (Kent Frizzell, Atty. Gen., Topeka, Kan., on the brief), for appellee. Before BREITENSTEIN, HILL and HOLLOWAY. Circuit Judges. HILL, Circuit Judge. Edna Mae Booker filed this petition for habeas corpus seeking release from the Kansas State Industrial Farm for Women. The district court, without conducting an evidentiary hearing, denied the writ and dismissed the petition. We are thus faced with the question of whether the court erred in determining that appellant’s present conviction was not obtained in violation of that portion of the Fifth Amendment that protects an individual against being twice placed in jeopardy for the same criminal offense. In March, 1965, the appellant was charged in the district court of Sedgwick County, Kansas, with the first degree murder of her husband. She entered a plea of not guilty and both sides presented evidence to the jury. The jury was then instructed that the charge of first degree murder encompassed the lesser included offenses of second degree murder and first, third and fourth degree manslaughter. After deliberation, the jury found appellant guilty of first degree manslaughter. On appeal it was determined that an instruction relating to the carrying of a concealed weapon was erroneous and the conviction was reversed. State v. Booker, 197 Kan. 13, 415 P.2d 411 (1966). On remand the appellant was again charged with first degree murder. However, before the second trial began, the defense of double jeopardy was raised based on the contention that appellant could not be reprosecuted for any degree of homicide greater than first degree manslaughter. The objection was overruled, appellant was once more tried for first degree murder, and was again convicted of first degree manslaughter. In a second appeal to the Kansas Supreme Court, the double jeopardy defense was rejected and the sentence which appellant is presently serving was approved. State v. Booker, 200 Kan. 166, 434 P.2d 801 (1967). Subsequent to this decision of the Kansas Supreme Court and the decision of the district court in this case, the Supreme Court held in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L. Ed.2d 707 (1969) that the Fifth Amendment guarantee against double jeopardy applies to the states through the Fourteenth Amendment. Justifiably, those two distinguished courts relied upon the law as enunciated by Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, and the line of cases following, but which cases are now overruled by the Benton case. Accordingly, it is now clear that the validity of appellant’s conviction must be judged under the federal double jeopardy standards enunciated inter alia, in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). That case invalidated a conviction for first degree murder obtained in a retrial after a previous conviction for second degree murder had been reversed on appeal. The Court observed: “[T]his second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution. Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. * * * Therefore * * * Green’s jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense.” 355 U.S. at 190-191, 78 S.Ct. at 225. Similarly, in the case at bar, appellant was forced to run the gantlet for first and second degree murder at the first trial and could not thereafter be required to run the gantlet again. Consequently, the second trial for first degree murder after a previous conviction for manslaughter had been reversed, was in direct violation of the Fifth Amendment and cannot stand. The fact that unlike the situation in Green v. United States, the appellant here has not been convicted of a greater offense at the second trial is of no consequence. In United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965) the then Circuit Judge Marshall squarely faced this issue and concluded that a defendant convicted of second degree murder, retried for first degree murder, and again convicted of second degree murder, had been twice placed in jeopardy. The reasoning underlying that conclusion is aptly stated in that opinion and need not be repeated here, except perhaps to note that it is not the conviction of the greater offense but the reprosecution for the offense that is repugnant to the Constitution. Stated conversely, it is not important that the defendant may have successfully run the gantlet for a second time; what is critical is that he should not have been required to run again at all. “[T]he State was constitutionally forbidden to prosecute him for first degree murder following the completion of the first trial.” 348 F.2d at 864. There remains for consideration the question of whether the holding in Benton should be denied retroactive effect. “We * * * must resolve the problem with full recognition that only the Supreme Court can give the final answer.” Gaitan v. United States, 317 F.2d 494, 497 (10th Cir. 1963). Since Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court has reviewed the retroactivity of decisions expounding new constitutional rules affecting criminal trials as a function of three criteria: (1) the purpose to be served by the new standards, (2) the extent of the reliance by law enforcement authorities on the old standards, and (3) the effect on the administration of justice of a retroactive application of the new standards. “Foremost among these factors is the purpose to be served by the new constitutional rule.” Desist v. United States, 394 U.S. 244 at 249, 89 S.Ct. 1030, at 1033, 22 L.Ed.2d 248. The purpose of the rule announced in Benton, “one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possbility that even though innocent he may be found guilty.” It is precisely this effect that “ ‘went to the basis of fair hearing and trial because the procedural apparatus never assured * * * a fair determination’ of his guilt or innocence.” Roberts v. Russell, 392 U.S at 294, 88- S.Ct. at 1922. The extent of reliance by law enforcement officials and the effect on the administration of justice — the second and third factors to be considered — also suggest that Benton should be given retroactive effect. The element of reliance is not persuasive because the case overruled by Benton, Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), has been, under serious attack and has been rejected by several courts. In sum, we conclude that Benton is to be given retroactive effect so as to require the application of federal double jeopardy standards to previous state criminal convictions. It follows then as stated above, that appellant’s reprosecution for first and second degree murder was constitutionally invalid. The order denying the petition for habeas corpus is reversed with instructions that the writ be granted unless, within a reasonable time, Kansas affords appellant a new trial that conforms to the principles set forth herein. . The jury was instructed as follows: . “The information in this case charges the defendant with murder in the first degree. This charge includes not only murder in the first degree but murder in the second degree, manslaughter in the first, degree, manslaughter in the third degree and manslaughter in the fourth degree. “You should therefore, first determine whether, under the evidence and instructions of the court, the defendant is guilty of murder in the first degree. If the defendant is not * * * you should proceed to determine whether she is guilty of murder in the second degree. * * * [If the defendant is not guilty of second degree murder] you should then consider whether or not she has been proved to be guilty of manslaughter in the first degree * * . As the Court indicated in Benton: “The validity of petitioner’s larceny conviction must be judged * * * under this Court’s interpretations of the Fifth Amendment double jeopardy provision.” 395 U.S. at 796, 89 S.Ct. at 2063. . In a clearly analogous situation an interpretation of a double jeopardy has been held to apply retrospectively. Application of McNeer, 173 Cal.App.2d 530, 343 P.2d 304 (1959). But of. United States ex rel. Wolak v. Yeager, 385 F.2d 478 (3d Cir. 1967). . Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030 (1969); DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968); Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) ; Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) ; Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) ; See generally, Annot., 10 A.L.R.3d 1371 (1966) and Annot., 14 L.Ed.2d 992 (1966). . Benton v. Maryland, 395 U.S. at 796, 89 S.Ct. at 2063, quoting Green v. United States, 355 U.S. at 187-188, 78 S.Ct. 221. . Cf. Koberts v. Russell, 392 U.S. at 295, 88 S.Ct. 1921. . United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 .(2d Cir. 1965) cert. den. Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667; Patton v. No. Carolina, 381 F.2d 636 (4th Cir. 1967) ; Shear v. Boles, 263 F.Supp. 855, 859 (N.D.W.Va. 1967). 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_applfrom	C	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). CONNORS, Joseph P., Sr., Pierce, Donald E., Jr., Miller, William, Jordan, William B., Dean, Paul R., as Trustees of the United Mine Workers of America 1950 Pension Trust, 1950 Benefit Plan and Trust, 1974 Pension Trust and the 1974 Benefit Plan and Trust, Appellants in No. 89-1960, v. BETH ENERGY MINES, INC. f/t/a Bethlehem Mines Corporation and f/t/a Beth-Elkhorn Corporation. CONNORS, Joseph P., Sr., Pierce, Donald E., Jr., Miller, William, Jordan, William B., Dean, Paul R., as Trustees of the United Mine Workers of America 1950 Pension Trust, 1950 Benefit Plan and Trust, 1974 Pension Trust and the 1974 Benefit Plan and Trust, v. BETH ENERGY MINES, INC. f/t/a Bethlehem Mines Corporation and f/t/a Beth-Elkhorn Corporation, Appellants in No. 89-1961. Nos. 89-1960, 89-1961. United States Court of Appeals, Third Circuit. Argued Aug. 13, 1990. Decided Dec. 6, 1990. Abraham C. Reich (argued), Fox, Rothschild, O’Brien & Frankel, Philadelphia, Pa., David W. Allen, Margaret M. Topps, Kenneth M. Johnson, United Mine Workers of America, Health and Retirement Funds, Office of General Counsel, Washington, D.C., for appellants/cross-appellees. J. Anthony Messina, Raymond A. Kresge (argued), Laura M. Stein, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for appel-lees/ cross-appellants. Before MANSMANN, GREENBERG and SEITZ, Circuit Judges. OPINION OF THE COURT MANSMANN, Circuit Judge. In this contract matter we are asked to resolve a dispute which requires interpretation of the National Bituminous Coal Wage Agreements of 1981 and 1984. Specifically, we must determine whether the employer, Beth Energy Mines, Inc. (“Beth Energy”) and its predecessors are obligated, under the terms of the Agreements, to credit the Trustees of the United Mine Workers Pension Trust of 1950 and 1974 and Benefit Plan and Trust of 1950 and 1974 (“the Trustees” and “the Funds”) with contributions for lunch periods worked by Beth Energy employees. Because we find that the district court correctly concluded that resolution of this dispute is controlled by our decision in Connors v. Consolidation Coal Co., 866 F.2d 599 (3d Cir.1989), we will affirm the district court’s grant of summary judgment mandating contributions to the Funds. We also find that the district court correctly determined that certain of the Trustees’ claims are time-barred, and will, therefore, affirm the district court’s entry of partial summary judgment in favor of Beth Energy, limiting the Trustees’ recovery to those contributions due after March 11, 1984. Finally, we find no error in and will affirm the district court’s calculation of interest and damages. I. The historical facts are straightforward. On March 11, 1987, the Trustees of four collectively bargained employee benefit trust funds filed suit against Beth Energy under the Labor-Management Relations Act and the Employee Retirement Income Security Act in the United States District Court for the Eastern District of Pennsylvania. The Trustees alleged that Beth Energy and its predecessors had failed to make required contributions to the Funds for a period beginning in November, 1983. Specifically, the Trustees alleged that Beth Energy had violated the terms of the National Bituminous Coal Wage Agreements of 1981 and 1984 (“the Wage Agreements”) in failing to make contributions to the Funds for “worked lunch hours.” The Trustees contended that in addition to making contributions based upon a normal eight-hour workday, Beth Energy was required to make contributions to the Funds, on a cents per hour basis, for each 30 minute period worked by a miner in lieu of his regular, contractually mandated lunch break. The miner receives premium pay (IV2 times the normal hourly rate) for working through the lunch period. In November, 1983, Beth Energy modified its method of accounting for worked lunch hours by moving them from an accounting category, “Hours 1,” to which the contribution obligation applied, to another category, “Hours 4,” for which it was not required to make contributions. The Trustees contended that this change in the method of accounting for worked lunch hours was first discovered by them in February or March, 1985, after the Funds audited the books of a Beth Energy predecessor, Beth Elkhorn Corporation. The Trustees objected to this change, arguing that Beth Energy’s revised accounting for worked lunch hours and the concommitant cessation of contributions to the Funds based upon these hours, violated the terms of the Wage Agreements. Relying primarily upon the same agreements, Beth Energy denied that it had any obligation to contribute to the Funds as a result of worked lunch hours. In January, 1988, the parties filed cross-motions for summary judgment. On October 14, 1988, the district court determined that it would delay ruling on these motions pending our potentially dispositive decision in Consolidation Coal. Consolidation Coal, which involved the identical Funds and Wage Agreements, required that we determine whether another signatory to the Wage Agreements, Consolidation Coal, was required to make contributions to the Funds for worked lunch hours. In our January 24, 1989 decision in Consolidation Coal, we held that the employer was obligated to make contributions to the Funds based on worked lunch hours. On March 13, 1989, the district court granted summary judgment in favor of the Trustees in the case now before us; finding Consolidation Coal to be controlling, the district court ruled that Beth Energy was required to base its contributions to the Funds, in part, on worked lunch hours. Having concluded that contributions were required, the district court gave separate consideration to a motion for partial summary judgment filed by Beth Energy on the issue of limitations. In that motion, Beth Energy contended that all claims for worked lunch hour contributions arising prior to March 11, 1984 were barred by the applicable three-year statute of limitations. The court rejected the Trustees’ claim that the limitations period was subject to equitable tolling and granted Beth Energy’s motion. In setting the total amount of contributions owed to the Funds, the district court denied Beth Energy’s motion to reduce the award by an amount equal to the interest and liquidated damages which had continued to mount in the days pending our decision in Consolidation Coal and during an extension of time for discovery. The final order was entered on October 10, 1989, and these cross appeals followed. Beth Energy appeals the determination that it is liable to the Funds for worked lunch hours and challenges the district court’s calculation of interest and liquidated damages. The Trustees appeal the district court’s refusal to apply the doctrine of equitable tolling in order to stay the applicable statute of limitations. II. Our resolution of the issues raised on appeal requires that we look first to the district court’s determination that Beth Energy was, in fact, required to make contributions to the Funds on the basis of lunch hours worked. Our review of the grant of summary judgment on this issue is plenary. Goodman v. Mead Johnson and Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). In concluding that the terms of the Wage Agreements required that Beth Energy contribute to the Funds for worked lunch hours, the district court relied primarily on our decision in Consolidation Coal. There we were called upon by the same Funds, referencing the same Wage Agreements, to decide the same issue as that presented here. We concluded there that Consolidated Coal, another signatory to the Agreement, was required to “make contributions to the employee benefit trust fund for ‘worked lunch hours’.” 866 F.2d at 600. Despite the fact that this matter involves a different signatory, we find that the district court’s reliance upon Consolidation Coal was well-placed and that much of the reasoning of Consolidation Coal is applicable in this litigation. Here, as it was in Consolidation Coal, our first point of reference in determining how the parties intended to treat worked lunch hours for purposes of contributions to the Funds must be the Agreements themselves. Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001 (3d Cir.1980). Both parties rely on Articles IV and XX of the 1984 Agreement in support of their worked lunch hours position. Article IV(b)(l) defines the concept of “work day” within the meaning of the Wage Agreement: For all inside Employees, a work day of eight (8) hours from portal-to-portal which means collar to collar or bank-to-bank is established including a staggered thirty (30) minutes for lunch, and without any intermission or suspension of operation throughout the day. For inside day workers these eight (8) hours per day and forty (40) hours per week shall be paid for at time and one-half. App. at 67a. Article XX of the 1984 Agreement is also relevant as it creates and defines the employer’s obligation to make contributions to the Funds on the basis of hours worked. Section (d)(l)(vii) of this Article provides, in pertinent part: [H]ours of work for purposes of Employer contributions to the plans and trusts described in this Article shall include all hours worked, or fractions thereof, by Employees in a classified job covered by this Agreement. Hours actually worked for which a premium pay of any type is provided shall be treated for purposes of Employer contributions to the Trusts as though worked on a straight time basis. App. at 77a. Construing these provisions in Consolidation Coal, we concluded that in failing to make Fund contributions for worked lunch hours, the employer had failed “to account for the miner’s contractual entitlement to a half-hour lunch period during which he is not required to work,” and that, “[WJhen an employer requests a miner to forego his contractual right to a lunch period, the employer cannot expect to gain the extra one-half hour of employee productivity without the concurrent responsibility to contribute to that employee’s pension and health funds.” This outcome is consonant with the provisions of the wage agreements and with industry practice. 866 F.2d at 602 (footnotes omitted). While the Trustees argue that our interpretation of the Wage Agreements in Consolidation Coal is determinative of the worked lunch hours issue, Beth Energy contends that a number of factors remove this case from the reach of Consolidation Coal. Beth Energy first asserts that under the terms of Articles IV and XX of the Wage Agreements, it has no monetary obligation to the Funds based on worked lunch hours. Beth Energy argues essentially that while an employee may forego his contractually scheduled lunch period, this does not mean that he does not eat lunch; in the interest of production efficiency, the miner simply eats lunch at a time later than he otherwise would have. The total amount of time worked is the same. Beth Energy compensates the miner at a premium rate, not because he works longer, but because his delaying lunch increases the efficiency of the mining operation. Beth Energy claims that when the contract terms are evaluated, in light of actual worked lunch hour practice, it is clear that no additional contribution is required. Beth Energy focuses upon Article IV(b) of the wage agreement which defines the “basic” work day as eight hours portal-to-portal. Uninterrupted staggered thirty minute lunch periods are included in this eight hour period. Beth Energy then argues that Article XX establishes that the hours actually worked (the portal-to-portal hours) —and only those hours — trigger the contribution obligation. Thus, a miner who delays his regularly scheduled lunch hour and, in reality, does no additional work, is entitled only to contribution for the eight hours of portal-to-portal time; no contribution is required because no additional hours are worked. Beth Energy buttresses this position by relying on the testimony of collective bargaining negotiators to the effect that contributions to the Funds were intended to be based only on actual “clock time”; contributions were not intended to be based on premium pay where that premium pay was not the result of an increase in the number of hours worked. This argument does not persuade us any more than it did the district court. During these proceedings to the point of our decision in Consolidation Coal, Beth Energy consistently defined the “worked lunch hour” as “the practice of an employee foregoing his or her uninterrupted lunch period in exchange for premium pay.” See, e.g., App. 113a, 173a, 262-263a, 341a, 422a, 502a, 543a and 605a. It was only after our decision in Consolidation Coal that Beth Energy explained that this term really means “delayed lunch hour.” This redefinition renders the phrase “worked lunch hour” meaningless. We believe that neither Beth Energy’s practice of awarding premium pay for the worked lunch hour nor its accounting for these lunch hours under “Hours Four” squares with this redefinition. In our view, the fact that Beth Energy provides premium pay for “worked lunch hours” suggests that the miner, in foregoing his contractually scheduled lunch hour, is conferring something of special value upon Beth Energy or is giving up something of value to which he is contractually entitled. In working through the scheduled lunch break, it seems clear that the employee does something which the Wage Agreements do not require him to do and is, therefore, entitled to additional compensation. It is also clear that the Wage Agreements contemplate that there will be times when contributions are due on hours for which the miner is paid at a premium. Article XX(d)(l)(vii) of the Wage Agreement provides that: [h]ours actually worked for which a premium pay of any type is provided shall be treated for purposes of Employer contributions to the Trust as though worked on a straight-time basis. App. at 77a. The miner does actually work through his contractual lunch period and is provided with premium pay. The plain language of the Agreement establishes that contributions are due on a straight-time basis. In concluding that Beth Energy is obligated to the Funds for worked lunch hours, we have also found it significant that, in accounting for worked lunch hours in the category “Hours 4,” Beth Energy reported these hours as overtime hours for purposes of awarding pension credit. Employee pay stubs also reflect credit for overtime. App. at 392a. This accounting for the hours in question implies recognition on the part of Beth Energy that extra work is being performed. If, as Beth Energy claims, the worked lunch hour issue involves nothing beyond juggling of lunch periods, we find it difficult to understand why Beth Energy would provide premium pay and report worked lunches as overtime for pension credit purposes. In sum, we find nothing in Beth Energy’s actual worked lunch hour practice which would support our deviating from the construction given the identical provisions of the Wage Agreements in Consolidation Coal. We find no merit to Beth Energy’s contention that this case is distinguishable from Consolidation Coal in that the record here, unlike the record in Consolidation Coal, contains persuasive evidence relating to the collective bargaining history of the Wage Agreements. We think that the district court was correct in finding “no material difference between the evidence of bargaining history before the Court of Appeals in Consolidation Coal and the evidence of bargaining history before this court.” Connors v. Beth Energy Mines, Inc., No. 87-1392, 1989 WL 21328 (E.D.Pa., March 13, 1989) at 6. Finally, we reject Beth Energy’s argument that evidence relating to industry practice with respect to worked lunch hours was improperly considered by the district court. In an affidavit made by Judy L. Lance, the Fund’s Audit Manager, Lance stated that her audit review of the top 40 contributors to the Funds revealed only three instances in which the auditors identified underpayment of contributions to the Funds because of improper reporting of worked lunch hours. Beth Energy contends that the Trustees gave up the right to rely on this affidavit and any other evidence of industry practice when they refused to answer Beth Energy’s Interrogatory 16. The Trustees declined to answer this interrogatory, which sought identification of employers determined by audit to have credited lunch hours improperly, on the ground that “a response would serve no purpose.” Based upon this refusal, Beth Energy contends that “through that sworn discovery statement, the Funds ... effectively stated that industry practice is irrelevant to this case.” We do not believe that the Trustees’ refusal to answer the interrogatory posed mandated the district court to refuse consideration of evidence relevant to industry practice. Given the Trustees’ rather vague response to the interrogatory, Beth Energy certainly could have sought clarification of the Trustees’ intent to rely on industry practice, moved to compel discovery, or countered the material set forth in the affidavits. In sum, we find nothing in the record before us which would remove this case from the holding in Consolidation Coal and will, therefore, affirm the district court’s determination that Beth Energy is required, under the terms of the Wage Agreements, to make Fund contributions based upon worked lunch hours. III. Having concluded that Beth Energy is liable to the Funds for worked lunch hour contributions, we must next determine the extent of that liability. Relying on the applicable three year statute of limitations, the district court granted Beth Energy’s motion for partial summary judgment and limited the Funds’ recovery to those contributions which were due from March 11, 1984 forward. The Funds argue that the district court erred in failing to apply the doctrine of equitable tolling to stay the running of the statute. Our review is plenary. In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 319 (3d Cir.1983). Under Pennsylvania law governing the doctrine of equitable tolling, it is clear that “the courts have not required fraud in the strictest sense, encompassing an intent to deceive, but rather have defined fraud in the broadest sense to include an unintentional deception.” Nesbit v. Erie Coach Co., 416 Pa. 89, 96, 204 A.2d 473, 476 (1964). Even under this broad interpretation of fraud, however, it is clear that, in order for the doctrine of equitable tolling to apply, the defendants’ actions must have amounted “to an affirmative inducement to plaintiff to delay bringing the action.” Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 556 (3d Cir.1985). The intent of the defendant in making this affirmative inducement is irrelevant; “it is the effect upon the plaintiff, not the intention of the defendant, that is pertinent.” Swietlowich v. County of Bucks, 610 F.2d 1157, 1162 (3d Cir.1979). The burden of proving fraud or concealment, whether intentional or not, rests upon the party making the claim. The evidence presented must be clear, precise and convincing. “[M]ere mistake, misunderstanding, or lack of knowledge is not sufficient to toll the statute of limitations.” Molineaux v. Reed, 516 Pa. 398, 403, 532 A.2d 792, 794 (1987). Our review of the record reveals no “clear, precise and convincing evidence” to establish that Beth Energy acted intentionally to mislead the Trustees in revising its method of accounting for worked lunch hours. The inquiry thus becomes whether Beth Energy has engaged in unintentional deception. The Funds argue that Beth Energy’s change in the reporting of worked lunch hours without notification to the Funds constituted an affirmative act which had the effect of deceiving the Funds so that suit was delayed. The Trustees argue that “through no fault of their own, the Trustees were unaware of Beth Energy’s practice of misreporting worked lunch hours and, thus, were unaware of their claim for delinquent contributions.” The claim was not discovered until 1985 when the Funds conducted an audit of Beth Elk-horn records. In our view, the record does not support the Trustees’ construction of the facts. We recognize that there is serious disagreement over whether the Funds were notified or became aware of the change in accounting for worked lunch hours at some time prior to the 1985 audit. The precise details of this disagreement are not relevant to this discussion, however, because we find that, even on the basis of what is undisputed, the Funds are not entitled to invoke the doctrine of equitable tolling. The parties agree that at all times relevant to this action, Beth Energy supplied the Funds with bi-weekly magnetic tape reports which contained detailed information on Beth ■ Energy’s accounting for worked lunch hours. In these reports, hours were divided by type, individual employee, and location. It is undisputed that these tapes reflected the change in accounting for worked lunch hours as soon as the change was made. The Trustees admit that the tapes’ “breakdown of hours type included Beth Energy’s reporting of worked lunch hours as union committee time” but argue that “consistent smaller misrepresentations are much more difficult to detect than a one-time large anomaly in reporting.” We believe that while this may be so, these tapes were sufficient to put the Trustees on notice of claims based upon the misreporting of worked lunch hours. As the Trustees have noted, even under accrual of actions and equitable tolling rules, the limitations period begins to run at the point where the plaintiff knew or should have known of the cause of action. See, e.g., Keystone Insurance Co. v. Houghton, 863 F.2d 1125, 1129 (3d Cir.1988) (accrual), and Vernau v. Vic’s Market, Inc., 896 F.2d 43 (3d Cir.1990) (Pennsylvania tolling principles). In light of the bi-weekly reports reflecting the change in accounting for worked lunch hours, we find that the Trustees should have become aware, in the exercise of reasonable dil-igenee, of claims arising from accounting for worked lunch hours, prior to the 1985 audit. We will, therefore, affirm the district court’s conclusion that those claims based on misreporting of worked lunch hours prior to March 11, 1984, are time-barred. IV. The final issue which we are called upon to address involves the district court’s award of and Beth Energy’s challenge to interest and liquidated damages incurred during periods of court-imposed delay. Beth Energy argues that in enacting ERISA, Congress did not contemplate that damage and interest assessments would continue during the period of delay which resulted from the district court’s suspending these proceedings pending our decision in Consolidation Coal. Beth Energy also argues that interest and damages should not have been assessed during a period of extension of time for discovery requested by the Trustees which amounted to 103 days for which interest and damages were calculated at $34,533.44. We are asked to rule that the district court’s assessment of this amount was error and that no interest or liquidated damages are due for the court-imposed periods of delay. Here, too, our review is plenary. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir.1981). In order to resolve this question, we look to 29 U.S.C. § 1132(g)(2) which provides that, under ERISA, interest on unpaid contributions and liquidated damages will be awarded to a retirement plan in any successful action based upon delinquent contributions. We have held that the statutory language is clear; the award of damages and interest is mandatory. United Retail and Wholesale Employees Pension Fund v. Yahn and McDonnell, Inc., 787 F.2d 128, 134-35 (3d Cir.1986). Beth Energy is unable to provide us with any authority in support of its proposition that the damage and interest award becomes discretionary during periods of delay not attributable to the defendant. Because we find no reason to believe that we are not bound by the mandatory language of the statute, we will affirm the district court’s award of interest and liquidated damages. V. Having found no error in the district court’s application of our holding in Consolidation Coal to the facts of this case, in its determination that claims prior to March 11, 1984 are time-barred, or in its calculation of interest and damages, we will affirm the judgment of the district court. . These four funds were established in order to provide pension, health, and other welfare benefits to certain miners and their dependents. The levels of benefits to be paid and relevant eligibility requirements are negotiated by the parties to the Wage Agreements. Benefits are paid from contributions made by signatory employers in accordance with formulae set forth in the Wage Agreements. . The Trustees also sought contributions for so-called “grievance-hours.” The grievance hour claims are not at issue here. . The Beth Energy hours accounting system was derived from an instruction booklet prepared by the Funds in conjunction with the parties to the Wage Agreements. The booklet identified four basic categories into which employee hours might fall. “Hours 1" was defined to “[include] all hours worked, or fractions thereof, by all employees. Hours 1 must include all shift time paid for (portal to portal, lunch time, etc.) as such time is specified in the Agreements.” Contributions to the Fund were required for each hour listed in this category. “Hours 2” represented “all time for which employees are paid by the employer but during which no classified work is performed.” This category was to include time spent for vacation, holidays, jury duty, bereavement, etc. “Hours 3" represented sickness and accident hours not paid for by the employer, and “Hours 4" was to include contractual union committee work hours. No Fund contributions were required for Hours 2, 3, or 4. Employees did, however, receive vesting credit and benefit accrual for Hours 3 and 4. .The record reflects a vigorous factual dispute over when the Funds became aware of the change in accounting procedure. Beth Energy contends that the Trustees were notified of the change late in 1983 or 1984. Our analysis does not require that we determine which view of the facts is correct. . The underlying purposes of federal labor policy are best served where the collective bargaining agreement is interpreted and enforced uniformly. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206 (1985). . The district court noted that it had before it the affidavit of Roger Haynes, a participant in the collective bargaining process underlying the Wage Agreements. The Haynes testimony relative to bargaining history was also available to us in Consolidation Coal. . In reaching this conclusion, we have not overlooked Internal Operating Procedure 9.1 which provides that no subsequent panel overrules a published opinion of a previous panel. Rather, we do not regard that procedure as controlling as our decision in Consolidation Coal was predicated on the undisputed facts in that record which were employed to interpret the contract. Beth Energy was not a party to that litigation. We regard Internal Operating Procedure 9.1 as applying to rules of law. . The parties do not dispute that the three year statute of limitations set forth in Pennsylvania’s Wage Payment Collection Law, 43 Pa.Stat.Ann. § 260.9a(g) (Purdon Supp.1985) is controlling. This issue was resolved in Consolidation Coal, 866 F.2d at 604. . We are aware that our affirmance on the equitable toiling issue rests on an analysis different from that employed by the district court. While we believe that the district court may have placed undue emphasis on the issue of intent to deceive, we are confident that the result reached was correct and that any error was harmless. 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_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. UNITED STATES v. JOHNSON et al. No. 8724. Circuit Court of Appeals, Seventh Circuit. April 27, 1945. Rehearing Denied May 11, 1945. See, also, 53 F.Supp. 596. John A. Nash, Albert I. Kegan, Voyle Clark Johnson, and Walter F. Dodd, all of Chicago, Ill., for appellants. J. Albert Woll, U. S. Atty., of Chicago, Ill., and Thomas M. Darnall and Tom C. Clark, both of Washington, D. C., for appellee. Before EVANS, KERNER, and MIN-TON, Circuit Judges. EVANS, Circuit Judge. Appellants were each fined $1,000 upon conviction of a charge of violating the Federal Denture Act, 18 U.S.C.A. § 420f. That Act makes it a criminal offense to send dentures, made from casts or impressions, through the mail or in interstate commerce, into a state which prohibits the taking of impressions by a person not licensed to practice dentistry, and the construction of such dentures by a person other than, or without the authorization or prescription of, a person licensed under the laws of such state to practice dentistry. The indictment, containing eleven counts, charged defendants with sending such dentures to persons in Wisconsin, Michigan, and Indiana, the dentures having been constructed from impressions made by the recipients from materials furnished by defendants. A jury trial was waived; a stipulation of essential facts was filed. The defendants’ motion to quash the indictment and demurrer was overruled by the trial court, which was followed by the imposition of fines and this appeal. The pertinent portions of the Federal statute are set forth in the margin. Also we cite the applicable sections of Wisconsin, Michigan, and Indiana statutes. The gist of appellants’ contentions is that there can be no violation of a valid statute where their customers make impressions of their own mouths, and appellants receive such impressions through the mail, and then construct the artificial teeth therefrom, and mail them back to the customer. Secondly, it is argued, if such action be construed to violate the Acts quoted above, then the Acts must be condemned because no statute may constitutionally prevent a person from taking an impression of his own mouth. Thirdly, the statutes are unconstitutional because they unduly restrict the operation of a dental laboratory to making dentures from casts made by licensed dentists. It is argued such a statute is a denial of an individual’s right to do business. Appellants assert that they rely on the Fifth and Fourteenth Amendments to the Federal Constitution. We deem it unnecessary to dwell at length on any of appellants’ contentions. Conceding for the purpose of this appeal that no law which prohibits a person’s making an impression of his own mouth could be constitutional, appellants here went much further. In doing so, they ran directly into statutes which were valid. We are not as willing as appellants to underestimate — or repudiate or censure— the value of a dentist’s services, nor the necessity for their state licensing to insure a reasonable standard of dental skill and knowledge. The states of Indiana, Michigan, and Wisconsin (inter alia) have seen fit, in the wisdom of their legislators, to protect their citizenry from the lay public’s practice of dentistry. The Federal Government has cooperated and endeavored to bolster the states’ policy by the passage of the Act prohibiting exportation of dentures to a state which prohibits dentures made by lay folks without expert dental supervision, from being made and sold. Appellants fail to see, or profess not to see, the necessity for intelligent and skilled construction of artificial teeth. To the open-minded, the wisdom of this kind of legislation seems quite obvious. It falls within the category of legislation for the public health which is a prime, as well as a worthy, purpose of government. That the Federal Government, under its interstate commerce power may aid such state legislation, is not debatable. Such legislation is constitutionally unchallengeable. The judgment is affirmed. Federal statute: 18 U.S.C.A. § 420f. “It shall be unlawful, in the course of the conduct of a business of constructing or supplying dentures from casts or impressions sent through the mails or in interstate commerce, to use the mails or any instrumentality of interstate commerce for the purpose of sending or bringing into, any State or Territory the laws of which prohibit— “(1) the taking of impressions or casts of the human mouth or teeth by a person not licensed under the laws of such State or Territory to practice dentistry; “(2) the construction or supply of dentures by a person other than, or without the authorization or prescription of, a person licensed under the laws of such State or Territory to practice dentistry; or, “(3) the construction or supply of dentures from impressions or casts made by a person not licensed under the laws of such State or Territory to practice dentistry, any denture constructed from any cast or impression made by any person other than, or without the authorization or prescription of, a person licensed under the laws of the State or Territory into which such denture is sent or brought to practice dentistry.” Wisconsin Statutes, 1943, Sec. 152.02; Burns Indiana Statutes, 1943, Sec. 63-522; Michigan Public Acts, 1939, No. 122, Sec. 14.629. Clark Distilling Co. v. Western Maryland Ry. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann. Cas. 1917B, 845; Whitfield v. State of Ohio, 297 U.S. 431, 56 S.Ct. 532, 80 L.Ed. 778; Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699, 37 A.L.R. 1407; Griswold v. President of United States, 5 Cir., 82 F.2d 922; United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430; Badders v. United States, 240 U.S. 391, 36 S.Ct. 367, 60 L.Ed. 706. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
sc_decisiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. CITY OF BURLINGTON v. DAGUE et al. No. 91-810. Argued April 21, 1992 Decided June 24, 1992 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Kennedy, Souter, and Thomas, JJ., joined. Black-mun, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 567. O’Connor, J., filed a dissenting opinion, post, p. 575. Michael B. Clapp argued the cause and filed briefs for petitioner. Barry L. Goldstein argued the cause for respondents. With him on the brief were William W. Pearson, Guy T Saperstein, and Mari Mayeda. Richard H. Seamon argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Mahoney, Deputy Assistant Attorney General Clegg, Harriet S. Shapiro, Anne S. Almy, and Mark R. Haag. Briefs of amici curiae urging reversal were filed for the District of Columbia et al. by John Payton, Corporation Counsel for the District of Columbia, Charles L. Reischel, Deputy Corporation Counsel, and Donna M. Murasky, Assistant Corporation Counsel, and by the Attorneys General for their respective States as follows: James H. Evans of Alabama, Daniel E. Lungren of California, Robert A Butterworth of Florida, Roland W. Burris of Illinois, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, Scott Harshbarger of Massachusetts, Frankie Sue Del Papa of Nevada, Susan B. Loving of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, Mark W. Barnett of South Dakota, Paul Van Dam of Utah, and James E. Doyle of Wisconsin; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A Samp. Briefs of amici curiae urging affirmance were filed for the Alabama Employment Lawyers Association et al. by Sanford Jay Rosen, Andrea G. Asaro, Steven R. Shapiro, John A Powell, Leon Friedman, Julius L. Chambers, Charles Stephen Ralston, and Terisa E. Chaw; for the American Bar Association by Talbot S. D’Alemberte and Carter G. Phillips; and for the Lawyer’s Committee for Civil Rights Under Law et al. by Roger E. Warin, Jerald S. Howe, Jr., D. Benson Tesdahl, Herbert M. Wachtell, William H. Brown III, Thomas J. Henderson, and Richard T. Seymour. Justice Scalia delivered the opinion of the Court. This case presents the question whether a court, in determining an award of reasonable attorney’s fees under § 7002(e) of the Solid Waste Disposal Act (SWDA), 90 Stat. 2826, as amended, 42 U. S. C. § 6972(e), or § 505(d) of the Federal Water Pollution Control Act (Clean Water Act (CWA)), 86 Stat. 889, as amended, 33 U. S. C. § 1365(d), may enhance the fee award above the “lodestar” amount in order to reflect the fact that the party’s attorneys were retained on a contingent-fee basis and thus assumed the risk of receiving no payment at all for their services. Although different fee-shifting statutes are involved, the question is essentially identical to the one we addressed, but did not resolve, in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U. S. 711 (1987) (Delaware Valley II). I Respondent Ernest Dague, Sr. (whom we will refer to in place of all the respondents), owns land in Vermont adjacent to a landfill that was owned and operated by petitioner city of Burlington. Represented by attorneys retained on a contingent-fee basis, he sued Burlington over its operation of the landfill. The District Court ruled, inter alia, that Burlington had violated provisions of the SWDA and the CWA, and ordered Burlington to close the landfill by January 1,1990. It also determined that Dague was a “substantially prevailing party” entitled to an award of attorney’s fees under the Acts, see 42 U. S. C. § 6972(e); 33 U. S. C. § 1365(d). 732 F. Supp. 458 (Vt. 1989). In calculating the attorney’s fees award, the District Court first found reasonable the figures advanced by Dague for his attorneys’ hourly rates and for the number of hours expended by them, producing a resulting “lodestar” attorney’s fee of $198,027.50. (What our cases have termed the “lodestar” is “the product of reasonable hours times a reasonable rate,” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546, 565 (1986) (Delaware Valley I).) Addressing Dague’s request for a contingency enhancement, the court looked to Circuit precedent, which provided that “‘the rationale that should guide the court’s discretion is whether “[w]ithout the possibility of a fee enhancement. . . competent counsel might refuse to represent [environmental] clients thereby denying them effective access to the courts.”’” App. to Pet. for Cert. 131-132 (quoting Friends of the Earth v. Eastman Kodak Co., 834 F. 2d 295, 298 (CA2 1987), in turn quoting Lewis v. Coughlin, 801 F. 2d 570, 576 (CA2 1986)).. Following this guidance, the court declared that Dague’s “risk of not prevailing was substantial” and that “absent an opportunity for enhancement, [Dague] would have faced substantial difficulty in obtaining counsel of reasonable skill and competence in this complicated field of law.” It concluded that “a 25% enhancement is appropriate, but anything more would be a windfall to the attorneys.” It therefore enhanced the lodestar amount by 25% — $49,506.87. App. to Pet. for Cert. 133, 134. The Court of Appeals affirmed in all respects. Reviewing the various opinions in Delaware Valley II, the court concluded that the issue whether and when a contingency enhancement is warranted remained open, and expressly disagreed with the position taken by some Courts of Appeals that the concurrence in Delaware Valley II was controlling. The court stated that the District Court had correctly relied on Circuit precedent, and, holding that the District Court’s findings were not clearly erroneous, it upheld the 25% contingency enhancement. 935 F. 2d 1343, 1359-1360 (CA2 1991). We granted certiorari only with respect to the propriety of the contingency enhancement. 502 U. S. 1071 (1992). I — i We first provide some background to the issue before us. Fees for legal services in litigation may be either “certain” or “contingent” (or some hybrid of the two). A fee is certain if it is payable without regard to the outcome of the suit; it is contingent if the obligation to pay depends on a particular result’s being obtained. Under the most common • contingent-fee contract for litigation, the attorney receives no payment for his services if his client loses. Under this arrangement, the attorney bears a contingent risk of nonpayment that is the inverse of the case’s prospects of success: if his client has an 80% chance of winning, the attorney’s contingent risk is 20%. In Delaware Valley II, we reversed a judgment that had affirmed enhancement of a fee award to reflect the contingent risk of nonpayment. In the process, we addressed whether the typical federal fee-shifting statute (there, § 304(d) of the Clean Air Act, 42 U. S. C. § 7604(d)) permits an attorney’s fees award to be enhanced on account of contingency. In the principal opinion, Justice White, joined on this point by three other Justices, determined that such enhancement is not permitted. 483 U. S., at 723-727. Justice O’Connor, in an opinion concurring in part and concurring in the judgment, concluded that no enhancement for contingency is appropriate “unless the applicant can establish that without an adjustment for risk the prevailing party would have faced substantial difficulties in finding counsel in the local or other relevant market,” id., at 733 (internal quotation marks omitted), and that any enhancement “must be based on the difference in market treatment of contingent fee cases as a class, rather than on an assessment of the ‘riskiness’ of any particular case,” id., at 731 (emphasis in original). Justice Blackmun’s dissenting opinion, joined by three other Justices, concluded that enhancement for contingency is always statutorily required. Id., at 737-742,754. We turn again to this same issue. t — 4 Section 7002(e) of the SWDA and § 505(d) of the CWA authorize a court to “award costs of litigation (including rea~ sonable attorney ,.. fees)” to a “prevailing or substantially prevailing party.” 42 U. S. C. § 6972(e) (emphasis added); 33 U. S. C. § 1365(d) (emphasis added). This language is similar to that of many other federal fee-shifting statutes, see, e. g., 42 U. S. C. §§ 1988,2000e-5(k), 7604(d); our case law construing what is a “reasonable” fee applies uniformly to all of them. Flight Attendants v. Zipes, 491 U. S. 754, 758, n. 2 (1989). The “lodestar” figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence. We have established a “strong presumption” that the lodestar represents the “reasonable” fee, Delaware Valley I, supra, at 565, and have placed upon the fee applicant who seeks more than that the burden of showing that “such an adjustment is necessary to the determination of a reasonable fee.” Blum v. Stenson, 465 U. S. 886, 898 (1984) (emphasis added). The Court of Appeals held, and Dague argues here, that a “reasonable” fee for attorneys who have been retained on a contingency-fee basis must go beyond the lodestar, to compensate for risk of loss and of consequent nonpayment. Fee-shifting statutes should be construed, he contends, to replicate the economic incentives that operate in the private legal market, where attorneys working on a contingency-fee basis can be expected to charge some premium over their ordinary hourly rates. Petitioner Burlington argues, by contrast, that the lodestar fee may not be enhanced for contingency. We note at the outset that an enhancement for contingency would likely duplicate in substantial part factors already subsumed in the lodestar. The risk of loss in a particular case (and, therefore, the attorney’s contingent risk) is the product of two factors: (1) the legal and factual merits of the claim, and (2) the difficulty of establishing those merits. The second factor, however, is ordinarily reflected in the lodestar — either in the higher number of hours expended to overcome the difficulty, or in the higher hourly rate of the attorney skilled and experienced enough to do so. Blum, supra, at 898-899. Taking account of it again through lodestar enhancement amounts to double counting. Delaware Valley II, 483 U. S., at 726-727 (plurality opinion). The first factor (relative merits of the claim) is not reflected in the lodestar, but there are good reasons why it should play no part in the calculation of the award. It is, of course, a factor that always exists (no claim has a 100% chance of success), so that computation of the lodestar would never end the court’s inquiry in contingent-fee cases. See id., at 740 (Blackmun, J., dissenting). Moreover, the consequence of awarding contingency enhancement to take account of this “merits” factor would be to provide attorneys with the same incentive to bring relatively meritless claims as relatively meritorious ones. Assume, for example, two claims, one with underlying merit of 20%, the other of 80%. Absent any contingency enhancement, a contingent-fee attorney would prefer to take the latter, since he is four times more likely to be paid. But with a contingency enhancement, this preference will disappear: the enhancement for the 20% claim would be a multiplier of 5 (100/20), which is quadruple the 1.25 multiplier (100/80) that would attach to the 80% claim. Thus, enhancement for the contingency risk posed by each case would encourage meritorious claims to be brought, but only at the social cost of indiscriminately encouraging nonmeritorious claims to be brought as well. We think that an unlikely objective of the “reasonable fees” provisions. “These statutes were not designed as a form of economic relief to improve the financial lot of lawyers.” Delaware Valley I, 478 U. S., at 565. Instead of enhancement based upon the contingency risk posed by each case, Dague urges that we adopt the approach set forth in the Delaware Valley II concurrence. We decline to do so, first and foremost because we do not see how it can intelligibly be applied. On the one hand, it would require the party seeking contingency enhancement to “establish that without the adjustment for risk [he] ‘would have faced substantial difficulties in finding counsel in the local or other relevant market/” 488 U. S., at 733. On the other hand, it would forbid enhancement based “on an assessment of the ‘riskiness’ of any particular case.”' Id., at 731; see id., at 734 (no enhancement “based on ‘legal’ risks or risks peculiar to the case”). But since the predominant reason that a contingent-fee claimant has difficulty finding counsel in any legal market where the winner’s attorney’s fees will be paid by the loser is that attorneys view his case as too risky (i. e., too unlikely to succeed), these two propositions, as a practical matter, collide. See King v. Palmer, 292 U. S. App. D. C. 362, 371, 950 F. 2d 771, 780 (1991) (en banc), cert. pending sub nom. King v. Ridley, No. 91-1370. A second difficulty with the approach taken by the concurrence in Delaware Valley II is that it would base the contingency enhancement on “the difference in market treatment of contingent fee cases as a class.” 483 U. S., at 731 (emphasis in original). To begin with, for a very large proportion of contingency-fee cases — those seeking not monetary damages but injunctive or other equitable relief — there is no “market treatment.” Such eases scarcely exist, except to the extent Congress has created an artificial “market” for them by fee shifting — and looking to that “market” for the meaning of fee shifting is obviously circular. Our decrees would follow the “market,” which in turn is based on our decrees. See King v. Palmer, 285 U. S. App. D. C. 68, 76, 906 F. 2d 762, 770 (1990) (Williams, J., concurring) (“I see the judicial judgment as defining the market, not vice versa”), vacated, 292 U. S. App. D. C. 362, 950 F. 2d 771 (1991), cert. pending sub nom. King v. Ridley, No. 91-1370. But even apart from that difficulty, any approach that applies uniform treatment to the entire class of contingent-fee cases, or to any conceivable subject-matter-based subclass, cannot possibly achieve the supposed goal of mirroring market incentives. As discussed above, the contingent risk of a case (and hence the difficulty of getting contingent-fee lawyers to take it) depends principally upon its particular merits. Contingency enhancement calculated on any class-wide basis, therefore, guarantees at best (leaving aside the double-counting problem described earlier) that those cases within the class that have the class-average chance of success will be compensated according to what the “market” requires to produce the services, and that all cases having above-class-average chance of success will be overcompensated. Looking beyond the Delaware Valley II concurrence’s approach, we perceive no other basis, fairly derivable from the fee-shifting statutes, by which contingency enhancement, if adopted, could be restricted to fewer than all contingent-fee cases. And we see a number of reasons for concluding that no contingency enhancement whatever is compatible with the fee-shifting statutes at issue. First, just as the statutory language limiting fees to prevailing (or substantially prevailing) parties bars a prevailing plaintiff from recovering fees relating to claims on which he lost, Hensley v. Eckerhart, 461 U. S. 424 (1988), so should it bar a prevailing plaintiff from recovering for the risk of loss. See Delaware Valley II, supra, at 719-720, 724-725 (principal opinion). An attorney operating on a contingency-fee basis pools the risks presented by his various cases: cases that turn out to be successful pay for the time he gambled on those that did not. To award a contingency enhancement under a fee-shifting statute would in effect pay for the attorney’s time (or anticipated time) in cases where his client does not prevail. Second, both before and since Delaware Valley II, “we have generally turned away from the contingent-fee model” — which would make the fee award a percentage of the value of the relief awarded in the primary action — “to the lodestar model.” Venegas v. Mitchell, 495 U. S. 82, 87 (1990). We have done so, it must be noted, even though the lodestar model often (perhaps, generally) results in a larger fee award than the contingent-fee model. See, e. g., Report of the Federal Courts Study Committee 104 (Apr. 2, 1990) (lodestar method may “give lawyers incentives to run up hours unnecessarily, which can lead to overeompensation”). For example, in Blanchard v. Bergeron, 489 U. S. 87 (1989), we held that the lodestar governed, even though it produced a fee that substantially exceeded the amount provided in the contingent-fee agreement between plaintiff and his counsel (which was self-evidently an amount adequate to attract the needed legal services). Id., at 96. Contingency enhancement is a feature inherent in the contingent-fee model (since attorneys factor in the particular risks of a case in negotiating their fee and in deciding whether to accept the case). To engraft this feature onto the lodestar model would be to concoct a hybrid scheme that resorts to the contingent-fee model to increase a fee award but not to reduce it. Contingency enhancement is therefore not consistent with our general rejection of the contingent-fee model for fee awards, nor is it necessary to the determination of a reasonable fee. And finally, the interest in ready administrability that has underlain our adoption of the lodestar approach, see, e. g., Hensley, 461 U. S., at 433, and the related interest in avoiding burdensome satellite litigation (the fee application “should not result in a second major litigation,” id., at 437), counsel strongly against adoption of contingency enhancement. Contingency enhancement would make the setting of fees more complex and arbitrary, hence more unpredictable, and hence more litigable. It is neither necessary nor even possible for application of the fee-shifting statutes to mimic the intricacies of the fee-paying market in every respect. See Delaware Valley I, 478 U. S., at 565. * * * Adopting the position set forth in Justice White s opinion in Delaware Valley II, 483 U. S., at 715-727, we hold that enhancement for contingency is not permitted under the fee-shifting statutes at issue. We reverse the Court of Appeals' judgment insofar as it affirmed the 25% enhancement of the lodestar. It is so ordered. Contrary to Justice Blackmun’s understanding, post, at 572, there is no reason in theory why the contingent-fee model could not apply to relief other than damages; where injunctive relief is obtained, for example, the fee award would simply be a percentage of the value of the injunctive relief There would be, to be sure, severe problems of administration in determining the value of injunctive relief, but such problems simply highlight why we have rejected the contingent-fee model in favor of the lodestar model. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_appel2_7_5	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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). Leonard N. BEBCHICK and Leonard S. Goodman, Appellants, v. PUBLIC UTILITIES COMMISSION OF DISTRICT OF COLUMBIA and D. C. Transit System, Inc., Appellees. No. 15999. United States Court of Appeals District of Columbia Circuit. Argued Nov. 30, 1960. Decided Jan. 12, 1961. Messrs. Leonard N. Bebchick and Leonard S. Goodman, appellants pro se. Mr. George F. Donnella, Counsel, Public Utilities Commission of the District of Columbia, with whom Messrs. Chester H. Gray, General Counsel, Public Utilities Commission of the District of Columbia, and Andrew G. Conlyn, Counsel, Public Utilities Commission of the District of Columbia, were on the brief, for appellee Public Utilities Commission of the District' of Columbia. Mr. Owen J. Malone, Washington, D. C., for appellee D. C. Transit System, Inc. Mr. Harvey M. Spear, New York City, also entered án appearance for ap-pellee D. C. Transit System, Inc. Before Washington, Danaher and Bastian, Circuit Judges. WASHINGTON, Circuit Judge. This case involves an appeal from a decision of the Public Utilities Commission of the District of Columbia, relative to rates of bus and streetcar fares charged by appellee D. C. Transit System, Inc. Section 43-705 of the D.C.Code provides that “Any * * * person * * * affected by any final order or decision of the Commission, other than an order fixing or determining the value of the property of a public utility in a proceeding solely for that purpose, may” appeal to the District Court and from that court to this. See Pollak v. Public Utilities Commission, 1951, 89 U.S.App.D.C. 94, 191 F.2d 450. Appellants’ petition of appeal, filed pursuant to this section, was dismissed by the District Court on the ground “that the record certified to the Court contains no evidence to support the plaintiffs’ allegation that they are riders of Transit vehicles or are persons affected by the Order of the Commission appealed from [and] that, accordingly, within the purview of the statute governing review of orders of the Commission, the plaintiffs are without standing to bring this appeal. * * * ” The present appeal followed. Appellants contend that the record certified to the court demonstrates, at a minimum, that appellant Goodman is a “transit rider,” i. e., a user of Transit System vehicles; that from an affidavit properly before the court, although not a part of the certified record, it should have concluded that appellant Bebchick is also a “transit rider”; and that as such, both are “persons * * * affected” within the meaning of the statute. Appellant Goodman filed a petition to intervene in the proceedings before the Commission in which he made the sworn statement that he is a regular commuter on Transit • System vehicles. In its order granting intervention the Commission expressly relied upon this allegation. We believe that upon this evidence, which was a part of the record certified by the Commission, the District Court should have found that appellant Goodman is a transit rider. Although appellant Bebchick did not file a petition to intervene, he did join in the petition for reconsideration and alleged therein that he is a transit rider. Moreover, appellant Bebchick subsequently filed with the District Court an affidavit in which he stated that he is “an occasional and casual customer and rider of the buses and streetcars of D. C. Transit System, Inc.” We are of the opinion that this affidavit, although dehors the certified record, was proper for consideration below, the question being one of standing to bring the appeal, and that on the basis of all the evidence properly before it the trial court should have found that appellant Bebchick is also a transit rider. On the facts here, we believe that appellants, as transit riders, qualify as persons entitled to appeal. In United States v. Public Utilities Commission, 1945, 80 U.S.App.D.C. 227, 231, 151 F.2d 609, 613, we held that the language of Section 43-705 of the D.C.Code and its companion sections-manifests “an intention that consumers [of electric power] shall have a right to challenge the Commission’s actions.” This right accrues with equal force to users of transit facilities. Poliak v. Public Utilities Commission, supra. The order appealed from raises the cash fare for a single trip from 20 cents to 25 cents, but does not increase the token fare of 5 for $1.00, or 20 cents each. Appellees argue that transit riders are not affected by the change in cash fare sinee they can continue to travel at the old rates if they use tokens. The vice of this argument is that it proves too much, since presumably it would bar appeal from an order raising cash fares to 40 cents or 50 cents or even a dollar, so long as token fares were not increased. Manifestly appellees expect the new fare schedule to affect Transit’s revenues in a favorable and meaningful way, or they would not have provided for it. It must therefore affect transit riders, from whose pockets the additional revenues are expected to come. We hold that the complaint ought not have been dismissed for lack of standing, and order the ease remanded to the District Court for further proceedings. Reversed and remanded. . Reversed on other grounds, 1952, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068. . See Seatrain Lines, Inc. v. United States, D.C.Del.1957, 152 F.Supp. 619, 622-623. This point is conceded by ap-pellee Transit System, although not by appellee Commission. . Single tokens, however, are not offered: a lot of 5 is the smallest unit sold. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_appnatpr	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 "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. UNITED STATES of America, Appellee, v. Fernando RODRIGUEZ, Defendant-Appellant. No. 345, Docket 89-1313. United States Court of Appeals, Second Circuit. Argued Nov. 14, 1989. Decided Dec. 26, 1989. Jo Ann Harris, New York City, for defendant-appellant. Peter K. Vigeland, New York City, Asst. U.S. Atty. for the S.D.N.Y. (Benito Romano, U.S. Atty. for the S.D.N.Y., Kerri Martin Bartlett, Asst. U.S. Atty., of counsel), for appellee. Before LUMBARD, FEINBERG and MESKILL, Circuit Judges. FEINBERG, Circuit Judge: Defendant Fernando Rodriguez appeals from a judgment of conviction, dated June 15, 1989 in the United States District Court for the Southern District of New York, Thomas P. Griesa, J. Rodriguez pled guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841, and was sentenced to ten years in prison. Rodriguez appeals, contending, among other things, that the government’s notice of appeal in an earlier phase of this case was untimely. According to Rodriguez, this prevented the district court from imposing the sentence he now claims is a nullity. We affirm. Background To understand Rodriguez’s argument on appeal, it is necessary to know the timing of certain events in the district court. Thus, we spell out in detail the complicated procedural history of this case. Following his arrest, Rodriguez engaged in plea negotiations with the government. Rodriguez’s offense occurred in April 1988, well after November 1, 1987, the effective date of the new Sentencing Guidelines under the Sentencing Reform Act of 1984, which we shall refer to collectively as “the new law.” The district judge, however, had held the Sentencing Guidelines unconstitutional, and it became clear that he intended to sentence Rodriguez under the statutes in effect prior to the new law, which we shall call “the old law.” A key difference between the old law and the new law concerned the rate at which a prisoner can earn “good time,” i.e., credit against the length of the sentence by good conduct. Under the old law, a person serving a 10-year sentence could earn good time at the rate of 10 days a month, or 120 days a year, for a total of 1,200 days over 10 years. Under the new law, see 18 U.S.C. § 3624(b), a prisoner could earn no good time until after he had served a year, and could earn no more than 54 days of good time a year, for a total of 486 days over 10 years. This disparity was obviously significant for Rodriguez. Before he formally pled guilty, he moved in the district court for a ruling that he would be sentenced under the good time provisions of the old law. The basis of the motion was that the Sentencing Guidelines, which the judge had already held unconstitutional, were not sev-erable from other provisions of the Sentencing Reform Act, including the new, restrictive good time provisions. The government opposed this position, and asked the judge to rule that the good time provisions of the new law applied even if he declined to sentence Rodriguez under the Sentencing Guidelines. In a written opinion, dated October 11, 1988, the judge held that the Sentencing Guidelines and the good time provisions of the Sentencing Reform Act were non-sever-able and that Rodriguez would be sentenced “in all respects” under the old law. Thereafter, on October 26, 1988, Rodriguez pled guilty to possession, with intent to distribute, of 14 kilograms of cocaine the preceding April. On January 10, 1989, the judge sentenced Rodriguez to ten years in prison, which was the minimum mandatory sentence under the old law for the offense. The judgment of conviction was actually entered in the criminal docket on January 13, 1989, and we shall refer to the judgment hereafter by that date. On January 18, 1989, the United States Supreme Court decided Mistretta v. United States, — U.S. -, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), which held the Sentencing Guidelines constitutional. Shortly thereafter, on February 9, 1989, the government moved in the district court for reconsideration of Rodriguez’s sentence under the old law in light of Mistretta. On March 6, 1989, however — before the district court had ruled on the government’s motion for reconsideration — the government sent a letter to the district court withdrawing the motion. The government stated that it had “upon review, determined that the better course is to appeal the sentence and obtain a remand.” It asked the district court, under Federal Rule of Appellate Procedure (FRAP) 4(b), to extend its time for appeal, presumably under the provision that allows an extension for a period “not to exceed 30 days,” upon a showing of “excusable neglect.” The district court granted the motion and extended the time to appeal to March 15, 1989. On the same day, it endorsed the government’s motion for reconsideration with the words “[mjotion denied as withdrawn. So ordered.” Also on the same day, the government filed its notice of appeal. In April 1989, while its appeal was pending, the government moved in this court for remand to the district court for resen-tencing under the new law in light of Mis-tretta. We granted the motion on consent in May 1988. After remand, on June 15, 1989, the district court resentenced Rodriguez, this time under the new law, and again sentenced him to ten years in prison. It also made clear that the restrictive good time provisions of the new law should apply. This appeal followed. Discussion Rodriguez raises several contentions on appeal, only one of which merits full discussion. He points out that the government’s March 15, 1989 notice of appeal from the district court’s first sentence, i.e., under the old law, was filed 61 days after entry of the judgment of conviction in the criminal docket of the district court on January 13, 1989. Because FRAP 4(b) only authorizes a district court to extend the government’s time for appeal to a total of 60 days after the judgment of conviction is entered “in the criminal docket,” Rodriguez argues that the government’s notice of appeal was untimely. Thus, he contends that this court had no power to remand for resentencing, and that the district court could not impose a second sentence on June 15, 1989 under the new law, including the new law’s restrictive good time provisions. Accordingly, appellant argues, the June 15, 1989 sentence is a nullity and the January 13, 1989 sentence under the old law remains in effect. The key issue in appellant’s argument is whether the government’s March 15, 1989 notice of appeal from the January 13 sentence was timely. We believe that it was. The FRAP 4(b) clock stops when a party files a motion for reconsideration; that is, a timely motion for reconsideration renders the judgment non-final for appeal purposes, United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 19, 50 L.Ed.2d 8 (1976) (per curiam), and thus tolls the time for appeal under FRAP 4(b). See United States v. Lefler, 880 F.2d 233, 235 (9th Cir.1989). Once the district court denies the motion, the clock is reset to zero, and the full time for appeal “begins to run anew from the date of the entry of the order disposing of the motion.” 9 Moore's Federal Practice ¶ 204.17, at 4-137 (2d ed. 1989) (footnote omitted). “Accordingly, the government has thirty days from the denial of its motion for reconsideration to file a notice of appeal.” United States v. Shaffer, 789 F.2d 682, 686 n. 3 (9th Cir.1986). It is conceded that the government had at least 30 days to appeal from the January 13, 1989 judgment of conviction. Within that period—on February 9, 1989—the government moved for reconsideration. Under the cases just cited, this stopped the running of the time period clock. On March 15, the district court endorsed the motion for reconsideration of the January 13 sentence with the words “[mjotion denied as withdrawn.” It seems reasonable to construe this as a denial of the government’s motion. Under Dieter, the finality of the judgment was thus suspended until March 15. See Dieter, 429 U.S. at 8, 97 S.Ct. at 19. The full 30-day clock started running again on March 15, and the government’s notice of appeal filed the same day was obviously timely. However, the government candidly concedes that it withdrew its motion for reconsideration in its letter of March 6, before the district court had ruled, and does not make the argument set forth above. It claims instead that if a motion for reconsideration that is ultimately denied stops the running of the FRAP 4(b) appeal period until the motion is decided, a motion that is ultimately withdrawn has the same effect — at least until the day it is withdrawn. The question whether a withdrawn motion for reconsideration tolls the time for appeal under FRAP 4(b) seems to be one of first impression. The government does not cite us to any case in which this court — or, indeed, any court — has considered the issue. Nor has our research revealed any such decision. Nevertheless, we agree with the government that the filing of the motion for reconsideration stayed the running of the time for appeal under FRAP 4(b), even though the motion was withdrawn on March 6. We need not decide whether the time period was tolled only until March 6, when the motion was withdrawn, or until March 15, when the district court acknowledged that the motion was withdrawn and denied it on that basis; in either event, the subsequent notice of appeal was timely, because it was filed within 30 days of either of these two dates as required by FRAP 4(b). The government’s argument seems sound, at least in the absence of evidence that the government filed and then withdrew its motion for reconsideration in bad faith, as part of some sort of hardball litigation strategy, or that the government was guilty of neglect. If that were the case, we might well rule differently. But here, the government was understandably unsure how to proceed after the Supreme Court’s decision in Mistretta upholding the Guidelines. Although the government initially decided to move in the district court for reconsideration of Rodriguez’s sentence, the Justice Department later advised that the government should instead proceed via appeal. As the district court put it, “all that was involved here was a consideration of what is the appropriate procedural path to take. I mean, they were not sitting around with the ... thing lying in a drawer being neglected.” We note also that at least two other reported decisions have concluded that withdrawn motions in analogous situations toll the time for appeal. See Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1442 (9th Cir.1986) (FRAP 4(a)(4) appeal period tolled by timely motion to vacate or stay judgment under FRCP 59, even though motion withdrawn before district court ruled on the motion); United States v. McGrath, 613 F.2d 361, 366 (2d Cir.1979) (notice of appeal that is withdrawn still tolls time period under Speedy Trial Act), cert, denied sub nom. Buckle v. United States, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980). Thus, we conclude that a timely motion staying the finality of a judgment will toll the period for appeal at least until the motion is withdrawn, and probably until the district court takes some official action to acknowledge the withdrawal of the motion. Accordingly, the government’s March 15, 1989 notice of appeal was timely, and the district court properly resentenced Rodriguez under the new law, including the new good time provisions. Rodriguez also argues that the resentence, which exposed him to harsher good time provisions, was invalid because it subjected him to double jeopardy and violated the doctrine of separation of powers. We do not agree. Rodriguez’s double jeopardy argument is foreclosed by United States v. DiFrancesco, 449 U.S. 117, 136, 101 S.Ct. 426, 437, 66 L.Ed.2d 328 (1980). The separation of powers argument is similarly without merit. The judge did not direct the executive branch (the Bureau of Prisons) to determine good time in a particular way — the Sentencing Reform Act does that. The judge merely ruled, correctly, that the new law applies to the sentence. Judgment affirmed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_appfiduc	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. AUTO OWNERS INSURANCE COMPANY, a Michigan Corporation, Plaintiff-Appellee, v. John David BASS and Gloria Jean Bass, Defendants-Appellants. No. 80-7741. United States Court of Appeals, Eleventh Circuit. Sept. 1, 1982. Hornsby & Schmitt, Steven F. Schmitt, Tallassee, Ala., for defendants-appellants. Lloyd, Ennis & Lloyd, John T. Ennis, Sr., Birmingham, Ala., for plaintiff-appellee. Before GODBOLD, Chief Judge, MERRITT and HENDERSON, Circuit Judges. Honorable Gilbert S. Merritt, U. S. Circuit Judge for the Sixth Circuit, sitting by designation. GODBOLD, Chief Judge: This is an Alabama diversity suit by Auto Owners Insurance Company against its insureds John David Bass and Gloria Jean Bass seeking to recover amounts it had paid to loss payees for a fire loss on the Bass home and also claiming punitive damages for fraud by the Basses. The precise allegations are significant and will be discussed later in this opinion, but, described in general terms, Auto Owners asserted that John Bass intentionally burned the home and made false and fraudulent claims and statements concerning both the fire and the losses incurred. It charged that Gloria knew of John’s setting the fire and participated in false swearing concerning the fire and the loss. John and Gloria counterclaimed for amounts allegedly still owing under the policy. Following a trial in which John appeared pro se for himself and his wife, a jury found for Auto Owners and awarded $82,239 compensatory damages and $50,000 punitive damages. We affirm the judgment against John and reverse the judgment as to Gloria. I. The defective verdict The general jury verdict read: We, the Jury, find for the plaintiff and award $82,239.22 compensatory damages and $50,000.00 punitive damages. This the 19th day of August, 1980. There were no special interrogatories. The court entered judgment as follows: It is hereby the Finding and Judgment of this Court that John David Bass and Gloria Jean Bass did commit willful and malicious fraud against the Plaintiff, Auto-Owners’ Insurance Company. It is hereby ORDERED ADJUDGED and DECREED as follows: The Defendants shall pay to Plaintiff the sum of $82,239.22 plus six percent interest from the date of this Judgment in compensatory damages. The Defendants shall also pay to Plaintiff the additional sum of $50,000.00 plus six percent interest from the date of this Judgment in punitive damages with costs assessed against the Defendants. No one objected to the form of the verdict, or the proposed forms submitted to the jury, or the form of the judgment. On appeal the defendants contend the judgment should be set aside and a new trial granted because it is based on a verdict for the plaintiff but against no one. Unquestionably the verdict is defective. If a verdict is so ambiguous a reasonable person cannot determine the jury’s intent the verdict cannot stand. See generally Denham v. Yancey, 19 Ala.App. 45, 95 So. 201 (1922). [T]he sufficiency of a verdict, reasonably interpreted as to its language, depends upon it being capable of definiteness when referred to the pleadings and papers in the case, the pertinent entries, and under the interpretation of the law given by the court to the jury. In Hopkins v. Duggar, 204 Ala. 626, 628, 87 So. 103, 104, Mr. Justice Sayre observed: “The real question is whether the verdict was not hopelessly defective and so afforded no proper basis for the judgment. This point was not raised in the trial court. It is raised now for the first time. In order that the objection should avail it is necessary that the judgment be found to be wholly void. Intendments are indulged in favor of judgments.” Was, then, the verdict rendered void, under the issues of fact submitted by the court and instructions interpreting the law having application thereto, or was it definite and complete when referred to the issues submitted, to support the judgment entered thereon? Penney v. State, 229 Ala. 36, 155 So. 576, 578 (1934). [Wjhere the language of judgments, or verdicts can be reasonably interpreted by reference to the pleadings and papers in the case, and the instructions of the court, then on such basis intendments are indulged in favor of judgments. The real question is whether the verdict was hopelessly defective thereby affording no proper basis for a judgment. Reynolds Brothers Lumber Co. v. W. S. Newell Construction Co., 284 Ala. 352, 224 So.2d 899, 902 (1969). One of the few federal cases is Moore v. Harjo, 144 F.2d 318, 321 (10th Cir. 1944) where the court said: Where a judgment or decree is ambiguous or obscure, and fails to express the final determination of the court with clarity or accuracy, reference may be had to the pleadings, the verdict, the findings, and the entire record for the purpose of ascertaining what was determined. We need not pause over the argument that the verdict can have no effect because it does not say “against defendants” (or a named defendant). The verdict was intended to be against some one or more persons. John and Gloria were the only defendants and the only persons against whom the damages referred to in the verdict could be awarded. The question rather is whether the verdict can be interpreted reasonably and with sufficient certainty as being against both John and Gloria, or against only one of them, and if one which one. In pursuit of this inquiry we turn to examination of the pleadings, the evidence and events at the trial, and the jury instructions. The complaint alleged that Auto Owners issued a policy to the defendants on their home. It charged that John committed acts of fraud or false swearing by: (a) deliberately causing an incendiary fire in their dwelling with intent to defraud; (b) filing a false and fraudulent inventory; (c) willfully concealing material facts about the contents of the home and the cause of the fire; (d) falsely swearing to material facts in a statement given the company. It charged Gloria knew or should have known of John’s fraudulent conduct or false swearing with intent to defraud the company. Finally, it alleged that as a direct and proximate result of the fraudulent conduct of the defendants the plaintiff paid fire loss proceeds to two loss payees. The pretrial order restated plaintiff’s position to be: that John, with the knowledge of Gloria, set fire to the house; that both committed fraud in causing the fire to be set; alternatively, as to Gloria, if she had no knowledge of a plan to burn the house, she conspired to conceal from the insurance company the facts concerning the loss. We have read the record. There was sufficient evidence to submit to the jury the issue of liability of Gloria on the basis that she knew of John’s setting the fire. She was present at the home with John and her children when the fire occurred during early morning hours. She was dressed when she escaped from the house. There was some inconsistencies in her stories about removal of items from the house. Also the evidence permitted the jury to infer that she assisted in concealing facts on the cause of the fire and the extent of loss. Thus the jury could have found her liable. This is a long way from saying with any degree of certainty that a verdict against her was what the jury had in mind. John was the primary actor throughout and Auto Owners’ primary target at trial. There was no direct evidence of who, if anyone, set the fire. Experts testified that they found evidence that an accelerant— gasoline or a similar means — had been used, and they found other evidence that the fire had been set. Much of the trial was devoted to testimony concerning the family’s precarious financial position. Mortgages on the house were in default. John was being pressed for payments. He was overdrawn in his bank accounts, and he was earnestly seeking money. The fire occurred April 17, 1979. On March 12, 1979, John had increased the coverage on the dwelling from $84,000 to $90,000, which increased other coverages under the homeowner’s policy as well. Auto Owners’ stated theory was that John set the fire. It made no contention that Gloria set it (beyond a single statement in closing argument, discussed below). The inventory of personal property destroyed was prepared by John; Gloria stated that from time to time she told him of items that she had remembered that should be included. The complex financial dealings preceding the fire were carried on by John. In approximately an hour of oral argument Auto Owners examined minutely John’s affairs and conduct before, during and after the fire, and connected up its proof to every theory of liability against him for both compensatory and punitive damages. During this hour there was but a single reference to alleged liability of Gloria. Counsel said “John Bass and Gloria Jean Bass burned that house down.” We have considered the jury instructions not for correctness, because there was no objection to them, but to see if they assist in resolving the ambiguity of the verdict. Insofar as intent of the jury to subject Gloria to judgment, they contribute no certainty to the uncertain verdict. The instructions are a confusing mixture of language concerning liability of the husband, liability of the defendant (singular), and liability of the defendants (plural) (emphasis is added throughout): One of the things that the Auto Owners claim is that one or both of the insured with actual intent to deceive or to increase the loss included some items in their proof of loss additional to those actually destroyed by the fire in that proof of loss and that the policy is voided thereby. And I charge you that if an insured with actual intent to deceive or to increase the loss does include items additional to those items actually destroyed by fire in his proof of loss, then the policy is voided and the defendant may not recover any proceeds under the policy and the plaintiff should recover its actual damages claimed which — excuse me, its actual damages which approximately resulted from the defendants’ said acts or actions. Another aspect of the case, which the insurance company says occurred, is that the defendant deliberately and with intent to defraud set fire to his own house for the purpose of collecting under his policy. And the law is that if you find by a preponderance of the evidence that the defendant wilfully set the fire which caused the destruction of his home and ear, you must find for the insurance company and award damages in an amount that the preponderance of the evidence shows the insurance company paid out of the investigation, the payment of mortgages and the other items of expenses that would not have been incurred but for the said act of the defendants. Now, in this case the insurance company has sought not only its actual damages, which it says resulted approximately from the wrongful acts of Mr. and Mrs. Bass, it claims punitive damages of fifty thousand dollars. That is in addition to actual damages. In order to award punitive damages you must find that the defendant acted maliciously, wilfully, or with reckless disregard for the rights of others or that he or she made false statements knowingly and with the intent to cheat. Now, the intentional burning of a dwelling with intent to defraud an insurance company is by law a malicious and wrongful act with reckless or wanton disregard for the rights of others. If you find that the defendant committed arson by deliberately burning his house, you should award actual damages and you may award punitive damages to the insurance company. And if you feel the evidence shows by a preponderance of it, a wilful and wrongful act as I have described to you by Mr. Bass and Mrs. Bass, you may include in your award an amount of money for punitive damages which you feel with [sic] adequately punish the wrongdoer and set an example to others who might be inclined to do likewise. The trial court instructed as follows on the alternate forms of verdict: The first of them is a proposed jury verdict for the plaintiff insurance company. “We the jury find the plaintiff — excuse me — find for the plaintiff and award blank dollars compensatory damages.” Now, that is the amount that will compensate the insurance company for whatever damages occurred to it because of a wrongful act if any by the Basses. “And blank dollars punitive damages.” The punitive damages are the damages to punish the Basses for the wrongful act under the circumstances that I have described to you if they committed any such wrongful act. I will go back over: “We the jury find for the plaintiff and award blank dollars punitive damages. This the blank day of August, nineteen eighty.” Add a line here under that line, foreperson. You will go back to the jury room and select one of your members to act as your foreperson. That person will preside over your deliberations and will be your spokesman here in court. [Second,] [n]ow, if on the other hand you find in favor of the defendant in this case on their claim on the policy. If you find that they bona fidely, as I have described to you, took out this insurance policy and they had nothing to do with setting this fire, as I have described it, then you would enter a verdict, “We the jury find for the defendants and award blank dollars compensatory damages,” bear in mind they do not seek punitive damages, “this the blank day of August, nineteen eighty.” And a place for the foreperson. The foreperson will sign the verdict that you may enter and will date it and will fill in the amount of damages. Now, I remember when I was a student of law, considered myself one, I had a little trouble at times remembering which was the plaintiff and which was the defendant. You will notice that up here at the top of the name of the case is set out and it says the Auto Insurance — Auto Owners Insurance Company, plaintiff, and John David Bass and Gloria Jean Bass, defendants, so you could always look up there and solve any problem may have there. [Third] the last possible verdict is that you will find that neither the plaintiff nor the defendant proved its right to recover from the other side; the parties will be left as they are. In that event you may enter the verdict, “We the jury find neither for the plaintiff nor for the defendants. This the blank day of August, nineteen eighty.” Considering all of these circumstances we have outlined — the allegations as further developed in the pretrial order, the evidence, oral argument, and the instructions to the jury, there can be no reasonable doubt that the jury intended to assess compensatory and punitive damages against the principal actor John. But it cannot be said with any degree of certainty that the verdict was also intended to reach Gloria, who was not a central actor and was only a secondary target at trial. Plaintiff’s brief devotes a single page to the matter of the defective verdict, and makes only the points that John and Gloria could be held jointly and severally liable as concurrent tort-feasors and that the evidence was sufficient to support a verdict against both of them. Both statements are correct, but neither addresses the point in issue. II. Other points Remarks by Auto Owners’ counsel made to the jury in closing argument, not objected to, were not so improper and prejudicial to require reversal. A comment on defendants’ failure to call a fire expert who had been employed by their first attorney was not error at all. Generally, counsel in a civil trial may comment on the failure of a party to call an available witness whose testimony the party would naturally be expected to produce if favorable to him. United States v. Certain Land in City of Fort Worth, Texas, 414 F.2d 1026, 1028 (5th Cir. 1969). The second comment, that Mr. Bass “has had two prior attorneys and now he is representing himself. You make your own judgment on that,” was inappropriate but certainly not grounds for reversal. The instruction to the jury concerning failure to produce a witness was not incorrect and moreover was not objected to. The court did not abuse its discretion in allowing testimony from a plaintiff witness not listed on the pretrial order. The witness was an expert who substituted for another expert listed in the pretrial order. Defendants were informed of this change a month prior to the scheduled trial date and did not object to the witness’ testimony at trial. There was no error in expert witness Johnson’s testifying to the absence at the scene of the fire of evidence of the existence of personal items claimed to be in the house.. The absence of valuable or sentimental items from a fire scene is circumstantial evidence that the fire was set. Moreover, Johnson’s testimony was relevant to defendants’ counterclaim asking punitive damages for willful refusal to pay a valid claim. The trial court denied a motion to have the jury view the scene of the fire. The fire had occurred 16 months before the trial and 30 to 35 miles from the courthouse. More than 100 photographs taken shortly after the fire were introduced into evidence. Whether to allow the jury to visit the scene was in the discretion of the district court. Johnson v. William C. Ellis & Sons Iron Works, Inc., 604 F.2d 950, 958 (5th Cir. 1979). See also Fed.R.Evid. 403. The judgment is AFFIRMED as against John David Bass, REVERSED as against Gloria Jean Bass. . Arguably the motion to dismiss should have been granted as to the “should have known” allegation, but this issue was not raised on appeal. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
sc_caseorigin	160	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE No. 76-811. Argued October 12, 1977 Decided June 28, 1978 Powell, J., announced the Court’s judgment and filed an opinion expressing his views of the case, in Parts I, III-A, and V-C of which White, J., joined; and in Parts I and V-C of which BreNNAN, Marshall, and BlacemuN, JJ., joined. BreNNAN, White, Marshall, and Blace-MUN, JJ., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 324. White, J., post, p. 379, Marshall, J., post, p. 387, and BlackmuN, J., post, p. 402, filed separate opinions. SteveNS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Burger, C. J., and Stewart and RehNQUist, JJ., joined, post, p. 408. Archibald Cox argued the cause for petitioner. With him on the briefs were Paul J. Mishkin, Jack B. Owens, and Donald L. Reidhaar. Reynold H. Colvin argued the cause and filed briefs for respondent. Solicitor General McCree argued the cause for the United States as amicus curiae. With him on the briefs were Attorney General Bell, Assistant Attorney General Days, Deputy Solicitor General Wallace, Brian K. Landsberg, Jessica Dunsay Silver, Miriam R. Eisenstein, and Vincent F. O’Rourke. Briefs of amici curiae urging reversal were filed by Slade Gorton, Attorney General, and James B. Wilson, Senior Assistant Attorney General, for the State of Washington et al.; by E. Richard Larson, Joel M. Gora, Charles C. Marson, Sanford Jay Rosen, Fred Okrand, Norman Dorsen, Ruth Bader Ginsburg, and Frank Askin for the American Civil Liberties Union et al.; by Edgar S. Cahn, Jean Camper Cahn, and Robert S. Catz for the Antioch School of Law; by William Jack Chow for the Asian American Bar Assn, of the Greater Bay Area; by A. Kenneth Pye, Robert B. McKay, David E. Feller, and Ernest Gellhorn for the Association of American Law Schools; by John Holt Myers for the Association of American Medical Colleges; by Jerome B. Fcdk and Peter Roos for the Bar Assn, of San Francisco et al.; by Ephraim Margolin for the Black Law Students Assn, at the University of California, Berkeley School of Law; by John T. Baker for the Black Law Students Union of Yale University Law School; by Annamay T. Sheppard and Jonathan M. Hyman for the Board of Governors of Rutgers, State University of New Jersey, et al.; by Robert J. Willey for the Cleveland State University Chapter of the Black American Law Students Assn.; by John Mason Harding, Albert J. Rosenthal, Daniel Steiner, Iris Brest, James V. Siena, Louis H. Poliak, and Michael I. Sovem for Columbia University et al.; by Herbert 0. Reid for Howard University; by Harry B. Reese and L. Orin Slagle for the Law School Admission Council; by Albert E. Jenner, Jr., Stephen J. Poliak, Burke Marshall, Norman Redlich, Robert A. Murphy, and William, E. Caldwell for the Lawyers’ Committee for Civil Rights Under Law; by Alice Daniel and James E. Coleman, Jr., for the Legal Services Corp.; by Nathaniel R. Jones, Nathaniel S. Colley, and Stanley Goodman for the National Assn, for the Advancement of Colored People; by Jack Greenberg, James M. Nabrit III, Charles S. Ralston, Eric Schnapper, and David E. Kendall for the NAACP Legal Defense and Educational Fund, Inc.; by Stephen V. Bomse for the National Assn, of Minority Contractors et al.; by Richard B. Sobol, Marian Wright Edelman, Stephen P. Berzon, and Joseph L. Rauh, Jr., for the National Council of Churches of Christ in the United States et al.; by Barbara A. Morris, Joan Bertin Lowy, and Diana H. Greene for the National Employment Law Project, Inc.; by Herbert 0. Reid and J. Clay Smith, Jr., for the National Medical Assn., Inc., et ah; by Robert Hermann for the Puerto Rican Legal Defense and Education Fund et al.; by Robert Allen Sedler, Howard Lesnick, and Arval A. Morris for the Society of American Law Teachers; for the American Medical Student Assn.; and for the Council on Legal Education Opportunity. Briefs of amici curiae urging affirmance were filed by Lawrence A. Polt-rock and Wayne B. Giampietro for the American Federation of Teachers; by Abraham S. Goldstein, Nathan Z. Dershowitz, Arthur J. Gajarsa, Thaddeus L. Kowalski, Anthony J. Fornelli, Howard L. Greenberger, Samuel Rabinove, Themis N. Anastos, Julian E. Kulas, and Alan M. Dershowitz for the American Jewish Committee et al; by McNeill Stokes and Ira J. Smotherman, Jr., for the American Subcontractors Assn.; by Philip B. Kurland, Daniel D. Polsby, Larry M. Lavinsky, Arnold Forster, Dennis Rapps, Anthony J. Fornelli, Leonard Greenwald, and David I. Ashe for the Anti-Defamation League of B’nai B’rith et ah; by Charles G. Bakaly and Lawrence B. Kraus for the Chamber of Commerce of the United States; by Roger A. Clark, Jerome K. Tankel, and Glen R. Murphy for the Fraternal Order of Police et al.; by Judith R. Cohn for the Order Sons of Italy in America; by Ronald A. Zumbrun, John H. Findley, and William F. Harvey for the Pacific Legal Foundation; by Benjamin Vinar and David I. Caplan for the Queens Jewish Community Council et al.; and by Jennings P. Felix for Young Americans for Freedom. Briefs of amici curiae were filed by Matthew W. Finkin for the American Assn, of University Professors; by John W. Finley, Jr., Michael Blinick, John Cannon, Leonard J. Theberge, and Edward H. Dowd for the Committee on Academic Nondiscrimination and Integrity et al.; by Kenneth C. McGuiness, Robert E. Williams, Douglas S. McDowell, and Ronald M. Green for the Equal Employment Advisory Council; by Charles E. Wilson for the Fair Employment Practice Comm’n of California; by Mario G. Obledo for Jerome A. Laekner, Director of the Department of Health of California, et ah; by Vilma S. Martinez, Peter D. Roos, and Ralph Santiago Abascal for the Mexican American Legal Defense and Educational Fund et al.; by Eva S. Goodwin for the National Assn, of Affirmative Action Officers; by Lennox S. Hinds for the National Conference of Black Lawyers; by David Ginsburg for the National Fund for Minority Engineering Students; by A. John Wabaunsee, Walter R. Echo-Hawk, and Thomas W. Fredericks for the Native American Law Students of the University of California at Davis et al; by Joseph A. Broderick, Calvin Brown, LeMarquis DeJarmon, James E. Ferguson II, Harry E. Groves, John H. Harmon, William A. Marsh, Jr., and James W. Smith for the North Carolina Assn, of Black Lawyers; by Leonard F. Walentyno-wicz for the Polish American Congress et al.; by Daniel M. Luevano and John E. McDermott for the UCLA Black Law Students Assn, et al.; by Henry A. Waxman pro se; by Leo Branton, Jr., Ann Fagan Ginger, Sam Rosenwein, and Laurence R. Sperber for Price M. Cobbs, M. D., et al.; by John S. Nolan for Ralph J. Galliano; and by Daniel T. Spitler for Timothy J. Hoy. Mr. Justice Powell announced the judgment of the Court. This case presents a challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis, which is designed to assure the admission of a specified number of students from certain minority groups. The Superior Court of California sustained respondent’s challenge, holding that petitioner’s program violated the California Constitution, Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 200Ód et seq., and the Equal Protection Clause of the Fourteenth Amendment. The court enjoined petitioner from considering respondent’s race or the race of any other applicant in making admissions decisions. It refused, however, to order respondent’s admission to the Medical School, holding that he had not carried his burden of proving that he would have been admitted but for the constitutional and statutory violations. The Supreme Court of California affirmed those portions of the trial court’s judgment declaring the special admissions program unlawful and enjoining petitioner from considering the race of any applicant. It modified that portion of the judgment denying respondent’s requested injunction and directed the trial court to order his admission. For the reasons stated in the following opinion, I believe that so much of the judgment of the California court as holds petitioner’s special admissions program unlawful and directs that respondent be admitted to the Medical School must be affirmed. For the reasons expressed in a separate opinion, my Brothers The Chief Justice, Mr. Justice Stewart, Mr. Justice Rehnquist, and Mr. Justice Stevens concur in this judgment. I also conclude for the reasons stated in the following opinion that the portion of the court’s judgment enjoining petitioner from according any consideration to race in its admissions process must be reversed. For reasons expressed in separate opinions, my Brothers Mr. Justice Brennan, Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Blackmun concur in this judgment. Affirmed in part and reversed in part. I The Medical School of the University of California at Davis opened in 1968 with an entering class of 50 students. In 1971, the size of the entering class was increased to 100 students, a level at which it remains. No admissions program for disadvantaged or minority students existed when the school opened, and the first class contained three Asians but no blacks, no Mexican-Americans, and no American Indians. Over the next two years, the faculty devised a special admissions program to increase the representation of “disadvantaged” students in each Medical School class. The special program consisted of a separate admissions system operating in coordination with the regular admissions process. Under the regular admissions procedure, a candidate could submit his application to the Medical School beginning in July of the year preceding the academic year for which admission was sought. Record 149. Because of the large number of applications, the admissions committee screened each one to select candidates for further consideration. Candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. Id., at 63. About one out of six applicants was invited for a personal interview. Ibid. Following the interviews, each candidate was rated on a scale of 1 to 100 by his interviewers and four other members of the admissions committee. The rating embraced the interviewers’ summaries, the candidate’s overall grade point average, grade point average in science courses, scores on the Medical College Admissions Test (MCAT), letters of recommendation, extracurricular activities, and other biographical data. Id., at 62. The ratings were added together to arrive at each candidate’s “benchmark” score. Since five committee members rated each candidate in 1973, a perfect score was 500; in 1974, six members rated each candidate, so that a perfect score was 600. The full committee then reviewed the file and scores of each applicant and made offers of admission on a “rolling” basis. The chairman was responsible for placing names on the waiting list. They were not placed in strict numerical order; instead, the chairman had discretion to include persons with “special skills.” Id., at 63-64. The special admissions program operated with a separate committee, a majority of whom were members of minority groups. Id., at 163. On the 1973 application form, candidates were asked to indicate whether they wished to be considered as “economically and/or educationally disadvantaged” applicants; on the 1974 form the question was whether they wished to be considered as members of a “minority group,” which the Medical School apparently viewed as “Blacks,” “Chícanos,” “Asians,” and “American Indians.” Id., at 65-66, 146, 197, 203-205, 216-218. If these questions were answered affirmatively, the application was forwarded to the special admissions committee. No formal definition of “disadvantaged” was ever produced, id., at 163-164, but the chairman of the special committee screened each application to see whether it reflected economic or educational deprivation. Having passed this initial hurdle, the applications then were rated by the special committee in a fashion similar to that used by the general admissions committee, except that special candidates did not have to meet the 2.5 grade point average cutoff applied to regular applicants. About one-fifth of the total number of special applicants were invited for interviews in 1973 and 1974. Following each interview, the special committee assigned each special applicant a benchmark score. The special committee then presented its top choices to the general admissions committee. The latter did not rate or compare the special candidates against the general applicants, id., at 388, but could reject recommended special candidates for failure to meet course requirements or other specific deficiencies. Id., at 171-172. The special committee continued to recommend special applicants until a number prescribed by faculty vote were admitted. While the overall class size was still 50, the prescribed number was 8; in 1973 and 1974, when the class size had doubled to 100, the prescribed number of special admissions also doubled, to 16. Id., at 164,166. From the year of the increase in class size — 1971 — through 1974, the special program resulted in the admission of 21 black students, 30 Mexican-Americans, and 12 Asians, for a total of 63 minority students. Over the same period, the regular admissions program produced 1 black, 6 Mexican-Americans, and 37 Asians, for a total of 44 minority students. Although disadvantaged whites applied to the special program in large numbers, see n. 5, supra, none received an offer of admission through that process. Indeed, in 1974, at least, the special committee explicitly considered only “disadvantaged” special applicants who were members of one of the designated minority groups. Record 171. Allan Bakke is a white male who applied to the Davis Medical School in both 1973 and 1974. In both years Bakke’s application was considered under the general admissions program, and he received an interview. His 1973 interview was with Dr. Theodore C. West, who considered Bakke “a very desirable applicant to [the] medical school.” Id., at 225. Despite a strong benchmark score of 468 out of 500, Bakke was rejected. His application had come late in the year, and no applicants in the general admissions process with scores below 470 were accepted after Bakke’s application was completed. Id., at 69. There were four special admissions slots unfilled at that time, however, for which Bakke was not considered. Id., at 70. After his 1973 rejection, Bakke wrote to Dr. George H. Lowrey, Associate Dean and Chairman of the Admissions Committee, protesting that the special admissions program operated as a racial and ethnic quota. Id., at 259. Bakke’s 1974 application was completed early in the year. Id., at 70. His student interviewer gave him an overall rating of 94, finding him “friendly, well tempered, conscientious and delightful to speak with.” Id., at 229. His faculty interviewer was, by coincidence, the same Dr. Lowrey to whom he had written in protest of the special admissions program. Dr. Lowrey found Bakke “rather limited in his approach” to the problems of the medical profession and found disturbing Bakke’s “very definite opinions which were based more on his personal viewpoints than upon a study of the total problem.” Id., at 226. Dr. Lowrey gave Bakke the lowest of his six ratings, an 86; his total was 549 out of 600. Id., at 230. Again, Bakke’s application was rejected. In neither year did the chairman of the admissions committee, Dr. Lowrey, exercise his discretion to place Bakke on the waiting list. Id., at 64. In both years, applicants were admitted under the special program with grade point averages, MCAT scores, and benchmark scores significantly lower than Bakke’s. After the second rejection, Bakke filed the instant suit in the Superior Court of California, He sought mandatory, injunctive, and declaratory relief compelling his admission to the Medical School. He alleged that the Medical School’s special admissions program operated to exclude him from the school on the basis of his race, in violation of his rights under the Equal Protection Clause of the Fourteenth Amendment, Art. I, § 21, of the California Constitution, and § 601 of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d. The University cross-complained for a declaration that its special admissions program was lawful. The trial court found that the special program operated as a racial quota, because minority applicants in the special program were rated only against one another, Record 388, and 16 places in the class of 100 were reserved for them. Id., at 295-296. Declaring that the University could not take race into account in making admissions decisions, the trial court held the challenged program violative of the Federal Constitution, the State Constitution, and Title VI. The court refused to order Bakke’s admission, however, holding that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program. Bakke appealed from the portion of the trial court judgment denying him admission, and the University appealed from the decision that its special admissions program was unlawful and the order enjoining it from considering race in the processing of applications. The Supreme Court of California transferred the case directly from the trial court, “because of the importance of the issues involved.” 18 Cal. 3d 34, 39, 553 P. 2d 1152, 1156 (1976). The California court accepted the findings of the trial court with respect to the University's program. Because the special admissions program involved a .racial classification, the Supreme Court held itself bound to apply strict scrutiny. Id., at 49, 553 P. 2d, at 1162-1163. It then turned to the goals the University presented as justifying the special program. Although the court agreed that the goals of integrating the medical profession and increasing the number of physicians willing to serve members of minority groups were compelling state interests, id., at 53, 553 P. 2d, at 1165, it concluded that the special admissions program was not the least intrusive means of achieving those goals. Without passing on the state constitutional or the federal statutory grounds cited in the trial court’s judgment, the California court held that the Equal Protection Clause of the Fourteenth Amendment required that “no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race.” Id., at 55, 553 P. 2d, at 1166. Turning to Bakke’s appeal, the court ruled that since Bakke had established that the University had discriminated against him on the basis of his race, the burden of proof shifted to the University to demonstrate that he would not have been admitted even in the absence of the special admissions program. Id., at 63-64, 553 P. 2d,, at 1172. The court analogized Bakke’s situation to that of a. plaintiff under Title VII of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000e-17 (1970 ed., Supp. V), see, e. g., Franks v. Bowman Transportation Co., 424 U. S. 747, 772 (1976).. 18 Cal. 3d, at 63-64, 553 P. 2d, at 1172. On this basis, the court initially ordered a remand for the purpose of determining whether, under the newly allocated burden of proof, Bakke would have been admitted to either the 1973 or the 1974 entering class in the absence of the special admissions program. App. A to Application for Stay 48. In its petition for rehearing below, however, the University conceded its inability to carry that burden. App. B to Application for Stay A19-A20. The California court thereupon amended its opinion to direct that the trial court enter judgment ordering Bakke’s admission to the Medical School. 18 Cal. 3d, at 64, 553 P. 2d, at 1172. That order was stayed pending review in this Court. 429 U. S. 953 (1976). We granted certiorari to consider the important constitutional issue. 429 U. S. 1090 Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. 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songer_altdisp	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 an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) 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". Minerva BRADLEY, I. A. Jackson, Jr., Rosa Lee Quarles, John Edward Johnson, Elihu C. Myers and Elizabeth S. Myers, Appellants, v. The SCHOOL BOARD of the CITY OF RICHMOND, VIRGINIA, H. I. Willet, Division Superintendent of Schools of the City of Richmond, Virginia, and E. J. Oglesby, Alfred L. Wingo and E. T. Justis, individually and constituting the Pupil Placement Board of the Commonwealth of Virginia, Appellees. No. 8757. United States Court of Appeals Fourth Circuit. Argued Jan. 9, 1963. Decided May 10, 1963. Albert V. Bryan, Circuit Judge, dissented in part. Henry L. Marsh, III, Richmond, Va. (S. W. Tucker, Richmond, Va., on brief) for appellants. Henry T. Wickham, Sp. Counsel, City of Richmond (J. Elliott Drinard, City Atty., Richmond, Va., and Tucker, Mays, Moore & Reed, Richmond, Va., on brief) for appellees, The School Board of the City of Richmond, Virginia, and H. I. Willet, Division Superintendent of Schools. Before BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges. BOREMAN, Circuit Judge. This is a school case involving alleged racially discriminatory practices and the maintenance of public schools on a racially segregated basis in the City of Richmond, Virginia. In September 1961 eleven Negro pupils, their parents and guardians instituted this action to require the defendants to transfer the pupils from Negro public schools to white public schools. The plaintiffs also pray, on behalf of all persons similarly situated, that the defendants be enjoined from operating racially segregated schools and be required to submit to the District Court a plan of desegregation. The District Court ordered that the individual infant plaintiffs be transferred to the schools for which they had applied. This appeal is based upon the refusal of the court to grant further injunctive relief. Defendant, Virginia Pupil Placement Board, answered the complaint, admitting that plaintiffs had complied with its regulations pertaining to applications for transfer but denying discrimination and other allegations of the complaint. The defendants, School Board of the City of Richmond and the Richmond Superintendent of Schools, answered and moved to dismiss on the ground that sole responsibility for the placement of pupils rested with the Virginia Pupil Placement Board pursuant to the Pupil Placement Act of Virginia, Sections 22-232.1 through 232.17, Code of Virginia, 1950, as amended. The defendants interpreted the bill of complaint as attacking the constitutionality of the Pupil Placement Act and the' motions to dismiss were grounded also on the theory that constitutionality should first be determined by the Supreme Court' of Appeals of Virginia or the case should be heard by a District Court of three judges. The court below correctly denied the motions to dismiss after determining that the constitutionality of the Act had not been challenged by plaintiffs. The record discloses that the City of Richmond is divided into a number of geographically defined attendance areas for both white and Negro schools. These areas were established by the School Board prior to 1954 and have not been materially changed since that time. It is admitted that several attendance areas for white and Negro schools overlap. The State Pupil Placement Board enrolls and transfers all pupils and neither the Richmond School Board nor the city Superintendent of Schools makes recommendations to the Pupil Placement Board. During the 1961-62 school term, 37 Negro pupils were assigned to “white” schools. For the 1962-63 school term, 90 ¿dditional Negro pupils had been so assigned. At the start of the 1962-63 school term, all of the “white” high schools had Negro pupils in attendance. Negro pupils also attend several of the “white” junior high schools and elementary schools. Certain additional facts are clearly established by the record. -The City School Board maintains five high schools, three for whites and two for Negroes; five junior high schools for whites and four for Negroes; eighteen elementary schools for whites and twenty-two for Negroes. As of April 30, 1962, there were 40,263 pupils in' Richmond public schools, 23,177 Negroes, 17,002 whites and 84 non-whites of a race other than Negro but considered white for the purpose of assignment in the Richmond public school system. Only 37 Negroes were then attending schools which white children attended, 30 of those being in the “white” Chandler Junior High School. Three of the remaining seven were in attendance at the “white” John Marshall High School, one attended the “white” Westhampton Junior High School and three handicapped children attended the Richmond Cerebral Palsy Center. With the possible exception of the three last mentioned, these children had sought transfers from Negro schools and all but one were able to satisfy the residential and academic criteria which the Pupil Placement Board applies in case of transfers but not in case of initial enrollment. The remaining child had been admitted by court order in earlier litigation. The 1961-62 Directory of the Richmond, Virginia, Public Schools shows “White Schools” in one division and “Negro Schools” in the other. The “White Schools” are staffed entirely with faculties and officials of the Caucasian race. The schools listed as “Negro Schools” are staffed entirely with faculties and officials of the Negro race. Thus it is clear, as found by the District Court, that Richmond has dual school attendance areas; that the City is divided into areas for white schools and is again divided into areas for Negro schools; that in many instances the area for the white school and for the Negro school is the same and the areas overlap. Initial pupil enrollments are made pursuant to the dual attendance lines. Once enrolled, the pupils are routinely reassigned to the same school until graduation from that school. Upon graduation, the pupils are assigned in the manner found by the District Court to be as follows: “* * * [A] ssignments of students based on promotion from an elementary school to a junior high school and from a junior high school to high school are routinely made by the Pupil Placement Board. These assignments generally follow a pattern, aptly described as a system of ‘feeder schools’, that existed prior to 1954. Thus, a student from a white elementary school is routinely promoted to a white junior high school and in due course to a white high school. A Negro student is routinely promoted from a Negro elementary school to a Negro junior high school and finally a Negro high school. In order to change the normal course of assignment based on promotion all students must apply to the Pupil Placement Board. The majority of the plaintiffs in the present case are such applicants.” As of April 30, 1962, a rather serious problem of overcrowding existed in the Richmond Negro public schools. Of the 28 Negro schools 22 were overcrowded beyond normal capacity by 1775 pupils and the combined enrollments of 23 of the 26 white schools were 2445 less than the normal capacity of those schools. For the current 1962-63 school term, the applications for transfers from Negro to white schools of only 127 Negro pupils had been granted. Four of the infant plaintiffs, who had completed elementary school, sought admission to the white Chandler Junior High School. After comparing test scores of these pupils with test scores of other pupils, the Pupil Placement Board denied the applications on the ground of lack of academic qualifications. These plaintiffs contended that pupils from white elementary schools in the same attendance area are routinely placed in Chandler Junior High and their scholastic attainments or qualifications are not scrutinized by the Pupil Placement Board. The District Court concluded that academic criteria were applied to Negro pupils seeking transfer based on promotion, which criteria were not applied to the white pupils promoted from elementary schools to junior high schools. This, said the court, is discriminatory and is a valid criticism of the procedure inherent in the system of “feeder schools”. The court further stated: “Proper scholastic tests may be used to determine the placement of students. But when the tests are applied only to Negroes seeking admission to particular schools and not to white students routinely assigned to the same schools, the use of the tests can not be sustained. Jones v. School Board of the City of Alexandria, 278 F.2d 72 (4th Cir. I960).” Another of the Negro plaintiffs, who was promoted from a Negro junior high school, sought admission to the “white” John Marshall High School. His application had been denied because he lived thirteen blocks from the John Marshall High School and only five blocks from a Negro high school. However, it was pointed out in the court below that this plaintiff lives in the attendance area of the John Marshall High School and, had he been a white student, he would have been routinely assigned there without considering the distance of his residence from that school or from another high school. The District Court said: “ * * Residence may be a proper basis for assignment of pupils, but it is an invalid criteria when linked to a system of ‘feeder schools’. Dodson v. School Board of the City of Charlottesville, 289 F.2d 439 (4th Cir. 1961).” The remaining five plaintiffs sought transfers from the Graves Junior High School (Negro) to the “white” Chandler Junior High School. They were denied transfer by the Pupil Placement Board because of lack of academic qualifications. The evidence showed that the same standards for determining transfers, upon application, from one junior high school to another junior high school were applied by the Board indiscriminately to both white and Negro pupils. The District Court stated: « * * * Were this the only factor in this phase of the case, the issue would involve only judicial review of the decision of an administrative board. However, the situation of these plaintiffs must be considered in the context of the system of ‘feeder schools’, which routinely placed them in the Graves Junior High School while white students routinely were placed in Chandler Junior High School. The application of scholarship qualifications under these circumstances is discriminatory. Green v. School Board of the City of Roanoke [304] F.2d [118] (4th Cir., May 22, 1962).” With respect to a determination of the rights of all of the infant Negro plaintiffs, the District Court held: “The foregoing facts and conclusions of law require the admission of the plaintiffs to the schools for which they made application.” An appropriate order was entered enjoining and restraining the defendants from denying the infant plaintiffs, therein named, admission to the schools for which they had made application. The defendants have not appealed from this order. It follows that each infant plaintiff has been granted the relief which he or she individually sought. But the District Court, although expressing its disapproval of the “feeder school system” as now operating in the City of Richmond, denied further injunctive relief. The case was ordered retained on the docket for such further relief “as may be appropriate”. The conclusion of the District Court that a “reasonable start toward a nondiseriminatory school system” had been made appears to have been based primarily upon consideration of four factors discussed in its opinion as follows: “Rigid adherence to placement of students by attendance areas has been modified in four respects. First, the Chairman of the Pupil Placement Board testified that any Negro child applying for enrollment in the first grade of a white public school in his attendance area is assigned to that school. Second, the Superintendent of Schools testified that George Wythe High School and John Marshall High School had been constructed to accommodate all high school students in their respective attendance areas. Counsel stated in argument that six Negro students had applied for admission to George Wythe High School for 1962 and all had been accepted. Third, a Negro student presently attending a white school, upon promotion to a higher school, is routinely assigned to a white school. Fourth, some Negro-students have been assigned to schools in white attendance areas.” In the context of this case the principal questions to be determined may be stated as follows: (1) Are these four basic factors cited by the District Court sufficient to evidence a reasonable start toward maintaining a non-discriminatory school system and consistent with the true concept of equal constitutional protection of the races; and (2) should the court have granted further injunctive relief? We think question (1) must be answered in the negative and question (2) in the affirmative in view of the discriminatory attitude displayed by the Pupil Placement Board toward the transfers sought by the infant plaintiffs in the instant case and which transfers, denied as the result of discriminatory application of residential and academic criteria, were effected only through this protracted litigation. It is notable that there is no assertion here, as in some of the other school cases, of a defense based upon a claim that a reasonable start has been made toward the elimination of racially discriminatory practices coupled with a suggestion that additional time, consistent with good faith compliance at the earliest practicable date, is necessary in the public interest. Instead, the answer of the City school authorities denied that anything done or omitted by them had given rise to the present litigation. The answer of the Pupil Placement Board admitted that the plaintiffs had complied with its administrative procedures but denied and demanded strict proof of racial discrimination. One of the interrogatories served by the plaintiffs was: “What obstacles, if any, are there which will prevent the racially non-discriminatory assignment of students to public schools in the City of Richmond at the commencement of the 1962-1963 school session?” The local school authorities side-stepped the question by claiming to be unable to answer because all power to assign students to schools had been vested by law in the Pupil Placement Board. That Board replied to the interrogatory as follows: “ * * * [T]hat to the extent that such question implies discrimination, such implication is denied and that such question lacks sufficient specificity to evoke an intelligent answer which does not involve broad conclusions or have argumentative deductions. Aside from that, and under Brown v. Board of Education, these defendants know of no reason ivhy students should not be assigned to public schools without discrimination on the ground of race, color, or creed.” (Emphasis added.) The Superintendent of Schools testified that the City School Board had not attempted to meet the problem of overcrowded schools by requesting that Negro-pupils in overcrowded schools in a given area be assigned to schools with white pupils. He stated that some new schools and additions to existing schools had been; provided. The record discloses that the-earlier litigation, Warden v. The School Board of the City of Richmond, referred to in our footnote 3, was instituted on-September 2, 1958. At a special meeting held on September 15, 1958 (approximately two weeks after the beginning of the school term), the School Board voted to request the Pupil Placement Board to transfer the pupils then attending the Nathaniel Bacon School (white) to the East End Junior High School (white), and that a sufficient number of pupils be transferred from the George Mason (Negro) and Chimborazo (Negro) schools to-the Nathaniel Bacon building to utilize its capacity, thus converting Nathaniel Bacon to a Negro school. The attitude of the City school authorities, as disclosed by the Superintendent of Schools in his testimony, is and has. been “that the state law took out of the hands of the School Board and the Superintendent of Schools any decision relating to the integration of schools [and that} * * * it has been a feeling of both the School Board and the Administration that any conflict that might exist between the state and federal law should be . decided by the Courts, not by the School Board and the Administration.” The following is taken from the testimony of the Chairman of the Pupil Placement Board: “Q. Well, what do you do where you have overlapping school zones and school areas? “A. You have got that, of course* in Richmond. “Q. Yes. “A. Normally, I would say fully 99 per cent of the Negro parents who are entering a child in First Grade prefer to have that child in the Negro school. Judging by the small number of applications we get, that must be true. Now, we do not think that this Board was appointed for the purpose or that the law required the attempt on our part to try to integrate every child possible. What we thought we were to do was to be completely fair in considering the requests of Negroes, we will say, to go into White schools, but certainly not trying to put those in that didn’t want to go in. “Now, when a Negro parent asks for admission of his child in the First Grade of a White school, very clearly he is asking for desegregation or for integration, or whatever you want to call it, and he gets it. And it is true that in general there will be two schools that that child could attend in his area, one White and one Negro, and we assume that the Negro wants to go to the Negro school unless he says otherwise, but if he says otherwise, he gets the other school.” (Emphasis supplied.) It is true that the authority for the enrollment and placement of pupils in the State of Virginia has been lodged in the Pupil Placement Board unless a particular locality elects to assume sole responsibility for the assignment of its pupils. The School Board of the City of Richmond has assumed no responsibility whatever in this connection. It does not even make recommendations to the Pupil Placement Board as to enrollments, assignments or transfers of pupils. It here defends charges against it of racial discrimination in the operation of the City’s schools on the ground that the sole responsibility is that of the State Board. At the same time the system of dual attendance areas which has operated over the years to maintain public schools on a racially segregated basis has been permitted to continue. Though many of the Negro schools are overcrowded and white schools are not filled to normal capacity, the only effort to alleviate this condition has been to provide new buildings or additions to existing buildings, a move obviously designed to perpetuate what has always been a segregated school system. It is clear that the pupil assignments are routinely made by the Pupil Placement Board. The Chairman of that Board says that now initial enrollments are on a voluntary basis and a Negro child may be enrolled in a white school upon request. But in the absence of a request, the long established procedure of enrollment of Negro children in Negro schools and white children in white schools persists. Then the “feeder” system begins to operate and the only means of escape is by following the prescribed administrative procedure of filing requests or applications for transfer. The difficulties to be encountered in pursuing this course are graphically demonstrated by the experiences of the infant plaintiffs in this litigation. They were able to escape from the “feeder” system only after the District Court made possible their release by ordering transfers. A Negro child, having once been caught in the “feeder” system and desiring a desegregated education, must extricate himself, if he can, by meeting the transfer criteria. As this court said in Green v. School Board of City of Roanoke, Virginia, 304 F.2d 118, 123 (4th Cir. 1962): “ * * * These are hurdles to which a white child, living in the same area as the Negro and having the same scholastic aptitude, would not be subjected, for he would have been initially assigned to the school to which the Negro seeks admission.” It was pointed out in Jones v. School Board of City of Alexandria, Virginia, 278 F.2d 72, 77 (4th Cir. 1960), that, by reason of the existing segregation pattern, it will be Negro children, primarily, who seek transfers. The truth of this statement is evidenced by the fact that in Richmond only 127 Negro children out of a total of more than 23,000 are now attending previously all-white schools. This court further said in Jones, supra: “Obviously the maintenance of a dual system of attendance areas based on race offends the constitutional rights of the plaintiffs and others similarly situated * * * ” 278 F.2d 72, 76. In recent months we have had occasion to consider the legality of other “feeder” systems found in operation in the public schools of Roanoke County, Virginia, and in the City of Roanoke, Virginia. See Marsh v. County School Board of Roanoke County, Va., 305 F.2d 94 (4th Cir. 1962), and Green v. School Board of City of Roanoke, Virginia, 304 F.2d 118 (4th Cir. 1962). In those cases, in opinions prepared by Chief Judge Sobeloff, the unconstitutional aspects of the systems there in operation were discussed in the light of the -decisions of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), and in the light of numerous prior decisions of this and other courts. We find it unnecessary to again cite or review the pertinent decisions applicable to the maintenance of racially segregated school systems. In the Marsh and Green cases we reached the conclusion that injunctive relief, not only for the individual plaintiffs but for those who might find themselves confronted with the same problems, was justified. A start has, indeed, been made to end total segregation of the races in the Richmond schools. The first step has been taken, one which, no doubt, was distasteful to those who are traditionally and unalterably opposed to an integrated school system. But, upon this record and from the statements of the school officials, we find nothing to indicate a desire or intention to use the enrollment or assignment system as a vehicle to desegregate the schools or to effect a material departure from present practices, the discriminatory character of which required the District Court to order relief to the infant plaintiffs before it. In the present status in which the case was left by the District Court, the school authorities are yet free to ignore the rights of other applicants and thus to require the parents of new applicants to protest discriminatory denials of transfers, to require an infant applicant with his or her parents to attend a hearing on the protest which is not likely to be held earlier than August of 1963, and then to require the applicants to intervene in the pending litigation (possibly to be met with defensive tactics calculated to result in delay), the applicants fervently hoping to obtain relief from the court not long after the beginning of the 1963-64 school session if such relief is to be meaningful. The School Board of the City of Richmond has abdicated in favor of the Pupil Placement Board leaving the latter with a school system which, in normal operation, has demonstrated its potential as an effective instrumentality for creating and maintaining racial segregation. Nearly nine years have elapsed since the decisions in the Brown v. Board of Education cases and since the Supreme Court held racial discrimination in the schools to be unconstitutional. The Richmond school authorities could not possibly have been unaware of the results of litigation involving the school systems of other cities in Virginia, notably Norfolk, Alexandria, Charlottesville and Roanoke. Despite the knowledge which these authorities must have had as to what was happening in other nearby communities, the dual attendance areas and “feeder” system have undergone no material change. Assignments on a racial basis are neither authorized nor contemplated by Virginia’s Pupil Placement Act. We are told that initial assignments are now made on a purely voluntary basis but the Placement Board assumes that a Negro child prefers to attend a school with children of his own race and he is so assigned unless otherwise requested. Richmond’s administration of her schools has been obviously compulsive and it is evident that there has been little, if any, freedom of choice. “Though a voluntary separation of the races in schools is uncondemned by any provision of the Constitution, its legality is dependent upon the volition of each of the pupils. If a reasonable attempt to exercise a pupil’s individual volition is thwarted by official coercion or compulsion, the organization of the schools, to that extent, comes into plain conflict with the constitutional requirement. A voluntary system is no longer voluntary when it becomes compulsive.” See Jeffers v. Whitley, 309 F.2d 621, 627 (4th Cir. 1962). Notwithstanding the fact that the Pupil Placement Board assigns pupils to the various Richmond schools without .recommendation of the local officials, we do not believe that the City School Board can disavow all responsibility for the maintenance of the discriminatory system which has apparently undergone no basic change since its adoption. Assuredly it has the power to eliminate the dual attendance areas and the “feeder” system which the District Court found to be primarily responsible for the discriminatory practices disclosed by the evidence. It would be foolish in the extreme to say that neither the City School Board nor the Pupil Placement Board has the duty to recognize and protect the constitutional rights of pupils in the Richmond schools. That there must be a responsibility devolving upon some agency for proper administration is unquestioned. We are of the opinion that it is primarily the duty of the School Board to eliminate the offending system. In these circumstances, not only are the individual infant plaintiffs entitled to relief which has been ordered but the plaintiffs are entitled, on behalf of others of the class they represent and who are similarly situated, to an injunction against the continuation of the discriminatory system and practices which-have-been found to exist. As we clearly stated in Jeffers v. Whitley, 309 F.2d 621, 629 (4th Cir. 1962), the appellants are not entitled to an order requiring the defendants to effect a general intermixture of the races in the schools but they are entitled to an order enjoining the defendants from refusing admission to any school of any pupil because of the pupil’s race. The order should prohibit the defendants’ conditioning the grant of a requested transfer upon the applicant’s submission to futile, burdensome or discriminatory administrative procedures. If there is to be an absolute abandonment of the dual attendance area and “feeder”' system, if initial assignments are to be on a nondiscriminatory and voluntary basis, and if there is to be a right of free-choice at reasonable intervals thereafter* consistent with proper administrative procedures as may be determined by the defendants with the approval of the District Court, the pupils, their parents and the public generally should be so informed. If, upon remand, the defendants desire to submit to the District Court a more definite plan, providing for immediate steps looking to the termination of the discriminatory system and practices “with all deliberate speed,” they should not only be permitted but encouraged to do so. The District Court should retain jurisdiction of this case for further proceedings and the entry of such further orders as are not inconsistent with this opinion. Reversed in part and remanded. . Of eleven original pupil plaintiffs, one was assigned by the Pupil Placement Board to an integrated Junior High School to which he had made application before the hearing in the District Court. His case became moot. . Raised below (but not involved in this appeal) was the issue as to the joinder of the Richmond School Board and Superintendent of Schools as parties defendant. Correctly, we think, the District Court held: “ * * * The State Pupil Placement Board has authority over the placement of pupils, and the local officials refrain from making recommendations to the Board, but approximately 98 per cent of the placements are made routinely as a result of the regulations of the School Board pertaining to attendance areas. The evidence shows that the State Pupil Placement Board has no inclination to vary these attendance areas, although undoubtedly it has authority to do so. In view of this situation, the School Board and the Superintendent of Schools are proper parties.” . On September 2, 1958, a suit styled Lorna Renee Warden et al. v. The School Board of the City of Richmond, Virginia, et al. was instituted in the District Court, praying, inter alia, that a permanent injunction be entered restraining the Richmond School Board and its division Superintendent of Schools from any and all actions that regulate or affect, on the basis of race or color, the admission, enrollment or education of the infant plaintiffs, or any other Negro child similarly situated, to and in any public school operated by the defendants. That suit was decided on July 5, 1961. The District Court ordered that the then one remaining Negro plaintiff be transferred from the Negro school located five miles from her home and admitted to the white school in her neighborhood. However, the court denied class relief, stating: “There is no question as to the right of the infant plaintiff to be admitted to the schools of the City of Richmond without discrimination on the ground of race. She is admitted, however, as an individual,; not as a class or group; and it is as an individual that her rights under the Constitution are asserted.” The court refused to grant a permanent, injunction and dismissed the case from the docket. . The ease to which the District Court referred is styled Green v. School Board of City of Roanoke, Virginia, and is now reported in 304 F.2d 118. . In its written opinion the District Court stated as follows: “The plaintiffs prayed that the defendants be enjoined from continuing discrimination in the city schools and that the School Board be required to submit a desegregation plan. The Court has weighed all of the factors presented by the evidence in this case and finds that the defendants have taken measures to eliminate racially discriminatory enrollments in the first grade. Apparently they are eliminating discriminatory enrollments in George Wythe High School [white] and they are routinely assigning Negro students in white junior high schools to white high schools. “While the School Board has not presented a formal plan of desegregation, the Court finds that the defendants have made a reasonable start toward a nondiscriminatory school system resulting in the attendance of 127 Negro students in white schools for the 1982-1963 school term. In view of the steps that have been taken in this direction, the Court concludes that the defendants should be allowed discretion to fashion within a reasonable time the changes necessary to eliminate the remaining objectionable features of the system of ‘feeder schools’. “In Brown v. Board of Education, 349 U.S. 294, 300 [75 S.Ct. 753, 99 L.Ed. 1083] (1955), the Supreme Court stated ‘Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.’ The Court is of the opinion that the relief decreed in this case is sufficient at this time in view of the evidence presented. The refusal of broad injunctive relief now is not to be construed as approval to continue the ‘feeder school system’ as it is now operated. See Hill v. School Board of the City of Norfolk, Virginia, 282 F.2d 473 (4th Cir. 1960) ; Dodson v. School Board of the City of Charlottesville, 289 F.2d 439 (4th Cir. 1961). “This case will be retained on the docket for such further relief as may be appropriate.” . Va.Code Ann. §§ 22-232.1-232.17 (Supp. 1960). . Va.Code Ann. §§ 22-232.18-232.31 (Supp. 1960). . Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). Question: Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appstate	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. ANGILLY v. UNITED STATES et al. No. 54; Docket 22445. United States Court of Appeals Second Circuit. Argued Oct. 17, 1952. Decided Nov. 7, 1952. ,, , „ _r , Matthew E McCarthy New York City, for William C. Angilly, plaintiff-appellant. Myles J. Lane, U. S. Atty., New York City, John M. Foley, Asst. U. S. Atty., New York City, of counsel, for United States and Harry M. Durning, as Collector of Customs, Port of New York, defendants-appellees. Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. On October 28, 1949, William C. Angilly, the plaintiff-appellant, a custom inspector stationed at LaGuardia Field, New York City, was summoned to a hearing at the Custom House, New York City, and orally charged with illegally withholding $152.44 in customs duties which he had collected and with withholding thirty-eight collector’s copies of informal customs entry forms pertaining thereto, covering a period from May 10, 1948 to September 20, 1948. ». ,, , - ,, , • ,.££ . , At the hearing, the plaintiff was required . ,, i , ,, to answer the charges and the answers were recorded. On November 16, 1949, the Collector of Customs of New York served the plaintiff with written charges setting forth the withholding of the customs duties and entries. On November 21, 1949, the plaintiff replied to the charges in writing, stating that the customs duties and entries were missing because of the prevailing loose practice of the government in the handling of such funds and entries at La Guardia Field. On November 29, 1949, the Plaintiff was summoned to another hearing but was n(? Permitted to have counsel, or t0 have otber customs inspectors as wit-nesses m order t0 establlsb ^alleged prevailing loose practice. On December 30, ... , , , 1949, plaintiff was removed by the Secretary of the Treasury from federal employment for withholding the funds and entrieS) and ^ sum of $1S2-44 was de, ducted frQm his accumulated salary. Thereafter he brought this action in the district court seeking: (1) A judgment in the sum of $9,184 for loss of earnings; (2) A mandatory injunction directing Durning, the Collector of Customs, to remove all charges and accusations on file in the defendant>s office affecting the plaintiff and informing the Civil Service Commission of such action; (3) A declaratory judgment decIaring the action of Burning as Collector of Customs in making criminal charges against the plaintiff and finding him guilty thereof to be illegal and void; (4) An order directing Durning as Col-lector of Customs to summarily reinstate plaintiff in his position as an inspector and pay all back wages which had accrued, tog-ether with the sum of $152.44 deducted from his earned wages, . .... Tbe dlStnCtj: Wdge granted the defendants motion for a dismissal of the com-...... , plaint for failure to state a cause of action, . __ ’ ' ’ ‘ UPP’ The requirements of the applicable stat-ute, 5 U.S.C.A. § 652 and regulations, 5 C.F.R. § 9.101 and § 9.102, which are set forth in the margin in so far as here relevant were -clearly met. Even if in a case, involving serious charges it might have been desirable to give the employee an opportunity to produce witnesses, the statute has made this purely discretionary with the hearing officer. The claim of the plaintiff that his written answer was not considered seems quite meaningless. The defendants not only received the plaintiff’s written defense, but granted him an opportumty to present his defense orally. ‘ Plaintiff’s further contentions >hat he was deprived of property without .due process of law, and of the right to trial by jury, are both negatived by the decision of Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, which was affirmed by the Supreme Court — though the justices were evenly divided, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352. See also Carter v. Forrestal, 86 U.S.App.D.C. 53, 175 F.2d 364. The suggestion in the Note in the Flarvard Law Review, 65 Harv.L.R. 156-8, to the effect that the plaintiff’s reputation is “property” within the. meaning of the Fifth Amendment is not in our opinion to be seriously weighed against the long established view that a civil service employee does not have a constitutionally protected right to his office. Cf. Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 1009, 44 L.Ed. 1187. The only jurisdiction for the reC0very of salary is vested in the United States Court of claims. 28 U.S.C. § 1346(d). The plaintiff’s claim for loss of earnings appears to us to be within the statute. Moreover, the district court has no power to reinstate the plaintiff who here was removed by the Secretary of the Treasury and can only be reinstated in a suit in the District of Columbia to which the Secretary would be a necessary party. See Williams v. Fanning, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95. For the foregoing reasons the order and judgment below are affirmed. . “§ 652. Removal without pay from olassified civil service — Only for cause; notice; copy of charges; time to answer; examination; record; persons exempt. “(a) No person in the classified civil service of the United States shall be removed or suspended without pay therefrom except for such cause as will promote the efficiency of such service and for reasons given in writing. Any person wfiose removal or suspension without pay is sought shall (1) have notice of the same and of any charges preferred against him; (2) be furnished with a copy of such charges; (3) be allowed a reason-able time for filing a written answer to such charges, with affidavits; and (4) be furnished .at the earliest practicable date with a written decision on such answer. No examination of witnesses nor any trial or hearing^ shall he required except in the discretion of the officer or employee directing the removal or suspension without pay. Copies of the charges, the notice of hearing, the answer, the reasons for removal or suspension without pay, and the order of removal or suspension without pay shall be made a part of the records of the proper department or agency, as shall also, the reasons for reduction in grade or compensation; and copies of the same shall be furnished, upon request, to the person affected and to the Civil Service Commission. This subsection shall apply to a person within the purview of section 863 of this title, only if he so elects.” “§ 9.101. Agency responsibility for separation or demotion of employees. ía) The employing agency shall remove, demote, or reassign to another position any employee in the competitive service whose conduct or capacity is such that his removal, demotion, or reassignment will promote the efficiency of the service. * * ” “§ 9.102. Procedure in separating, suspending, or demoting permanent and indefinite employees.” “(1) Actions against employees. No employee, veteran or nonveteran, shall be separated, suspended, or demoted except for such cause as will promote the efficiency of the service and for reasons given in writing. The agency shall notify the employee in writing of the action proposed to be taken. This notice shall set forth, specifically and in detail, the charges preferred against him. The employee shall be allowed a reasonable time for filing a written answer to such charges and furnishing affidavits in support of his answer. He shall not, however be entitled to an examination of witnesses, nor shall any trial or hearing be required except in the discretion of the agency. If the employee answers the charges, his answer must be considered by the agency. Following consideration of the answer, the employee shall be furnished at the earliest practical date with a written decision. If the agency determines that removal or other action is warranted, the enrployee shall be notified in the decision of the reasons for the action taken and its effective date. Copies of the charges, notice of hearing (if any), answer, reasons for removal, or other action, shall be made a part of the records of the department or agency concerned. * * * ” . “(d) The district courts shall not have jurisdiction under this section of: “(1) * * * “(2) Any civil action or claim to recover fees, salary or compensation for official services of officers or employees of the United States.” Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:
sc_authoritydecision	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. STANDARD OIL CO. v. PECK, TAX COMMISSIONER, et al. No. 184. Argued January 3-4, 1952. Decided February 4, 1952. Isador Grossman and Rufus S. Day, Jr. arguéd the cause and filed a brief for appellant. Isadore Topper argued the cause for appellees. With him on the brief were C. William O’Neill, Attorney General of Ohio, Robért E, Leach, Assistant Attorney General-; Frank T. Cullitan and Saul Danaceau. Mr. Justice Douglas delivered the opinion of the Court. . Appellant, an Ohio corporation, owns boats and barges which it employs for the transportation of oil along the Mississippi and Ohio Rivers. The vessels neither pick up oil nor discharge it in Ohio., The main terminals are in Tennessee, Indiana, Kentucky, and Louisiana. The maximum river mileage traversed by the boats and barges on any trip through waters bordering Ohio was l7% miles. These 17y2 miles were in the section of the Ohio River which had to be traversed to reach Bromley, Kentucky. While this stretch of water bordered Ohio, it was not necessarily within Ohio. The vessels were registered in Cincinnati, Ohio, but only stopped in Ohio for occasional fuel or repairs. These stops were made at Cincinnati; but none of them involved loading or unloading cargo. The Tax Commissioner of Ohio, acting under §§ 5325 and 5328 of the Ohio General Code, levied an ad valorem personal propérty tax on all of these vessels. The Board of Tax Appeals affirmed (with an exception not material here), and the Supreme Court of Ohio sustained the Board, 155 Ohio St. 61, 98 N. E. 2d 8, over the objection that the tax violated the Due Process Clause of the Fourteenth Amendment. The case is here bn appeal. 28 U. S. C. § 1257 (2). Under the earlier view governing the taxability of vessels moving in the inland waters (St. Louis v. Ferry Co., 11 Wall. 423; Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409; cf. Old Dominion S. S. Co. v. Virginia, 198 U. S. 299), Ohio, the state of the domicile, would have a strong claim to the whole of the tax that has been levied. But the rationale of those cases was rejected in Ott v. Mississippi Barge Line Co., 336 U. S. 169, where we held that vessels moving in interstate operations along the inland waters were taxable by the same standards as those which Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18, first applied to railroad cars in interstate commerce. The formula approved was one which fairly apportioned the tax to the commerce carried on within the state. In that way we placed inland water transportation on the same constitutional footing as other interstate enterprises. The Ott caáfe involved a tax by Louisiana on vessels of a foreign corporation operating in Louisiana waters. Louisiana sought to tax only that portion of the value of the vessels represented by the ratio between the total number of miles in Louisiana and the total number of miles in the entire operation. The present case is sought to be distinguished on the.ground that Ohio is the domiciliary state and therefore may tax the whole value even though the boats and barges operate outside Ohio. New York Central R. Co. v. Miller, 202 U. S. 584, sustained a tax by the domiciliary state on all the rolling stock.of a railroad. But in that case it did not appear that “any specific cars or any average of cars” was so continuously in another state as to be taxable there. P. 597. Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, allowed the domiciliary state to tax the entire fleet: of airplanes operating interstate; but in that case, as in the Miller case, it was not shown that “a. defined part of the domiciliary corpus” had acquired a. taxable situs elsewhere. P. 295. Those cases, though exceptional on their facts, illustrate the reach of the taxing power of the state of the domicile as contrasted to that of the other states. But they have no application here since most; if not all, of the barges and boats which Ohio has taxed were almost continuously outside Ohio during the taxable year. No one vessel may have been continuously in another state during the taxable year. But we do know that most, if not all, of them were operating in other waters and therefore under Ott v. Mississippi Barge Line Co., supra, could be taxed by the.several states on an apportionment basis. The rule which permits taxatioft by two or more states on. an apportionment basis precludes taxation of all of the property by the state of the domicile. See Union Transit Co. v. Kentucky, 199 U. S. 194. Otherwise there would be multiple taxation of interstate operations and the tax would have no relation to the opportunities, benefits, or protection which the taxing state gives those operations. Reversed. Mr. Justice Black dissents. Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_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". Ruth D. CORLEY et al., Appellants v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE, a corporation, Appellee. No. 16270. United States Court of Appeals District of Columbia Circuit. Submitted Oct. 11, 1961. Decided Nov. 2, 1961. Mr. Charles A. Iovino, Jr., Washington, D. C., submitted on the brief for appellants. Mr. Richard W. Galiher, Washington, D. C., with whom Mr. William E. Stewart, Jr., Washington, D. C., was on the brief, submitted on the brief for appellee. Before Wilbur K. Miller, Chief Judge, and WASHINGTON and BURGER, Circuit Judges. ..... ,, , ,TT _ „„ „ T 1 WILBUR K. MILLER, Chief Judge. Ruth Corley and her husband sued John E. Lockhart and Life and Casualty Insurance Company, his employer, to recover for personal injuries and property damage sustained when Lockhart’s automobile collided with the Corley car on Friday, March 15, 1957, at the intersection of 7th and L Streets, S. E., in the District of Columbia. On the theory that Lockhart was not acting within the scope of his employment, the company moved for summary judgment. After considering depositions and affidavits, the trial court made findings of fact that at the time of the accident Lockhart was operating his own automobile, was not then in the employ of the insurance company, and therefore was fot gating the automobile as its agent, servant or employee, but was on his own personal business. Accordingly, summary judgment was granted to the insurance company and this appeal foll°we^- The action against Lockhart, who has been adjudicated a bankrupt, is not involved here. The sole question is, was a genuine issue of material fact raised as to whether Lockhart was acting within the scope of his employment when the accident happened ? It appears from the depositions and affidavits that, at the time of the aecident, Lockhart was an insurance salesman employed by the company at a salary of $35.00 per week plus commissions, with an allowance of $3.50 per week toward the expense of operating his own car in covering the territory in which he collected premiums. The scene of the. accident was not within the area assigned to him. .It appeared that he usually devoted only four days a week to company business, and ordinarily did not choose to work on Friday. His affidavit stated he was not engaged in any activity on behalf of the-company on the Friday when the accident occurred, but had visited his mother-in-law’s home and was on the way from there to see his brother-in-law at a gas station where the latter was employed, with the intention of buying tires for his car. His deposition was to the same effect. An affidavit of the company manager stated the accident happened outside Lockhart’s “debit area,” that is, his assigned territory, and “upon information and belief” concluded Lockhart was 'not acting within the scope of. his employment at the time of the collision. The affidavit of an attorney for the Corleys said he was present at a hearing ■in the Corporation Counsel’s office when Lockhart made certain statements in connection with his activities on the date of the accident, March 15, 1957, and heard Lockhart say “ * * * that just prior to the accident he had delivered an insurance policy and he was going to acquire new tires for his car at which time he expected to make a sale of an insurance policy to a person at the service station where he intended to buy the tires, and that when he had finished with this he had another prospect to call upon.” The affidavit which recited these alleged admissions was enough to raise a genuine issue of material fact as to whether he was acting within the scope of his employment, if it “set forth such facts as would be admissible in evidence,” as required by Rule 56(e), Federal Rules of Civil Procedure, 28 U.S. C.A. We think the rule does not require an unequivocal ruling that the evidence suggested in this particular affidavit would be admissible at the trial as a condition precedent to holding the affidavit raises a genuine issue. In many cases, it is possible to say without qualification that evidence recited in an affidavit under Rule 56(e) would or would not be admissible; but it is not so here. Admissibility of testimony sometimes depends upon the form in which it is offered, the background which is laid for it, and perhaps-on other factors as well. It is therefore possible, and perhaps probable, that Lockhart’s alleged admissions out of court will be admissible. In the particular circumstances here involved, this is sufficient to defeat the motion for summary judgment, because courts are inclined to hold the movant to a strict demonstration that no genuine issue exists. It is argued for the company that Lockhart’s statements at the Corporation Counsel’s office were not a part of the res gestae, and were therefore clearly inadmissible. That the statements were not a part of the res gestae is not conclusive. At a trial, the District Court must resolve the question of admissibility, not only on the basis of the form in which the testimony is offered and the background which is shown, but also in the light of our prior decisions, such as the Murphy Auto Parts case ***and Koninklijke Luchtvaart Maatschappij, etc. v. Tuller. It is also argued by appellee that Lock-hart’s admissions constituted “the alleged statement .of a claimed agent standing alone, offered for the purpose of proving agency,” and so were inadmissible under the principle that agency cannot be proved by the declarations of the person whose agency is sought to be established. The fact that Lockhart was an agent of the company was otherwise amply established and indeed admitted; so, testimony concerning his statements before the Corporation Counsel would not be offered to establish agency, but rather to show that at the time in question he was acting for his principal, within the scope of his employment. The question whether he was or was not so acting is quite different from the question whether agency existed at all. In our view, a genuine issue of material fact as to whether Lockhart was acting within the scope of his employment was raised by the affidavit which set forth his alleged statements at the Corporation Counsel’s office. For that reason summary judgment should not have been granted to the insurance company. Reversed and remanded. . Murphy Auto Parts Co., Inc. v. Ball, 101 U.S.App.D.C. 416, 249 F.2d 508 (1957), cert. denied 355 U.S. 932, 78 S.Ct. 413, 2 L.Ed.2d 415 (1958). . 110 U.S.App.D.C. 282, 292 F.2d 775 (1961). 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_state	33	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". Giles E. BULLOCK and Katherine D. Bullock, Plaintiffs-Appellants, v. Dana LATHAM, Commissioner of Internal Revenue, and E. C. Coyle, Jr., District Director of Internal Revenue, Defendant-Appellee. No. 284, Docket 26703. United States Court of Appeals Second Circuit. Argued May 1, 1962. Decided July 20, 1962. Milo Thomas, Rochester, N. Y. (Burton S. Schreiber, Rochester, N. Y., on the brief), for plaintiff-appellants. Morton K. Rothschild, Attorney, Department of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and David O. Walter, Attorneys, Department of Justice, Washington, D. C., John T. Curtin, U. S. Atty., for the Western District of New York, Buffalo, N. Y., on the brief), for defendant-appellee. Before WATERMAN, MOORE and FRIENDLY, Circuit Judges. LEONARD P. MOORE, Circuit Judge. Plaintiffs appeal from an order dissolving a preliminary injunction and dismissing the amended complaint wherein plaintiffs seek a declaration that title to certain machinery is in the plaintiff Giles E. Bullock. E. C. Coyle, Jr,, District Director of Internal Revenue, was the only defendant served. He moved by motion for summary judgment to dismiss the complaint upon the grounds that the court lacked jurisdiction of the action and that, there being no genuine issues as to material facts, defendant was entitled to judgment as a matter of law. The court below held that actions with respect to federal taxes were expressly excepted from the provisions of the Declaratory Judgment Act, 28 U.S.C. § 2201, and that jurisdiction could not be founded upon 28 U.S.C. §§ 1340 or 2463. Accordingly, the court dismissed the complaint (D.C., 198 F.Supp. 627). Appellate jurisdiction is based upon 28 U. S.C. § 1291. ' The facts as disclosed by the complaint and affidavits are in substance: On November 11, 1959, defendants to satisfy an adjudicated tax liability of plaintiffs of $101,263.32 sold real estate owned by plaintiff, Giles E. Bullock, together with machinery and equipment therein for $103,610.00 ($61,100 being received for the real estate and $42,500 for the machinery and equipment). Defendants credited the $61,100 against the $101,262.32 due from plaintiffs but applied the $42,500 against a tax liability of a corporation, E. C. Brown Company, of which plaintiff, Giles E. Bullock, was the sole owner. Various theories of ownership of the machinery and fixtures are alleged which all lead to the complainant’s conclusion that title to the machinery and fixtures was vested in Giles E. Bullock and that the proceeds of the sale should have been applied to the plaintiffs’ tax liability and not to the tax liability of E. C. Brown Company. Defendants appearing specially to contest the court’s jurisdiction in their answer admit applying only $60,580.83 to plaintiffs’ tax and $42,362.64 to E.. C. Brown Company’s ' tax. Had defendants applied the entire amount realized against plaintiffs’ tax liability, it would have been paid in full. The only real question presented is whether Giles E. Bullock or E. C. Brown Company owned the machinery and fixtures. If they were the property of Giles E. Bullock, then his property has been taken to satisfy the tax obligation of another; if the Company owned them, defendants made a proper allocation of the proceeds. Defendants’ answer challenged the jurisdiction of the court (1) because the declaratory judgment statute specifically excepts controversies “with respect to Federal taxes” (28 U.S.C. § 2201); (2) because the action seeks to restrain “the assessment or collection” of a tax (26 U. S.C. § 7421); and (3) because the action seeks to restrain agents of the United States in the discharge of their official duties. The court below held that there was no jurisdiction to hear plaintiffs’ complaint and that any claim to jurisdiction under 28 U.S.C. § 1340 or § 2463 “must be ‘with respect to federal taxes’ ” and, hence, within the exception contained in § 2201. The controversy here is not over the amount of any tax. Neither plaintiffs nor the Company contest the tax. Because there is no diversity, the court below held that if the action is not with respect to federal taxes, there is no jurisdiction “because there is no other basis”. Section 1340 (28 U.S.C.) gives to district courts “original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue * * * ” This section relates to taxes, argue defendants, which brings the action back again within the exception of Section 2201. The law, however, frequently does not follow the narrow path of pure logic and seldom can indulge itself in the academic certainties of syllogistic reasoning. Nor can reference be made to the provisions of any one section without the probability arising of having to reconcile it with some other section or decisional law apparently in conflict. And so here. The conclusion to be gleaned from the many decisions dealing with the problem presented is succinctly stated in the “Law of Federal Income Taxation” (9 Mertens § 49.224) and is that “Courts have granted declaratory judgments, however, in suits in which the plaintiff has charged that his property may be taken to discharge the tax liability of another * * * ” To reach this conclusion, a straight path cannot be trod. Along the path has been placed a hurdle such as is found in Section 7421 which prohibits the maintenance of any suit to restrain the collection of any tax. This hurdle, however, can be by-passed by adhering to Raffaele v. Granger, 3 Cir., 1952, 196 F.2d 620, 623, wherein the court said, “This court and others have consistently held that Section 3653(a) of Title 26 [§ 7421(a)] does not prevent judicial interposition to prevent a Collector from taking the property of one person to satisfy the tax obligation of another. Rothensies v. Ullman, 3 Cir., 1940, 110 F.2d 590; Glenn v. American Surety Co., 6 Cir., 1947, 160 F.2d 977; Long v. Rasmussen, [9 Cir.] D.C.Mont. 1922, 281 F. 236.” Section 1340 (Title 28) is clear enough but can reliance be placed on it without running afoul of the section 2201 exception? The decisions give an affirmative answer although many of them also rely on Section 2463 (Title 28) for jurisdictional support. Section 2463 provides in substance that property taken under any revenue law of the United States shall be deemed to be in the custody of the law and subject only to the “orders and decrees of the courts of the United States having jurisdiction thereof.” Probably the most cited case in this field is Long v. Rasmussen, Collector of Internal Revenue, et al., 9 Cir., 1922, 281 F. 236, 238. There the Collector seized the plaintiff’s property for the tax owed . by another. The court had no difficulty with the statute against restraint of tax collection (26 U.S.C. § 7421) holding that it applied only to taxpayers but then said, “They [the revenue laws] relate to taxpayers, and not to nontaxpayers. The latter are without their scope. No procedure is prescribed for nontaxpayers, and no attempt is made to annul any of their rights and remedies in due course of law.” If the case were not under the revenue laws, how jurisdiction was obtained in the absence of diversity is not explained except that the court believed that it was not improbable that the predecessor section (R.S. § 934) of section 2463 “contemplates the instant case.” However, federal jurisdiction must be found under some statute. Only after it exists, is it then possible to invoice the theory that the jurisdictional exclusion of the summary judgment remedy of section 2201 is limited to actual controversies with respect to tax liabil-Dy- A seizure of property and its sale by a District Director of Internal Revenue is an act “arising under [an Act] * * * of Congress providing for internal revenue” (Section 1340). Of necessity, he is acting within the framework of the revenue laws. This section would appear to provide a broad jurisdictional base which is not annulled by the narrower limitations of the declaratory judgment section. Sections 1340 and 2463 singly or in combination have throughout the years satisfied the federal courts’ jurisdictional requirements in cases in which a non-taxpayer seeks to prevent his property from being seized and sold to pay the tax obligation of another. This is the very situation presented here because Giles E. Bullock, vis-a-vis the Brown Company, is a non-taxpayer, To set forth jn fuj] the facts of the many cases accepting jurisdiction would serve little purpose. The principle has been stated succinctly in Fine Fashions, Inc. v. Moe, D.C.S.D.N.Y., 1959, 172 F.Supp. 547: “It is well-settled that when property belonging to A is levied upon to satisfy the tax obligation of B, A is not without remedy but may seek redress in the federal courts.” ^ „ ,, , Dealmg with the power of the court !° entertain a declaratory judgment court Tomlinson v. Smith, 7 Cir., 1942, 128 F.2d 808, said: ^ “What we have said concerning Die jurisdiction of the court to issue a restraining order is, as we view Die matter, determinative of its jurisdiction to declare the rights of Die parties relative thereto. It is unreasonable to think that a court with authority to issue a restraining order is without power to declare Die rights of the parties in connecD°n therewith.” Other cases relating to jurisdiction are. Botta v. Scanlon, 2 Cir., 1961, 288 F.2d 504 (Action against District Director of Internal Revenue to have assessment declared void and to enjoin. Jurisdiction upheld; 26 U.S.C. § 7421, no bar); United States v. Coson, 9 Cir., 1961, 286 F.2d 453 (Action against United States by plaintiff claiming to be the owner of property against which a tax lien had been filed for taxes owed by another; jurisdiction upheld under 28 U.S.C. § 1340 and § 2410); Stuart v. Willis, 9 Cir., 1957, 244 F.2d 925 (“the power of the Collector never extends beyond the rights of the taxpayer upon whose property the levy is sought. * * the property of a third person is immune from seizure to enforce the liability of the person owing the tax”); Seattle Association of Credit Men v. United States, 9 Cir., 1957, 240 F.2d 906 (Action against United States to quiet title to funds levied upon by District Director of Internal Revenue; jurisdiction upheld on basis of 28 U.S.C. § 2463); Holland v. Nix, 5 Cir., 1954, 214 F.2d 317 (Jurisdiction upheld in action to enjoin Director of Internal Revenue from enforcing assessments against property of non-taxpayer); Rothensies v. Ullman, 3 Cir., 1940, 110 F.2d 590 (Jurisdiction under Section 934 (R.S.), 28 U.S.C. § 747, now § 2463 not defeated by 26 U.S.C. § 3653, now 26 U.S.C. § 7421); Guttman v. United States, D.C.E.D.N.Y., 1961, 196 F.Supp. 384 (Motion to dismiss for lack of jurisdiction denied. Action against United States, District Director of Internal Revenue, et al. to recover proceeds of life insurance policies against which tax liens had been filed. 28 U. S.C. § 2201, no bar to jurisdiction); Rutledge v. Riddell, D.C.S.D.Calif.1960, 186 F.Supp. 552 (Jurisdiction upheld as to action against District Director of Internal Revenue); Szerlip v. Marcelle, D.C.E.D.N.Y.1955, 136 F.Supp. 862 (Jurisdiction under 28 U.S.C. § 1340 and § 2463 not affected by 26 U.S.C. § 7421 where third party’s property seized for tax of another); Gerth v. United States, D.C.S.D.Calif., 1955, 132 F.Supp. 894 (Action against District Director of Internal Revenue, et al. to quite title to property taken as security for taxes owed by another; jurisdiction upheld under 28 U.S.C. § 2463); Filipowicz v. Rothensies, D.C.Pa.1940, 31 F.Supp. 716 (Action for declaratory judgment against Collector of Internal Revenue, et al. Jurisdiction under Declaratory Judgments Act upheld). Nothing said in Jolles Foundation v. Moysey, 2 Cir., 1957, 250 F.2d 166, is to the contrary. There the question related to the tax liability of the Foundation. By a declaratory judgment action, the taxpayer sought to change its taxable status. The issue was “with respect to Federal taxes” and the exception of Section 2201, therefore, applied. Upon the trial, the sole issue to be determined will be whether title to the machinery and fixtures is in Giles E. Bullock or E. C. Brown Company. If in Bullock, the proceeds of the sale in the hands of the District Director should be applied to the Bullock tax liability; if in the Company, to its tax liability. Jurisdiction rests upon sections 1340 and 2463 and does not come within the exception of section 2201. That exception sufficiently serves its purpose if limited to controversies involving tax liabilities of parties qua taxpayers and if not construed as foreclosing declaratory judgment relief to persons claiming an interest in property levied upon to satisfy the tax obligations of another. Accordingly, the order is reversed and the case remanded so that upon the trial the issue of title and the proper application of the proceeds may be determined. The judgment is reversed and the case is remanded to the District Court. 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_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. S. L. CROOK CORPORATION v. POTTER et al. No. 9764. Circuit Court of Appeals, Sixth Circuit. Nov. 6, 1944. S. D. Hodge, of Princeton, Ky., and Charles Ferguson, of Smithland, Ky., for appellant. C. A. Pepper, of Princeton, Ky., for appellees. Before SIMONS, ALLEN, and McALLISTER, Circuit Judges. PER CURIAM. The above cause coming on to be heard upon arguments, briefs of counsel, and transcript of the record, it appears that appellee Potter is the assignee of a judgment of foreclosure against property of appellant; that upon appellee’s motion for an order of sale in such foreclosure proceedings, appellant filed answer and counterclaim, setting forth that appellee had entered into a contract to extend the time for payment of the judgment, that such extended period had not yet expired, and that appellee owed appellant, by virtue of the terms of a lease of the property in question, more than enough to pay the judgment debt. It appears from the pleadings that appellee is not a resident of the State of Kentucky and owns no property located therein. Section 378 of the Civil Code of Practice of Kentucky permits a judgment debtor to enjoin the enforcement of a judg- • ment against him if he has an action pending in which the judgment could be used as a set-off against the judgment creditor, where it is necessary to do so in order to prevent loss by insolvency, non-residence, or otherwise; and Section 285 of the Civil Code of Practice of Kentucky requires that the action seeking such injunction be brought in the court in which the judgment was rendered. But it appears that appellant has made no application to enjoin the enforcement of the judgment. The trial court correctly held that appellant could not, in proceedings for sale under judgment of foreclosure, and without injunctive proceedings, stay such proceedings and litigate its claim against appellee by way of answer and counter-claim. Wherefore, the judgment of the district court is affirmed. 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_r_bus	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. TADEMY v. SCOTT et al. No. 11477. Circuit Court of Appeals, Fifth Circuit. Oct. 23, 1946. J. F. Kemp and J. M. Johnson, both of Atlanta, Ga., Ross R. Barnett, P. Z. Jones, and John E. Stone, all of Jackson, Miss., for appellant. W. Colquitt Carter and Shepard Bryan, both of Atlanta, Ga., for appellees. Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges. McCORD, Circuit Judge. Edward Tademy, a resident of Mississippi, brought action for damages for libel against C. A. Scott, administrator, and others, residents of Georgia.' The two newspaper articles upon which action was predicated appeared on successive weeks in the Jackson Advocate, a paper for negroes, edited, circulated, and sold in Jackson, Mississippi, and vicinity by one Percy Green. The Jackson Advocate was listed and recognized by the Scotts as a member of their “Scott Newspaper Syndicate”, and the editions in question were printed at the Scott plant in Atlanta, Georgia. Among other asserted defenses, the Scotts sought to have the action dismissed on the ground that notice and opportunity for retraction and apology had not been given by Tademy as required by the Georgia statute governing libel actions against newspapers. Georgia Code, Sections 105-712, 105-713. Decision on this point of law was reserved by the trial judge and the parties proceeded with the introduction of evidence. Trial was had without a jury, and at the conclusion of the trial the court entered findings of fact and conclusions of law, and entered judgment for the defendants. In addition to findings on the merits, the court concluded that the failure of Tademy to give notice as required by the Georgia statute precluded recovery by him. We shall not discuss the evidence or the findings made on the merits, for we are of opinion that the issues could not be developed until decision was made as to the applicability of the Georgia notice statute. It is clear that the libellous articles were prepared and written by Percy Green in Jackson, Mississippi; that the matter was printed by the Scotts in Atlanta, Georgia; and that circulation and distribution of the newspapers was made in Mississippi. Jurisdiction of the federal court sitting in Georgia was obtained because of the diversity of citizenship of the parties. Is the Georgia notice statute applicable? In diversity of citizenship cases the conflict of law rules applied by federal courts must conform to those prevailing in the state courts. “Otherwise the accident of diversity of citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side.” Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477. In actions such as this, the local policy of the state must be considered. Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481, 134 A.L.R. 1462. Certainly, the statutes of Georgia reflect the public policy of the state. Lott v. Board of Education, 164 Ga. 863, 139 S.E. 722, 723. The Georgia statute governing the bringing of newspaper libel actions provides : “Notice to defendant specifying libelous article, etc., as condition precedent to civil action. — Before any civil action shall be brought because of any publication of a libel in any newspaper, magazine or periodical, the plaintiff shall, within the period of the statute of limitations for such actions and at least five days before instituting such action, give notice in writing to the defendant specifying the article and the statements therein which he claims to be false and defamatory and further stating in said notice what the complaining party claims to be the true state of facts.” Georgia Acts 1939, p. 343, Georgia Code, Section 105-712. Section 105-713 of the Georgia Code provides for the effect of retraction as to damages recoverable for libel, and outlines the circumstances under which a plaintiff “shall recover only such special or actual damages as the plaintiff shows he has sustained.” In the only cases in which the cited notice statute has been considered by the Georgia appellate courts, it was held that the statute was constitutional and that an action filed without the giving of notice was premature. Hall v. Kelly, 61 Ga.App. 694, 7 S.E. 290; Kelly v. Hall, 191 Ga. 470, 12 S.E.2d 881. The notice statute fixes and declares the policy of the State of Georgia in actions such as this, and it is clear that had this case been brought in the state court it would have been held to be prematurely brought. Hall v. Kelly and Kelly v. Hall, supra.; Cf. Obear v. First National Bank, 97 Ga. 587, 25 S.E. 335, 33 L.R.A. 384. A federal court sitting in Georgia should likewise hold that the action was prematurely brought. The judgment for the defendants should not have been a general judgment of non-liability on the merits. The judgment should have been one of dismissal without prejudice because of the plaintiff’s failure to comply with the Georgia notice statute governing newspaper libel actions. The judgment is modified accordingly, and as modified is affirmed. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_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. WEST COAST LIFE INS. CO. et al. v. MERCED IRR. DIST. No. 9242. Circuit Court of Appeals, Ninth Circuit. Sept. 5, 1940. Rehearing Denied Oct. 15, 1940. Chas. L. Childers, of El Centro, Cal., for appellant West Coast Life Ins. Co. Hugh K. McKevitt, of San Francisco, Cal., for appellant Pacific Nat. Bank of S. F. Clark, Nichols & Eltse and George Clark, all of Berkeley, Cal., for appellant Mary E. Morris. Chase, Barnes & Chase and Lucius F. Chase, all of Los Angeles, Cal., for appellants R. D. and Belle Crowell. Peter turn Suden, of San Francisco, Cal., for appellants Rigby and turn Suden, etc. David Freidenrich, of -San Francisco, Cal., for appellant Claire Strauss. Herman Phleger and Brobeck, Phleger & Harrison, all of San Francisco, and Evan Haynes, of Berkeley, Cal., for appellants Moore et al. W. Coburn Cook, of Turlock, Cal., for appellants Bekins et al. Plugh K. Landram and C. Ray Robinson, both of Merced, Cal., and Downey, Brand & Seymour and Stephen W. Downey, all of Sacramento, Cal., for appellee Merced Irr. Dist. Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges. STEPHENS, Circuit Judge. Appellee Merced Irrigation District, an irrigation district organized under the provisions of the California Irrigation District Act, Cal.Stats. 1897, p. 254, as amended, Decring’s General Laws, Act 3854, filed a petition for composition of debts under the provisions of Chapter IX of the Bankruptcy Act of 1898 as amended, 11 U.S.C.A. §§ 401-404. After a hearing of the petition, the District Court entered its interlocutory decree confirming the plan of composition proposed by the District. This is an appeal by certain bondholders of the District from said decree of confirmation. The District is one of the largest irrigation districts in California, and was organized in 1919. To complete the development of the District three separate series of bonds, aggregating $16,190,000 in principal amount, were issued and sold. The first issue was in the principal amount of $11,940,000, dated January 1, 1922, due serially from 1934 to 1962, and bearing interest part at 5^4% and part at 6%. The second issue was in the principal amount of $3,250,000, dated May 1, 1924, due serially from 1937 to 1964, and bearing interest at 6%. The third issue was in the principal amount of $1,000,000, dated April 1, 1926, due serially from 1965 to 1966, a'nd bearing interest at 6%. The bonds were each in the amount of $1,000. The District made all payments according to the maturities of its bond issues, including principal and interest, up to and including the payment due January 1, 1933. It defaulted on the July 1, 1933, payment. Prior to such default and in March, 1932, a committee of representatives of the bond underwriters and an association called the California Irrigation and Reclamation District Bondholders Association, merged and thereafter those so merging functioned as a Bondholders’ Committee. This Committee solicited the deposit of District Bonds under a deposit agreement dated March 1, 1932, and a major portion of the bonds, including those of some of appellants herein, were deposited with the Committee. After negotiations a refunding program was submitted by the Board of Directors to the electors of the District, and was voted upon favorably in November, 1933. This program provided fqr payment in .full of the bond principal of the District with an extension of maturities and some reduction in interest. After the enactment of Section 36 of the Emergency Farm Mortgage Act, 43 U.S. C.A. § 403, an application was made on December 16, 1933 by the District to the Reconstruction Finance Corporation [hereinafter for convenience referred to as R. F. C.], for funds with which to reduce and refinance the debt of the District. The R. F. C. on November 14, 1934 adopted a resolution authorizing a loan , to the District of not exceeding $8,600,000 plus 4% interest upon the amount to be paid thereunder. It was provided in the resolution that the loan should be made subject to certain specified terms and conditions; one of which was set forth as follows in the resolution: “5. * * (c) All or any part of the Old Securities acquired or held by or on behalf of this Corporation (R.F.C.) through any disbursement of or from the loan authorized hereunder as well as all rights in or to such Old Securities, may be kept alive for a greater or lesser time and for any purpose the Division Chief and Counsel may deem necessary, but this Corporation may at any time require the Borrower [District] to issue its new 4% bonds and exchange the same for the Old Securities held by or on behalf of this Corporation. Until such Old Securities have been exchanged'for'New Bonds, all such securities as well as all rights in or to the same shall continue to be and constitute obligations of the Borrower for the full amount thereof and nothing in this resolution shall be deemed to limit the right of this Corporation to enforce or cause to be enforced full payment of principal and interest of such Old Securities as and when the Division Chief and Counsel shall deem it advisable to 'do so * On December 11, 1934, the District by resolution accepted the loan and agreed to the terms and conditions of the resolution of R. F. C. above referred .to. The loan from R. F. C. was calculated to pay 51.501 cents on the dollar of bond principal, with nothing for accrued interest. The proposal was submitted to the California Districts Securities Commission, and the Commission by its Order No. 54 on February 15, 1935, approved the issuance of the refunding bonds and the making of the contract therefor. Thereafter the proposal was submitted to the electors of the District, and they voted in favor thereof on March 20, 1935. At this time the Bondholders’ Committee submitted to the bondholders whom it represented a questionnaire to determine whether they desired to take advantage of the cash settlement proposition. The nfa-jority of the bondholders (63% of the total) indicated their preference for the cash offer plan. The Committee thereupon voted in favor of the plan, and notified all depositing bondholders that they could withdraw their bonds within thirty days upon payment of their proportion of the expenses of the Committee, otherwise the Committee would deposit all bonds in its hands under the plan. Certain of the bondholders, opposing the plan, withdrew their bonds from the Committee. By April 18, 1935, 75% of the District Bonds had been deposited under the cash plan, and the District filed a proceeding under Section 80 of the Bankruptcy Act as then in effect, 11 U.S.C.A. § 303, for confirmation. We shall refer to this as the first bankruptcy case. Arrangements were made to carry out the plan, and on October 4, 1935, over 86% of the outstanding bonds were deposited and surrendered and the owners thereof received their $515.01 per bond. On March 4, 1936, the District Court rendered its decree in the first bankruptcy case confirming the plan. An appeal was taken to this court from said decree, in view of the decision of the United States Supreme Court rendered on April 29, 1936, in the case of Ashton v. Cameron County Water Improvement District No. One, 298 U.S. 513, 56 S.Ct. 892, 80 L.Ed. 1309, holding Section 80 of the Bankruptcy Act unconstitutional. We entered our memorandum decision on April 12, 1937 [Bekins v. Merced Irr. Dist., 9 Cir., 89 F.2d 1002, certiorari denied 302 U.S. 709, 58 S.Ct. 30, 82 L.Ed. 548], reversing the decree of the District Court and remanding the cause with directions to dismiss. During the pendency of said proceedings in the Supreme Court, the District, on July 20, 1937, filed a petition in the Superior Court of the State of Californiá in and for Merced County under the provisions-of California Statutes 1937, Chapter 24, for confirmation of the same plan of composition. In this case the R. F. C. filed its “consent” dated July 9, 1937. The case went to trial and was contested by substantially the same objectors as appellants in the principal case. The cause was submitted and the trial judge rendered an opinion on October 5, 1937, in favor of the District and ordered the preparation of findings and a decree in accordance with his opinion. No findings, however, were ever presented by the District and none was ever filed and no judgment has ever been signed and filed therein. The present proceedings were inaugurated by the filing of a petition in the District Court on June 17, 1938, pursuant to Chapter TX of the Bankruptcy Act of 1938, 11 U.S.C.A. §§ 401-404. Appellants raise the plea of res judicata by virtue of the decision of this court reversing the decree in the first bankruptcy case above referred to, as their “Ninth Proposition”. They also raise, as their “Eighth Proposition” the pendency of the proceedings before the Superior Court for Merced County in bar of these proceedings. Other points raised by appellants may best be stated by quoting from their opening brief: “First Proposition: The Reconstruction Finance Corporation is not a creditor affected by the plan of composition and its consent is not entitled to be considered.” “Second Proposition: Petitioner is barred from obtaining confirmation of its proposed plan of composition by reason of its lack of good faith and constructive fraud.” “Third Proposition: Petitioner herein is not ‘insolvent or unable to meet its debts as they mature’ “Fourth Proposition: The plan of composition is not fair, equitable or for the best interests of the creditors, and it is discriminatory.” “Fifth Proposition: The claims were improperly classified as being all of the same class.” “Sixth Proposition: The decree unlawfully takes trust funds and vested rights belonging to the appellants.” “Seventh Proposition: By the terms of the statute the court was without jurisdiction.” “Tenth Proposition: Chapter IX of the Bankruptcy Act is void as applied to appellants.” We shall deal with each point raised by appellants separately, enlarging on the statement of facts under each point where necessary for an understanding of the issue raised. We do not treat of the points in the same order as treated by appellants, however, since we deem it more orderly to discuss jurisdictional matters first. Res Judicata Appellants’ contention here is that “the rule of res judicata applies to questions of law as well as to questions of fact”; that the decision of this Court in the first bankruptcy case reversed the judgment of the United States District Court “on the ground that the grant of judicial power under which the latter Court had acted in entering a decree which impaired the obligations of the bonds held by the appellants was outside the bankruptcy clause of the Constitution and on that ground void”; that “the grant of Federal judicial power under which the District Court acted in rendering its prior decree was the same as the grant of Federal judicial power under which the District Court acted in rendering the decree now appealed from”; that “when a person obtains a judgment that a statutory grant of power — whether administrative or judicial- — is void, he may not be endlessly required to re-try the issue by repeating the grant in new statutes”. For a clear understanding of appellants’ point, we shall briefly review the respective sections of the statute under which the first bankruptcy case was brought [48 Stat. 798, 11 U.S.C.A. §§ 301-303] and the statute under which the present case was brought [11 U.S.C.A. §§ 401-404], as well as the United States Supreme Court decisions as to their constitutionality. In Ashton v. Cameron County Water Improvement District, 298 U.S. 513, 56 S.Ct. 892, 896, 80 L.Ed. 1309, the Supreme Court had under consideration the question of the constitutionality of the first Act as applied to a Texas water improvement district. The Court examined the corporate structure of the improvement district, and decided that it was a political subdivision of the State of Texas. It held that the statute under consideration was invalid because an “application of the statutory provisions [in the old Act] might materially restrict [the district’s] control over its fiscal affairs”. It also decided that the State of Texas could not consent to the proceedings under the statute, for to do so would constitute an impairment of the obligation of contract, prohibited by the Federal Constitution. It was after the decision in the Ashton case, supra, that this court rendered its decision in the first bankruptcy case relied upon by the appellants in their plea- of res judicata, reversing a decree'of the District Court which had approved a plan of composition. In August, 1937, after the Ashton decision, the present Municipal Bankruptcy Act, 11 U.S.C.A. §§ 401-404 was passed. The question of the constitutionality of this second Act was before the United States Supreme Court in United States v. Bekins, 304 U.S. 27, 58 S.Ct. 811, 82 L.Ed. 1137. The Court considered the new Act in relation to the decision in the Ashton case, supra, and said (page 49 of 304 U.S., page 815 of 58 S.Ct., 82 L.Ed. 1137) : “In Ashton v. Cameron County District, supra, the court considered that the provisions of chapter 9 [§§ 78-80, 11 U.S. C.A. §§ 301-303,] authorizing the bankruptcy court to entertain proceedings for the ‘readjustment of the debts’ of ‘political subdivisions’ of a State ‘might materially restrict (its) control over its fiscal affairs,’ and was therefore invalid; that if obligations of States or their political subdivisions might be subjected to the interference contemplated by chapter 9, they would no longer be ‘free to manage their own affairs.’ "In enacting chapter 10 [§§ 81-84, 11 U.S.C.A. §§ 401-404] the Congress was especially * solicitous to afford no ground for this objection. In the report of the Committee on the Judiciary of the House of Representatives, which was adopted by the Senate Committee on the Judiciary, in dealing with the bill proposing to enact chapter 10, the subject was. carefully considered. The Committee said: “ ‘* * * The Committee on the Judiciary is not unmindful of the sweeping character of the holding of the Supreme Court above referred to (in the Ashton Case), and believes that H. R. 5969 is not invalid or contrary to the reasoning of the majority opinion. * * * “ ‘The bill here recommended for passage expressly avoids any restriction on the powers of the States or their arms of government in the exercise of their sovereign rights.and duties. * * ’ “We are of the opinion that the Committee’s points are well taken and that chapter 10 is a valid enactment. The statute is carefully drazvn so as not to impinge upon the sovereignty of the State. ” [Emphasis supplied.] The present proceedings are brought under the second Act, declared constitutional by the Bekins case, supra. It is asserted by appellants that the plea of res judicata should be sustained even though we might find differences in the two Acts. We quote from their brief on the question: “But the truth is that notwithstanding. any changes in words or lettering of sentences, the trial eventuates in that which offends the sovereignty of the state in the same manner that the decree of Section 80 offended, as determined in the Ashton case. It was not the form of trial, the form of the petition, the form of the consents or the name of the decree that counted. It was that an effectuating federal decree was not permissible under our plan of separate sovereignties.” This argument, of course, assumes that our decision in the first bankruptcy case reversing the decree of the District Court decided the question of law as between the' parties to this proceeding that Congress was without power to enact any bankruptcy legislation relating to a California irrigation district. That question was not1 before us, and could not have been decided. The sole questions with which we were concerned were — Did the District Court at that time have jurisdiction to entertain the proceedings? Was the statute which purported to confer jurisdiction on the District Court constitutional ? Our answer to those questions was in the negative — that at the time of such proceedings there was no valid law in effect conferring jurisdiction on the District Court. Subsequent to our decision a law has been enacted which has been declared valid by the Supreme Court, and that law gives the- District Court jurisdiction to entertain the proceedings now before us. This holding cannot be tortured into a decree that forever bars the petitioner from enjoying with all others this completely changed situation. It is argued, however, that the new Act cannot be distinguished from the old. Appellants state “When a person obtains a judgment that a statutory grant of power — whether administrative or judicial— is void, he may not be endlessly required to re-try the issue by repeating the grant in new statutes”. Sound as this statement undoubtedly is, as an abstract principle, it can have no application here where the Supreme Court has decided that the two Acts are effectively distinguishable. The Bckins case definitely holds that the constitutional objections found in the old Act are not to be found in the new Act. It is next asserted by appellants that even assuming that the two Acts are distinguishable as to the grant of judicial power, that is, that the Bekins case did not overrule the Ashton case in that respect, still the decision of this Court in the first bankruptcy case is res judicata of the question of the power of a State to give its consent to bankruptcy proceedings. There are two answers to this. First, an examination of our decision relied upon by appellants [89 F.2d 1002] does not disclose that we did other than to order that “a decree be filed and entered reversing the decree of said District Court, and remanding the cause with directions to dismiss the cause”. No reasons were given for our decision. There is nothing to indicate whether we relied upon the argument made at the hearing that the legislation was beyond the power, of Congress, or upon the argument that consent of the State would constitute an impairment of the obligation of contract. In fact, it does not even appear that we based our decision on either of these arguments. There may have been many reasons why the proceedings in the District Court should have been dismissed. At least these two reasons were argued by the appellants in that action. It cannot be said that the decision is res judicata as to either rule of law relied upon by appellants. Where a number of grounds for dismissal of an action are urged, an order of a court simply that the cause be dismissed, without an indication as to the ground upon which the court acted, can ;not be res judicata of all possible grounds ! for such order. The second answer to appellants’ theory is that even assuming that this court did decide that California could not properly consent to the proceedings brought under the old Act, this is not a holding that California can never consent to any bankruptcy legislation. All that was before us for decision was whether or not California could consent to the proceedings then before us. Assuming that we did decide the question of constitutionality upon this ground, still that decision would not be res judicata of the right of the State to consent to subsequent proceedings brought under a new and distinguishable Act. In Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465, the United States Supreme Court had under consideration a plea of res judicata in a case which may be said to be somewhat analogous to the one here under consideration. The cited case involved the question of the liability of a beneficiary of a testamentary trust for taxes upon income which he had assigned to others prior to the tax years. The question first arose with respect to the tax year 1923. The Circuit Court of Appeals for the Seventh Circuit, 83 F.2d 655, held that under the Illinois law the trust was a spendthrift trust and the assignments were invalid. Upon that basis the Court held that the income was taxable to the beneficiary. Thereupon the trustees brought suit in the Illinois state court to obtain a construction of the will in respect to the power of the beneficiary to make the assignment. In this suit it was decided that the trust was not a spendthrift trust and that the assignments were valid. In a subsequent action for taxes for the years 1924, 1925, 1926 and 1929, the Government contended that the decision of the Circuit Court of Appeals to the effect that the income from the trust was taxable to the beneficiary was res judicata. The Supreme Court ruled against the Government’s contention, stating [pages 8, 9 of 300 U.S., page 331 of 57 S.Ct. 81 L.Ed. 465]: “The Government contends that the judgment relating to the income for 1923 is conclusive in this proceeding as res judicata. Tait v. Western Maryland Ry. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405. * * “We think that the ruling in the Tait Case is not applicable. • That ruling and the reasoning which underlies it apply where in the subsequent proceeding, although relating to a different ■ tax year, the questions presented upon the facts and the law are essentially the same. * * * Here, after the decision in the first proceeding, the opinion and decree of the state court created a new situation. The determination oí petitioner’s liability for the year 1923 had been rested entirely upon the local law. * * * The supervening decision of the state court interpreting that law in direct relation to this trust cannot justly be ignored in the present proceeding so far as it is found that the local law is determinative of any material point in controversy.” [Emphasis supplied.] Now, let us compare the Blair case, supra, with the present case. In the Blair case, the decision relied upon in the plea of res judicata determined that under local law the assignments in question were invalid, and hence that the. income from the trust was taxable to the beneficiary. After that decision, the State courts determined that the assignments were valid, contrary to the decision of the Circuit Court of Appeals. Thereafter, in a suit on taxes for subsequent years, by reason of the new situation created by the state court decision, the Supreme Court held that the decision in the first case was not res judicata. In the present case the first decision determined that the District Court was without jurisdiction over proceedings brought under the unconstitutional Act. After our decision, the new statute was enacted, which has been declared constitutional by the United States Supreme Court. It follows, by the clearest reason, that if a decision of a state court declaring valid certain assignments which had been considered invalid by the Circuit Court of Appeals in arriving at its decision in the Blair case, supra, creates a “new situation” sufficient to justify the denial of the plea of res judicata, on like principles the enactment of a new and different statute and a decision by the highest Court of our Country declaring the same to be constitutional, will create a “new situation” sufficient to justify the denial of the plea in this case. Jurisdiction of the Court under the Statute Appellants argue that: “Seventh Proposition: By the terms of the statute the court was without jurisdiction”. Since this question attacks the jurisdiction of the court under the terms of the applicable statute, it would seem, in some respects, more orderly to treat of it before we proceed to the treatment of res judicata. W'e have reversed the treatment of the two points because it is necessary in res judicata to treat of the Ashton and Be-kins cases in considerable detail, and with this treatment in mind our treatment of the other point may be more readily understood. The argument of appellants under this point runs somewhat as follows: If the Bekins case did not overrule the Ashton case on the question of Federal power, then it follows that the Supreme Court in the Bekins case must have decided that the District involved was' not a governmental agency. This argument is premised upon- the holding of the Ashton case that since the agency there involved was a state agency, the statute there in question usurped the governmental powers of the State. The Court in the Bekins case held that the second Act did not usurp, the sovereign powers of the State. Appellants then carry their argument- — -since-the District involved in the Bekins case was determined not to be a state agency, then the Ashton case is still the law. The District involved in the principal case is a state agency under California decisions, therefore the Court has no jurisdiction. But appellants’ conclusion is wrong. The Court in the Bekins case did not. premise its decision on the fact that the District involved was not a state agency,, but rather that the Act as drawn did not usurp state powers. Let us quote again from the Bekins decision, 304 U.S. page 51, 58 S.Ct. page 815, 82 L.Ed. 1137, wherein the Court quotes the Committee-on the Judiciary: “ ‘The bill here recommended for passage expressly avoids any restriction on the powers of the States or-their arms of government in the exercise of their sovereign rights and duties. No-interference with the fiscal or governmental affairs of a political subdivision is. permitted. The taxing agency itself is the-only instrumentality which can seek the-benefits of the proposed legislation.. * * ” The Court then states: “We-are of the opinion that the Committee’s, points are well taken and that chapter Kb [§§ 81-84] is a valid enactment. The statute is carefully drawn so as not to impinge, upon the sovereignty of the State. * ” The remainder of the reasoning of the-Court is upon the basis that while state agencies may be immune from taxation by the federal government, still consent of" the state may remove that obstacle; that it follows, therefore, that a state may con-sent to bankruptcy power over its agencies being conferred upon the federal courts. Let us quote further from the Court’s opinion (p. 54 of 304 U.S., page 816 of 58 S.Ct., 82 L.Ed. 1137) : “The bankruptcy power is competent to give relief to debtors in such a plight and, if there is any obstacle to its exercise in the case of the districts organized under state law it lies in the right of the State to oppose federal interference. The State steps in to remove that obstacle. The State acts in aid, and not in derogation, of its sovereign powers. It invites the intervention of the bankruptcy power to save its agency which the State itself is powerless to rescue.” Further, the Supreme Court may have found procedural differences in the two Acts to justify the conclusion that the later Act did not impinge the sovereign rights of the State. Assuming that it did so, we do not deem it within our province to reexamine the procedural aspects of the two Acts to say that the Supreme Court was wrong in its determination that there was a distinction. The premise upon which the Appellants base their entire argument having fallen, there is nothing left to their point. The Bekins case held without question that the Act is constitutional as applied to a California Irrigation District, organized under the same California Statute as the one here involved. That case is binding upon us. State Proceedings as a Bar Appellants assert: “Eighth Proposition: There is another action pending in the state courts of California upon the identical cause of action and demanding the same relief, and that that action was commenced and pending under state law prior to the passing of Chapter X [§§ 81-84] of the Bankruptcy Act upon which this proceeding was prosecuted.” In the appellants’ brief there is a concise analysis of the California Composition Act as codified in Cal.Stat.1937, Chap. 24, p. 92, titled “Irrigation District Refinancing Act.” We quote from the brief: “ * * tjjat act provides that any irrigation district being unable to pay its debts as they mature, such debts may be liquidated, refinanced, or readjusted as 1 herein provided. Such a proceeding is initiated by the Board of Directors of the district who shall adopt a plan. The plan must be concurred in by two-thirds in principal amount of the holders of each class of security affected thereby. The plan shall be presented to the California Districts Securities Commission and if found to be fair and equitable to the creditors the Commission shall approve the same and the board of directors is then authorized to file in the Superior Court in the county in which the district or the major part- thereof is located, a verified petition stating that the district is unable to meet such obligations as they mature; that it desires to effect the plan adopted and that it has been accepted by a sufficient number of creditors and the district desires to avail itself of the act. The Act provides that after the petition is filed the plan shall temporarily be in effect and that the filing of the petition shall automatically enjoin and stay, pending final determination of the proceedings as therein set forth, the commencement or continuance of proceedings or suits against the district or any officer thereof and shall enjoin and stay the enforcement of any lien or the levy of assessments except as is consistent with and in furtherance of the plan and that the Court in which the petition is filed , shall have exclusive jurisdiction * * * with respect to all suits, actions and proceedings against the district on account of the indebtedness affected.” It is then provided for notice of hearing and service upon known holders of bonds affected and at any time prior to the hearing any creditor- may answer; changes or modifications may be made and then the court if it finds the plan to be fair and equitable and that it complies with the provisions of the act and has been accepted in writing by the required number of creditors and the offer and acceptance are in good faith and that the district is authorized to take the necessary action to carry out the plan, shall make an interlocutory judgment approving the plan. This decree does not enforce the plan as against non-consenting creditors. A separate hearing follows in which the rights of non-consenting creditors are determined through the condemnation of the bonds held by the objecting bondholders, etc. under eminent domain. The California Act was passed to become effective in March, 1937. The Federal Bankruptcy Act was amended to in-elude the provision under which the present proceedings were brought in August, 1937. However, at the time of the amendment referred to, the state court proceedings under .the California Act, which are set up in bar to the proceedings before us, were pending. The case'was pending in the state court at the time the bankruptcy amendment had been held constitutional in the Bekins case (April 7, 1938). On March 10, 1938, the Superior Court in which the state composition proceedings were pending, reached a point of decision in the case, and the court was waiting the filing of proposed findings of fact and conclusions of law by the District, in accordance with the California Code of Civil Procedure [C.C.P. § 632], The findings of fact and conclusions of law have never been submitted to the court for approval, and no findings of fact or conclusions of law and no judgment has been filed or entered in the state proceedings. The question then is whether such pendency of an action in the state court on substantially the same matter, is a bar to the federal action. If the state statute and action thereunder are superseded by the federal action, then, of course, there is no bar to the court’s proceeding with the federal action. In Re Watts and Sachs, 190 U.S. 1, 23 S.Ct. 718, 724, 47 L.Ed. 933, there was a state proceeding under Section 1245 of the Revised Statutes of Indiana, Thornton’s Rev.Stat. of 1897, providing that a receiver might be appointed, “When a corporation has been dissolved, or is insolvent, or is in imminent danger of insolvency, or has forfeited its corporate rights.” The Court appointed a receiver to complete old contracts but enter into no new ones. Certain creditors petitioned under the Bankruptcy Act of the United States for proper proceedings in the Federal Court and a receiver was appointed by the judge of that court and was given directions to take possession of the properties involved. He did so. Upon appeal, the court said at page 27 of 190 U.S., at page 724 of 23 S.Ct, 47 L.Ed. 933: “* * * And the operation of the bankruptcy laws of the United States cannot be defeated by insolvent commercial corporations applying to be wound up under state statutes. The bankruptcy law is paramount, and the jurisdiction of the Federal courts in bankruptcy, when -properly invoked, in the administration of the affairs of insolvent persons and corporations, is essentially exclusive. Necessarily, when like proceedings in the state courts are determined by the commencement of proceedings in bankruptcy, care has to be taken to avoid collision in respect of property in possession of the state courts. Such cases are not cases of adverse possession, or of possession in enforcement of pre-existing liens, or in aid of the bankruptcy proceedings. The general rule as between courts of concurrent jurisdiction- is that property already in possession of the receiver of one court cannot rightfully be taken from him without the court’s consent, by the receiver of another court appointed in a subsequent suit; but that rule can have only a qualified application where winding-up proceedings are superseded by those in bankruptcy as to which the jurisdiction is not concurrent.” See also Taylor v. Sternberg, Trustee in Bankruptcy, 293 U.S. 470, 55 S.Ct. 260, 79 L.Ed. 599. It is argued by appellants that the action having been commenced in the state court is not superseded by the Bankruptcy Act, providing composition as is sought in this case. They cite certain authorities as sustaining their contention, among them the following: “Proceedings under State insolvency laws pending at the time of the passage of a bankrupt act are not affected by the latter act.” Note in 45 L. R.A. at page 187. However, the L.R.A. note cited by appellants referred to the original Bankruptcy Act, which contained a provision-expressly saving certain state proceedings. This saving clause has since been-stricken out, and the law as it now stands-is in conformity with the view expressed-by the opinion of In re Watts, supra. See-8 C.J.S. Bankruptcy, § 12, p. 421, wherein it is stated: “The provisions of the-federal Bankruptcy Act are superior to-all state laws upon the subject, and suspend them in so far as they conflict therewith and relate to the same subject matter and affect the same persons. [Citing many cases.]” In Pitcher v. Standish, 90 Conn. 601, 98 A. 93, L.R.A.1917A, 105, it was held that State laws are in conflict with federal, so as to be suspended by the latter when the two cover the same field or the subject matter of the state law is within the purview of the federal legislation. And in the case of Leonard Levin Co. v. Star Jewelry Co., 54 R.I. 465, 175 A. 651, it was held that insolvency law of a state is superseded by Bankruptcy Act, at least in so far as the law relates to the distribution of assets for payment of certain debts. The clarity of these cases and the extent of the un 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_appel1_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 appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). BOWIE v. SORRELL et al. No. 6670. United States Court of Appeals Fourth Circuit. Argued Nov. 17,1953. Decided Dec. 26, 1953. William J.. Gibson and- Bascom S. Pribble, Jr.,. Fredericksburg, Va., for appellant. C. O’Conor Goolrick, Fredericksburg, Va. (Caskie, Frost, Davidson & Watts, Lynchburg, Va., and Goolrick & Ashby, Fredericksburg, Va., on the brief),, for appellees. Before PARKER,' Chief Judge,. DO-BIE, Circuit Judge, and CHESNUT, District Judge.' DOBIE, Circuit Judge. , This civil action to recover damage's for personál injuries" alleged to have been suffered by .plaintiff, Bowie, in an aütóínobilé accident, was instituted in the Circuit Court of Campbéll County, Virginia, and was duly removed to the United States District Court for the Western. District of Virginia. The defendants filed an answer denying liability'and asserting that a settlement had béen made and that Bowie had 'executed a release in full for all claims against the defendants. Bowie- replied to the answer, admitting that he, executed the release, but claimed that it ■was obtained by. “fraud, undue influence, harrassment and misrepresentations on the part of- defendants acting through their agents and servants, who represented to- the plaintiff that $5,000.-00‘ was the maximum he could expect for his injuries; that in the event of .his death, his family would get nothing; that it was to his interest to sign without benefit of consultation with friends or attorneys,- that after signing the alleged release, when too ill to understand ,the extent and without knowledge of his .injuries, he was further hospitalized in ¡the Walter Reed Hospital until October .31, 1952.” Defendants moved the court for a separate trial- on thé issue of the validity of the'release, and asked that on this issue ¡a jury .trial be denied upon the ground that the matter of determining.the validity of an executed release was properly 'cognizable in equity, and therefore plaintiff was not entitled to a jury trial on this issue. A pretrial conference was held, and argument of counsel whs heard 'on the procedural questions' presented, the plaintiff strenuously insisting that he be awarded a single jury trial for the determination of all the issués- in this case. On the question of whether a separate trial upon the issue of the validity of the release should be had, and, whether upon .such separate trial there should be a jury, the District Judge stated , in his .opinion [113 F.Supp. 375] : “As the release'had been obtained by the' adjuster for the insurance company covering the public liability of the defendants, it seemed obvious that, if all issues were.tried at one time with a jury, the fact of the defendants’ insurance coverage' would inevitably be made .known to the jury. In Virginia, it has-been consistently held that evidence as tc insurance coverage is inadmissible and prejudicial to a defendant and the admission of such testimony or argument of counsel disclosing insurance coverage is reversible error. [P.] Lorillard [Co.] v. Clay, 127 Va. 734, 104 S.E. 384; Lanham v. Bond, 157 Va. 167, 160 S.E. 89; Worrell v. Worrell, 174 Va. 11, 4 S.E.2d. 343; Bloxom v. McCoy, 178 Va. 343, 17 S.E.2d 401. Therefore, it seemed clear to me that defendants were entitled tp a .separate trial on the issue of the validity of the release, and it was so ordered. “Upon the question of whether, notwithstanding defendants’ opposition, the plaintiff was entitled to a jury trial on this issue, the situation seemed to be that the trial of this issue was clearly in the nature of an equitable action to set aside and declare invalid an executed instrument. Chesapeake & Ohio Railway Co. v. Mosby, 93 Va. 93, 24 S. E. 916. As the issue would be one ‘not triable of right by a jury’, it seemed to me that I could not properly order a jury trial. It is true that I might have impaneled an advisory jury under the provisions of Rule 39(c), Fed.Rules Civ.Proc. 28 U.S.C.A., but as neither party had requested an advisory jury and I was of the opinion that an advisory jury would not be helpful as the duty of the final determination of the facts would rest upon the court, I denied plaintiff’s demand for a jury, trial, and set the case for trial upon the issue of the validity of the release by the court without á jury.” After an extended hearing the District Judge held: “It is my conclusion that the release executed by plaintiff on January 29, 1952, was voidable when executed, by reason of the mental incapacity of the plaintiff and the constructive fraud of defendant’s agent Reid.” The District Judge held, further, that “plaintiff by his subsequent conduct ratified the settlement and release”. Plaintiff’s action was, accordingly, dismissed, 113 F.Supp. 373. We think the District Judge acted altogether properly in granting a separate trial upon the issue of the validity of the release. Under Rule 42(b) of the Federal Rules of Civil Procedure, the granting of separate trials is within the sound discretion of the trial judge. There was no abuse of this discretion in the instant case. See, Bedser v. Horton Motor Lines, Inc., 122 F.2d 406, 407, opinion by, Circuit Judge Northcott, speaking for our Court. We must hold, though, that plaintiff, Bowie, was entitled to a jury trial on the issue of the validity of the release. We are not impressed by the statement in the brief for defendants: “We do not see how Bowie was prejudiced in any way by a failure to submit the issue of the validity of the release to a jury.” The right to a jury trial in a federal court, in a proper case, is guaranteed by the 7th Amendment to the United States Constitution and has been sedulously guarded by a long line of judicial decisions. See, for example, Jacob v. City of New York, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166; Callen v. Pennsylvania Railway Co., 332 U.S. 625, 68 S.Ct. 296, 92 L.Ed. 242. See, also, Rule 38, Federal Rules of Civil Procedure. In one place in his opinion, the District Judge stated: “In certain particulars, the evidence in this case is conflicting.” At another place, he said: “The matter of the mental capacity of the plaintiff at the time of the execution of the release seems to me to be a very close question.” The case must, therefore, be remanded to the District Court with instructions to grant a jury trial on the question of the validity of the release. ' From the brief for defendants, we quote: ■ “There are a number of cases in Virginia where the validity of releases has been tried with the tort actions by a court and jury, but in none of these eases has the question of a proper forum for passing on the validity of the release been raised. Flowers v. Virginian R. Co., 135 Va. 367, 116 S.E. 672; Northwestern Nat. Ins. Co. v. Cohen, 138 Va. 177, 121 S.E. 507; Stallard v. Atlantic Greyhound Lines, 169 Va. 223, 192 S.E. 800; Provident Life [& Accident] Ins. Co. v. Walker, 190 Va. 1016, 59 S.E.2d 126.” Both the District Judge and defendants rely upon the case of Chesapeake & Ohio. Railway Co. v. Mosby, 93 Va. 93, 24 S.E. 916. In that case, the plaintiff (injured conductor) “instituted this suit in chancery to set aside a release of all claim for damages suffered by him in that accident, on the ground that at the time of executing said release he was mentally incompetent, and that the defendant company took advantage of his incapacity to procuré the release.” Clearly, that was a chancery proceeding seeking an equitable remedy. Here, we have a quite different situation: a common-law suit for damages, a release pleaded as a defense by defendants, and an attack by the plaintiff on the validity of the release, based upon the alleged fraud of the agent of the defendants in procuring the release. Further, any comfort the defendants may find in the Mosby case, is completely taken away by subsequent decisions of the Virginia Supreme Court of Appeals. Thus Kelly, President, stated in Flowers v. Virginian Railway Co., 135 Va. 367, 116 S.E. 672: “The case of C Chesapeake] & 0 [hio] R[ailway] Co. v. Mosby, 93 Va. 93, 24 S.E. 916, cited by counsel for defendant, was a suit in chancery, and the decision was rendered by the chancellor without the intervention of a jury. In the instant case the question (the validity of a release attacked or the score of fraud) was properly referable to the jury”. 135 Vá. at page 382, 116 S.E. at page 677. And, see, also, Ferries Co. v. Brown, 121 Va. 13, 92 S.E. 813; Stallard v. Atlantic Greyhound Lines, 169 Va. 223, 192 S.E. 800; Provident Life & Accident Insurance Co. v. Walker, 190 Va. 1016, 59 S.E.2d 126. The decision in Atlantic Greyhound Lines v. Metz, 4 Cir., 70 F.2d 166, upon which the defendants rely, is not in point here, as in that case a jury trial was actually held. Ross v. Service Lines, Inc., D.C., 31 F.Supp. 871, is directly in point as supporting the contention of defendants, District Judge Lindley, though, made it quite clear in that case: “I consider myself bound to follow the reasoning of the Supreme Court of Illinois”. 31 F.Supp. at page 873. We think that our problem must be solved by federal law, not by the law of the State of Virginia, though we believe that the solution to the problem before us would be the same, whether the State law or the federal law be applied. In the leading case of Enelow v. New York Life Insurance Co., 293 U.S. 379, 384-385, 55 S.Ct. 310, 312, 79 L.Ed. 440, Chief Justice Hughes stated: “The instant case is not one in which there is resort to equity for cancellation of the policy during the life of the insured and no opportunity exists to contest liability at law. Nor is it a case where, although death may have occurred, action has not been brought to recover upon the policy, and equitable relief is sought to protect the insurer against loss of its defense by the expiration of the period after which the policy by its terms is to become incontestable. Here, on the death of the insured, an action at law was brought on the policy, and the defendant had opportunity in that action at law, and before the policy by its terms became incontestable, to contest its liability and accordingly filed its affidavit of defense. That defense was solely that the defendant had been induced to issue the policy by false answers in the application which were alleged to have been made by the applicant ‘with knowledge of their falsity and fraudulently’ in order to obtain the insurance. The affidavit of defense showed nothing whatever as a further ground for equitable relief, and the respondent is necessarily confined to the case it made. In such a case, the defense of fraud is completely available in the action at law, and a bill in equity would not lie to stay proceedings in that action in order to have the defense heard and determined in equity. Phoenix Mut. Life Insurance Co. v. Bailey, 13 Wall. 616, 623, 20 L.Ed. 501; New York Life Insurance Co. v. Bangs, 103 U.S. 780, 782, 26 L.Ed. 608; Cable v. United States Life Ins. Co., 191 U.S. 288, 305, 24 S.Ct. 74, 48 L.Ed. 188; American Mills Co. v. American Surety Co., 260 U.S. 360, 363, 43 S.Ct. 149, 67 L.Ed. 306; New York Life Ins. Co. v. Marshall, 23 F.2d 225; New York Life Ins. Co. v. Miller [8 Cir., 73 F.2d 350, 97 A.L.R. 562], supra. Respondent was in no better position under section 274b.” This seems to us to be controlling. The judgment of the District Court is reversed, and the case is remanded to that Court with instructions to grant a jury trial on the issue of the validity of the release. Reversed and remanded. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
sc_authoritydecision	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. WRIGHT et al. v. COUNCIL OF THE CITY OF EMPORIA et al. No. 70-188. Argued March 1, 1972 Decided June 22, 1972 Stewart, J., delivered the opinion of the Court, in which Douglas, Brennan, White, and Marshall, JJ., joined. Burger, C. J., filed a dissenting opinion, in which Blackmun, Powell, and Rehnquist, JJ., joined, post, p. 471. Samuel W. Tucker argued the cause for petitioners. With him on the brief were Jack Greenberg, James M. Nabrit III, and Norman J. Chachkin. D. Dortch Warriner argued the cause for respondents, With him on the brief was John F. Kay, Jr, Solicitor General Griswold, Assistant Attorney General Norman, and Deputy Solicitor General Wallace filed a memorandum for the United States as amicus curiae urging reversal. Mb. Justice Stewakt delivered the opinion of the Court. We granted certiorari in this case, as in No. 70-130, United States v. Scotland Neck City Board of Education, post, p. 484, to consider the circumstances under which a federal court may enjoin state or local officials from carving out a new school district from an existing district that has not yet completed the process of dismantling a system of enforced racial segregation. We did not address ourselves-to this rather narrow question in Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, and its companion cases decided last Term, but the problem has confronted other federal courts in one form or another on numerous occasions in recent years. Here, as in Scotland Neck, the Court of Appeals, reversed a district court decision, enjoining the. creation of a new schpol district. 442 F. 2d 570. We conclude that the Court of Appeals erred in its interpretation of the legal principles applicable ini cases such as these, and that the District Court’s order was proper in the circumstances of this case. I - The City of Emporia lies near the center of Greens-ville County, Virginia, a largely rural area located on the North Carolina border. Until 1967, Emporia was a “town” under Virginia law, which meant that it was a part of .the surrounding county for practically all purposes, including the purpose of providing public education for children residing in the county. In 1967, Emporia, apparently dissatisfied with the county’s allocation of revenues from the newly enacted state sales tax, successfully sought designation as a “city of the second class.” As such, it became politically independent from, the surrounding county, and undertook a separate obligation under state law to provide free public schooling to children residing within its borders. To fulfill this responsibility, Emporia at first sought the county’s agreement to continue operating the school system on virtually the same basis as before, with Emporia sharing in the administration as well as the financing of the schools. When the county officials refused to enter into an arrangement of- this kind, Em-poria agréed to a contract whereby the county , would continue to educate students residing in. the city in exchange for Emporia’s payment of a specified- share of the total cost of the system. Under this agreement, signed in April 1968, Emporia had a formal voice in the administration of the schools only through its participation in the selection of a superintendent. . The city and county were designated as a single school “division” by the State Board of Education, and this arrangement was still in effect at the time of the District Court’s order challenged in this case. This lawsuit began in 1965, when a complaint was filed on behalf of Negro children seeking an end to state-enforced racial segregation in the Greensville County school system. Prior to 1965, the elementary and high. schools located in Emporia served all white children in the county, while Negro children throughout the county were assigned to a single high school or one of four elementary schools, all but one of which were located outside the Emporia town boundary. In January 1966, the District Court approved a so-called “freedom of choice” plan that had been adopted by the county in April of the previous year. Wright v. School Board of Greensville County, 252 F. Supp. 378. No white students ever attended the Negro schools under this plan, and in the 1968-1969 school year only 98 of the county’s 2,510 Negro students attended white schools. The school faculties remained completely segregated. Following our decision in Green v. County School Board, 391 U. S. 430, holding that a freedom-of-choice plan was an unacceptable method of desegregation where it failed “to provide meaningful. assurance of prompt and effective disestablishment of a dual system,” id., at 438, the petitioners filed a motion for further relief. The District Court ordered the county to demonstrate its compliance with the holding in Green, or to submit a plan designed to bring the schools into compliance. After various delays, during which the freedom-of-choice sys-tern remained in effect, the county submitted two alternative plans. The first would have preserved the existing system with slight modifications, arid the second would have assigned students to schools on the basis of curricular choices or standardized test, scores. The District Court promptly rejected the first of these proposals, and took the second under advisement. Meanwhile, the petitioners submitted their own proposal, under which all children enrolled in a particular grade level would be as- , signed to the same school, thus eliminating any possibility ■ of racial bias in pupil assignments. Following an eviden-tiary hearing on June 23, Í969, the District Court rejected the county’s alternative, plan, finding that it would “substitute . . . one segregated school system for another segregated school system.” . By an order dated June 25, the court ordered the county to implement the plan submitted by the petitioners, referred to by the parties as the “pairing” plan, as of the start of the 1969-^-1970 school year. ' Two weeks after the District Court entered its decree, the Emporia City Council sent a letter to the county Board of Supervisors announcing the city’s intention to operate a separate school system beginning in September. The letter stated that an “in-depth study and analysis of the directed school arrangement reflects a totally .unacceptable situation to the Citizens and City Council of the City of Emporia.” It asked that thé 1968 city-county agreement be terminated by mutual consent, and that title to school property located within Emporia be transferred tó' the city. The letter further advised that children residing in the county would be permitted to enroll in the city schools on a tuition . basis. At no time during this period did the city officials meet with the County council or school board ..to discuss the implementation of the pairing decree, nor did they inform the District Court of their intentions with respect to the separate school system. The county school board refused either to terminate the existing agreement or to transfer school buildings, to Emporia, citing its belief that Emporia’s proposed action was “not in the best interest of the children in Greensville County.” The City Council and the City School Board nevertheless continued to take steps toward implementing the separate system throughout the month of July. Notices were circulated inviting parents to register their children in the city system, and a-request was made to the State Board of Education to certify Emporia as a separate school division. This request was tabled, by the State Board- at its August meeting, “in light of matters pending in the federal court.” According to figures later supplied to the District Court, there were 3,759 children enrolled, in the unitary system contemplated by the desegregation decree, of whom 66% were Negro and 34% were white. Had Emporia established a separate school system, 1^123 of these stüdents would have attended the city schools, of whom 48% were white. It is undisputed that the city proposed to operate its own schools on a unitary basis, with all children enrolled in any particular gradé attending: the same school. On August 1, 1969, the petitioners filed a supplemental complaint naming the members of the Emporia City Council and the City School Board as additional parties defendant, and seeking to enjoin them from withdrawing Emporia children from the county schools. At the conclusion of a hearing on August 8, the District Court found that the. establishment of a separate school - system by the city would constitute “an impermissible interference, with and frustration of” its order of June 25, and preliminarily enjoined the respondents from taking “any.action which would interfere in any manner whatsoever with the implementation of the Court’s order heretofore entered. ...” The schools opened in September under the páiring order, while Emporia continued to work' out detailed plans and budget estimates for a separate, school system in the hope that the District Court would allow its implementation during the following school year. At a further hearing in December, the ■ respondents presented an expert witness to testify as to the educational advantages of the proposed city system, and asked that the preliminary injunction be dissolved. On March 2, 1970, the District Court entered a. memorandum opinion and order denying the respondents’ motion and making the injunction permanent. 309 F. Supp. 671. The Court of Appeals for the Fourth Circuit reversed, 442 F. 2d 570, but stayed its marídate pending action by this Court on a petition for certiorari, which we granted. 404 U. S. 82Ó. . o II Emporia takes the position’that since it is a separate political jurisdiction entitled under state law to establish a school system independent of the county, its action may be enjoined only upon a finding either that the state law under which it acted is invalid, that the boundaries of the . city are drawn so as to exclude Negroes, or that thé disparity of the racial balance of the city and county schools of itself violates the Constitution. As we read its opinion, the District. Court made no such findings; nor do we. . The constitutional violation that formed the predicate for the District Court’s action was the enforcement until 1969 of racial segregation in a public school system of which Emporia had always been a part. That finding has not been challenged, nor has Emporia questioned the propriety of the “pairing” order of June 25, 1969, which was designed to remedy the condition that offended the Constitution. Both before and after it became a city, Emporia educated its children in the county schools. Only when it became clear — 15 years after our decision in Brown v. Board of Education, 347 U. S. 483 — that segregation in the county system was finally to be abolished, did Emporia attempt to take its children out of the county system. Under these circumstances, the power of the District Court to enjoin Emporia’s withdrawal from that system need not rest, upon an independent constitutional violation. The court’s remedial power was invoked on the basis of a finding that the dual school system violated the Constitution, and since the city and the county constituted but one unit for the purpose of student assignments during the entire time that the dual system was maintained, they were properly treated as a single unit for the purpose of dismantling that system. In Green v. County School Board, 391 U. S. 430, the issue was whether the school board’s adoption of a “freedom of choice” plan constituted adequate compliance with the mandate of Brown v. Board of Education, 349 U. S. 294 (Brown II). We did not hold that a freedom-of-choice plan is of itself unconstitutional. Rather, we decided that any plan is “unacceptable” where it “fails to provide meaningful assurance of prompt and effective disestablishment of a dual system. . . .” 391 U. S., at 438. In Monroe v. Board of Commissioners, 391 U. S. 450, we applied the same principle in rejecting a “free transfer” plan adopted by the school board as a method of desegregation: “We do not hold that ‘free transfer’ can have no place in a desegregation plan. But like ‘freedom of choice,’ if it cannot be shown that such a plan will further rather than delay conversion to a unitary, nonracial, nondiscriminatory school system, it must be held unacceptable.” Id., at 459. The effect of Emporia’s proposal was to erect new boundary lines for the purpose of school attendance in a district where no such lines had previously existed, and where a dual school system had long flourished. Under the principles of Green and Monroe, such a proposal must be judged according to whether it hinders or furthers the process of school desegregation. If the proposal would impede the dismantling of the dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out. The Court of Appeals apparently did not believe this case to be governed by the principles of Green and Monroe, It held that the question whether new school district boundaries should be permitted in areas with a history of state-enforced racial segregation is to be resolved in terms of the “dominant purpose of [the] boundary realignment.” “If the creation of a new school district is designed . to further the aim of providing quality education and is attended secondarily by a modification of the racial balance, short of resegregation, the federal courts should not interfere. If, however, the primary purpose for creating a new school district is to retain as much of separation of the races as possible, the state has violated its affirmative constitutional duty to end state supported school segregation.” 442 F. 2d, at 572. Although the District Court had found that “in a sense, race was a factor in the city’s decision to secede,” 309 F. Supp., at 680, the Court of Appeals found that the primary purpose of Emporia’s action was “benign,” and was not “merely a cover-up” for racial discrimination. 442 F. 2d, at 574. This “dominant purpose” test finds no precedent in our decisions. It is true that where an action by school authorities is motivated by a demonstrated discriminatory purpose, the existence of that purpose may add to the discriminatory effect of the action by intensify^ ing the stigma of implied racial inferiority. And where a school board offers nonracial justifications for a plan that is less effective than other alternatives for dismantling a dual school system, a demonstrated racial purpose may be taken into consideration in determining the weight to be given to the proffered justification. Cf. Green, supra, at 439. But as we said in Palmer v. Thompson, 403 U. S. 217, 225, it “is difficult or impossible for any court to determine.the ‘sole’ or ‘dominant’ motivation behind the choices of a group of legislators,” and the same, may be said of the choices of a school board. In addition, an inquiry into the “dominant” motivation of school authorities is as irrelevant as it is fruitless. The mandate of Brown II was to desegregate schools, and we have said that “[t]he measure of any desegregation plan is its effectiveness.” Davis v. School Commissioners of Mobile County, 402 U. S. 33, 37. Thus, we have focused upon the effect — not the purposé or motivation — of a school board’s action in determining whether it is a permissible method of dismantling a dual system. The existence of a permissible purpose cannot süstain an action that has an impermissible effect. The reasoning of the Court of Appeals in this case is at odds with that of other federal courts that have held that splinter school districts may not be created “where the effect — to say nothing of the purpose: — of-the secession has a substantial adverse effect on desegregation of the county school district.” Lee v. Macon County Board of Education, 448 F. 2d 746, 752. See also Stout v. Jefferson County Board of Education, 448 F. 2d 403, 404; Haney v. County Board of Education, 410 F. 2d 920, 924; Burleson v. County Board of Election Commissioners, 308 F. Supp. 352, 356,. aff’d, 432 F. 2d 1356; Aytch v. Mitchell, 320 F. Supp. 1372, 1377. Though the purpose of- the new school districts was .found to be discriminatory in many of these cases, the courts’ holdings rested not on motivation or purpose, but on- the effect of the action upon the dismantling of the dual school, systems involved. That was the focus of the District Court in this case, and we hold that its approach was proper. in The basis for the District Court’s ruling was its conclusion that if Emporia were allowed to establish an independent system, Negroes remaining in the county schools would be deprived of what Brown II promised them: a school system in which all vestiges of enforced racial segregation have been eliminated. The District Court noted that the effect of-. Emporia’s withdrawal would be a “substantial increase in the proportion of whites in the schools attended by city residents, and a concomitant decrease in the county schools.” 309 F. Supp., at 680. In addition, the court found that the departure of the city’s students, its leadership, and its financial support, together with the possible loss of teachers to the new system, would diminish the chances that transition to unitary schools in the county would prove “successful.” Certainly, desegregation is, not achieved by splitting a single school system operating “white schools” and “Negro schools” into two new systems, each opérating unitary schools within its borders, where one of the two new systems is, in fact, “white” and the other is, in fact, “Negro.” Nor does a court supervising the process of desegregation exercise its remedial discretion responsibly where it approves a plan that, in the hope of providing better “quality education” to , some children, has a substantial adverse effect upon the quality of education available to others. In some cases, it may be readily perceived that a proposed subdivision of a school district will produce one or both of these results. In other cases, the likelihood of such results may be less apparent. ’ This case is of the latter kind, but an examination of the record shows that the District Court’s conclusions were adequately supported by the evidence. Data submitted lo the District Court at its December hearing showed that the school system in operation under the “pairing” plan, including both Emporia and the county, had a racial composition of 34% white and 66% Negro. If Emporia had established its own system, and if total enrollment had remained the same, the city's schools would have been 48% white and 52% Negro, while the county's schools would have been 28% white and 72% Negro. We need not and do not hold that this disparity in the racial composition of the two systems would be a sufficient reason, standing alone, to enjoin the creation of the separate school district. The fact that a school board's desegregation plan leaves some disparity in racial balance among various schools in the system does not ' alone make that plan unacceptable. We observed in Swann,, supra, that “[t] he. constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the.school system as a whole.” 402 U. S., at' 24. But there is more to this case, than the disparity in racial percentages reflected by the figures supplied by the school board. In the first place, the District Court found that if Emporia were allowed to withdraw from the existing system, it “may be anticipated that the proportion of whites in- county schools may drop as those who can register in private academies,” 309 F. Supp., at 680, while some whites might return to the city schools from the private schools in which they had previously enrolled. Thus, in the judgment of the District Court, the statistical breakdown of the 1969-1970 enrollment figures between city residents and county residénts did not reflect what the situation would have been had Emporia established its own school system. Sécond, the significance of any racial disparity in this case is enhanced by the fact that the two formerly all-white schools are located within Emporia, while all the schools located in the-surrounding county were formerly all-Negro. The record further reflects, that the school buildings in Emporia are better equipped and are located on better sites than are those in the county. We noted in Swann that factors such as these may in themselves indicate that enforced racial segregation has been perpetuated: “Independent of student assignment, where it is possible to identify a ‘white ■ school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown.” 402 U. S., at 18. Just as racial balance is not required. in remedying a dual system, neither are racial ratios the sole consideration to be taken into account in devising a workable remedy. The timing of Emporia’s action is a third factor that was properly taken into account by the District Court in assessing the effect of the action upon children remaining in the county schools. While Emporia had long had the right under state law to establish a separate school system, its decision to do so came only upon the basis of — and, as the city officials conceded, in reaction to — a court order that prevented the county system from maintaining any longer the segregated system that had lingered for 15 years after Brown I. In the words of Judge Winter,, dissenting in the Court of Appeals, “[i]f the establishment of an Emporia school district is riot enjoined, the black students in the county will watch as nearly one-half the total number of white students in the county abandon the. county schools for a substantially whiter system.” 442 F. 2d, at 590; The message of this action, coming when it did, cannot have escaped the Negro children in the county. As we noted in Brown I: “To separate [Negro school children] from others of • similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” 347 U. S., at 494. We think that, under the circumstances, the District Court could rationally have concluded that the same adverse psychological effect was likely to result from Emporia’s withdrawal Of .its children from the Greensville County system. The weighing of these factors to determine their effect upon the process of desegregation is a delicate task that is aided by a. sensitivity to local conditions, and the judgment is primarily the responsibility of the district judge. See Brown II, supra, at 299. ' Given the totality of the circumstances, we hold that the District Court was justified in its conclusion that Emporia’s establishment of a separate system would actually impede the process of dismantling the existing dual system. IV Against these considerations,.Emporia advances arguments that a separate system is- necessary to achieve “quality education” - for city residents, and that it is unfair in any event to force the city to continue to send its children to schools over which the city, because of the character of its arrangement with the -county, has very little control. These arguments are entitled to consideration by a court exercising its equitable discretion where they are directed to the feasibility or practicality of the proposed remedy. See Swann v. Charlotte-Mecklenburg Board of Education, supra, at 31. But, as we said in .Green v. County School Board, supra, the availability of “more promising courses of action” to dismantle a dual system “at the least . . . places a heavy burden upon the board to explain its preference for an apparently less effective method.” 391 U. S., at 439. In evaluating Emporia’s claims, it must be remembered that the city represents the interests of less than one-third of the students in the system being desegregated. Only the city officials argue that their plan is preferable to the “pairing” plan encompassing the whole of the city-county system. Although the county school board took no position in the District Court either for or against Emporia’s action, it had previously adopted a resolution stating its belief that the city’s action was not in the best interests of the county children.- In terms of Green, it was only the respondents — -not the county school board — who expressed a “preference for an apparently less effective method” of desegregation. At the final hearing in the District Court, the respondents presented detailed budgetary proposals and other evidence demonstrating that they contemplated a more diverse and more expensive educational program than that to which the city children had been accustomed in the Greensville County schools. These plans for the city system were developed after the preliminary injunction was issued in this case. In'. August 1969, one month before classes were scheduled to open, the city officials were intent Upon operating a- separate system despite the fact that the city had no buildings under lease, no teachers under contract, and no specific plans for the operation of the schools. Thus, the persuasiveness of the “quality education”, rationale was open to question. More important, however, any increased quality of education provided to city students would, under the circumstances found by the District Court, have been purchased only at the price of a substantial adverse effect upon the viability of the county system. Tfye District Court, with its responsibility to provide an effective remedy for segregation in the entire cffy-county system, could not properly allow the city to make its part of that system more attractive where such a result would be accomplished at the expense of the children remaining in the county. A moré weighty consideration put forth by Emporia is its lack of formal control over' the school system under the terms of its contract with the county. This argument is properly addressed to the practicality of the District Court’s action. As we said in Davis v. School Commissioners of Mobile County, 402 U. S., at 37: “Having once found a violation, the- district judge or school authorities should make every effort to achieve the greatest possible degree of actual de- . segregation, taking into account the practicalities of the situation.” And in Swann, supra, we noted that a desegregation plan cannot be regarded as a proper exercise of a district .court’s discretion where it is not “reasonable, fea- . sible and workable.” 402 U. S., at 31. We do not underestimate the deficiencies, from Em-poria’s standpoint, in the arrangement by which it undertook in 1968 to provide for the education of its children. Direct control over decisions vitally affecting the education of one’s children- is a need that is strongly felt in our society, and since 1967 the citizens of Em-poria have hacl little of that control. But Emporia did find its'arrangement with the county both feasible and practical up until the time of the desegregation decree issued in the summer of 1969. While city officials testified that they were dissatisfied with the terms of the contract prior to that time, they did not attempt to change it. -They argued that the arrangement became intolerable when the “pairing” decree was entered, because the county officials who would control the budget of the unitary system lacked the desire to make the unitary system work. The District Court did not accept, the contention that a lack of enthusiasm on the part of county leaders would, if Emporia children, remained in the system, block a successful transition to unitary schools. The court felt that the “desire of the city leaders, coupled with their obvious leadership ability,” would make itself felt despite the absence, of any formal control by the city over the system’s budget and operation, and that the city’s leadership would be “an important facet in the successful operation of any court-ordered plan.” 309 F. Supp., at 679. Under these, circumstances, we cannot say that the enforced continuation of the single city-county system was not “reasonable, feasible and workable.” The District Court explicitly noted in its opinion that its injunction does not have the effect of locking Em-poria into its present circumstances for all time. As already noted, oür holding today does not rest upon a conclusion that the disparity in racial balance between the city and county schools resulting from separate systems would, absent any other considerations, be unacceptable. The city’s creation of a separate school system was enjoined because of the effect it would have had at the time upon the' effectiveness of the remedy ordered to dismantle the dual system that had long existed in the area. Once the unitary system has been established and accepted, it may be that Emporia, if .it still desires to do so, may establish an independent system without such an adverse effect upon the students remaining in the county, or it may be able to work out a more satisfactory arrangement with the county for joint operation of the existing system. We hold only that a new school district may not be created where its effect would be to impede the process of dismantling a dual system. And in making that essentially factual determination in any particular case, “we must of necessity rely to a large extent, as this Court has for .more thán 16 years, on the informed judgment of the district courts in the first instance and on courts of appeals.” Swann, supra, at 28. In this case, we believe that the District Court did not. abuse its discretion. For these reasons, the judgment of the Court of Appeals is Reversed. Together with No. 70-187, Cotton v. Scotland Neck City Board of Education. The companion cases were Davis v. Board of School Commissioners, 402 U. S. 33; McDaniel v. Barresi, 402 U. S. 39; Board of Education v. Swann, 402 U. S. 43; and Moore v. Board of Education, 402 U. S. 47. On the same day that it reversed the District Court orders in ’ this case and in the Scotland Neck cases, the Court of Appeals for the Fourth Circuit affirmed an order enjoining the creation of a new school district in another county of North Carolina. Turner v. Littleton-Lake Gaston School District, 442 F. 2d 584. Other cases dealing with attempts to split school districts in the process of desegregation are Lee v. Macon County Board of Education, 448 F. 2d 746; Stout v. Jefferson County Board of Education, 448 F. 2d 403; Haney v. County Board of Education, 410 F. 2d 920; United States v. Texas, 321 F. Supp. 1043, 1052, aff'd, with modifications, 447 F. 2d 441; Burleson v. County Board of Election Commissioners, 308 F. Supp. 352, aff’d, 432 F. 2d 1356; Aytch v. Mitchell, 320 F. Supp. 1372. Va. Code Ann. § 15.1-982. See Va. Code Ann. §22-93; Colonial Heights v. County of Chesterfield, 196 Va. 155, 82 S. E. 2d 566 (1954). Emporia was entitled under state law to establish an independent school system when it became a city in 1967. V ’ ’.it chose not to do so because, according to the testimony of the chairman of the city school board, a separate system did not seem practical at the time. In a letter to the County Board of Supervisors in July 1969, the Emporia City Council stated that it had authorized a combined system in 1968 because it believed that “the educational interest of Emporia citizens, their children and those of the citizens and children of Greensville County, could best be served by continuing a combined City-County school division, thus giving students from both political subdivisions full benefits of a larger school system.” Under Virginia law as it stood in 1969, the school “division” was the basic unit for the purpose of school administration. See Va. Code Ann. §§ 22-30, 22-34, 22-100.1. The plan was later modified in certain respects at the request of the county school board, and as modified it has been in operation since September 1969. Because the four schools located outside Emporia’s city limits are all-in close proximity to the city, the “pairing” plan apparently involved little- additional transportation of students. The District Court took special note of . this transfer arrangement in its memorandum accompanying the preliminary injunction issued in August 1969. At the time of the final hearing, however, the respondents assured' the court that if allowed to operate a separate system, they would not permit transfers from the county without prior permission of the court. Because the county school board had ultimate responsibility for the administration of the schools under the combined system, the members of the Emporia school board were not originally parties to the lawsuit. But the District Court’s desegregation decree bound both county officials “and their successors,” and the District Court treated the Emporia school board members, insofar as they intended to replace the county board as administrators of part of the system under court order, as “successors” to the members of the county board. The decision of the Court of Appeals was rendered less than a month prior to our decision in Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1. The court order that we approved in Swann, supra, itself provided for student bodies ranging from 9% Negro to 38% Negro. “Full implementation, of these constitutional principles may require solution- of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal.” 349 U. S., at 299. City officials testified that one of the primary objections to Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_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. VON BRUNING v. SUTHERLAND, Alien Property Custodian, et al. Court of Appeals of District of Columbia. Submitted October 2, 1928. Decided November 5, 1928. No. 4646. Tench T. Marye, of Washington, D. C., for appellant. Peyton Gordon, Dean Hill Stanley, and Thos. E. Rhodes, all of Washington, D. C., for appellees. Before MARTIN, Chief Justice, and ROBB and VAN" ORSDEL, Associate Justices. MARTIN, Chief Justice. This is án appeal from a final deeree of the lower court, entered upon motion of the appellees, dismissing a bill of complaint filed by appellant, as plaintiff, seeking a recovery against the Alien Property Custodian and the Treasurer of the United States under the provisions of section 9 of the Trading with the Enemy Act (chapter 106, 40 Stat. 411), as amended June 5, 1920 (chapter 241, 41 Stat. 977). It appears from the allegations of the plaintiff’s bill of complaint that plaintiff was a natural-bom citizen of the United States, who prior to April 6, 1917, intermarried with one Adolph von Bruning, a German subject, and thereby acquired and has since retained German citizenship. In the year 1917, and at all times subsequent thereto, plaintiff was the owner of a life estate in a certain house and lot at 1758 N Street N. W., Washington, D. C., and in July, 1918, the Alien Property Custodian, having determined that plaintiff was an alien enemy under the Trading with the Enemy Act, seized the premises, and retained the custody thereof for a period of 28 months; whereupon, in November, 1920, the Custodian returned the property to plaintiff under the amendment to the Trading with the Enemy Act, approved June 5, 1920 (chapter 241, 41 Stat. 977), and again amended (chapter 285, 42 Stat. 1511). It is charged by plaintiff that, during the occupation of the premises by the Custodian, the house, after having been altered for such purposes, was used for departmental offices, or as a bureau by the Custodian, and that thereby the property was damaged. to the extent approximately of $6,000, and was unrepaired when it was returned to plaintiff; also that the rental value of the property during this period was not less than $500 per month, whereas the Custodian fixed the same at $100 per month, and upon the return of the property paid plaintiff $900, and no more, although the property was occupied by the Custodian for the period of 28 months; and that no part of the damages aforesaid, nor of the balance due upon rent, has since been paid by the Custodian. The plaintiff prayed that the court should ascertain and fix the amount due her for the use of the buildings by the Custodian, and'fix the damages sustained by the property as aforesaid, and enter a decree against the Custodian and the Treasurer of the United States therefor. The bill of complaint was met by a motion of defendants praying that it be dismissed on the ground that it sought to recover upon an obligation alleged to be owing to the plaintiff by the- United States, and that the United States had not consented that it or any of its officers might be sued in such case, and also that plaintiff had not stated facts sufficient to entitle her to equitable relief by decree of the lower court under the Trading with the Enemy Act, as amended or otherwise. The lower court sustained this motion, and dismissed the bill. We think this ruling correct. Section 9 (a) of the Trading with the Enemy Act as amended, provides, among other things, that any person, not an enemy or ally of enemy, claiming any interest, right, or title in any property which may have been seized by the Alien Property Custodian and held by him under the act, may institute a suit in equity in the Supreme Court of the District of Columbia, to establish the interest, right, or title so claimed, and, if so established, the court shall order the conveyance or transfer to the claimant of the property so held by the Custodian, or the interest therein to which the court shall determine the claimant to be entitled. This is the only suit authorized by section 9 of the act, and the sole remedy afforded by it is the return of the seized property in proper case to the claimant. In the present suit, however, the plaintiff does not seek the return of the property to her, for concededly that has already been accomplished. The relief sought by her is a judgment for debt and damages for the use of her property and injury to it while it was in the custody of the Custodian. This is an essentially different cause of action, and is not authorized by the act. Such a suit is in effect a suit against the United States, and cannot be sustained without permission first given by the United States. In Banco Mexicano v. Deutsche Bank et al., 53 App. D. C. 266, 289 F. 924, 929, which was a suit against the Custodian for the recovery of money seized by him, this court said: “This is in effect a suit against the United States. The rule is well established that, when the United States permits itself to be sued in its own courts, the terms of the permission must be strictly followed, and the suitor’s cause must come within the Government’s consent.” This statement of the law was affirmed on appeal by the Supreme Court, in Banco Mexicano v. Deutsche Bank, 263 U. S. 591, 602, 44 S. Ct. 209, 212 (68 L. Ed. 465), where the court said: “We are constrained to this because we agree with the Court of Appeals that this suit is in effect a suit against the United States and all of its conditions must obtain.” These provisions are not unconstitutional. In United States v. Chemical Foundation, 272 U. S. 1, 11, 47 S. Ct. 1, 5 (71 L. Ed. 131), the Supreme Court said: “Congress was untrammeled and free to authorize the seizure, use or appropriation of such properties without any compensation to the owners. There is no constitutional prohibition against confiscation of enemy properties.” In our opinion the bill of complaint filed by plaintiff is plainly unmaintainable, for it is in effect a suit against the United States in a court and cause which the United States has not authorized. The decree of the lower court is affirmed, with costs. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_adminactionstate	55	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the state agency associated with the administrative action that occurred prior to the onset of litigation. GREEN et al. v. COUNTY SCHOOL BOARD OF NEW KENT COUNTY et al. No. 695. Argued April 3, 1968. Decided May 27, 1968. Samuel W. Tucker and Jack Greenberg argued the cause for petitioners. With them on the brief were James M. Nabrit III, Henry L. Marsh 111, and Michael Meltsner. Frederick T. Gray argued the cause for respondents. With him on the brief were Robert Y. Button, Attorney-General of Virginia, Robert D. Mcllwaine III, First Assistant Attorney General, and Walter E. Rogers. Louis F. Claiborne argued the cause for the United States, as amicus curiae. With him on the brief were Solicitor General Griswold, Assistant Attorney General Poliak, Lawrence G. Wallace, and Brian K. Landsberg. Joseph B. Robison filed a brief for the American Jewish Congress, as amicus curiae, urging reversal. Mr. Justice Brennan delivered the opinion of the Court. The question for decision is whether, under all the circumstances here, respondent School Board’s adoption of a “freedom-of-choice” plan which allows a pupil to choose his own public school constitutes adequate compliance with the Board’s responsibility “to achieve a system of determining admission to the public schools on a nonracial basis . . . .” Brown v. Board of Education, 349 U. S. 294, 300-301 (Brown II). Petitioners brought this action in March 1965 seeking injunctive relief against respondent’s continued maintenance of an alleged racially segregated school system. New Kent County is a rural county in Eastern Virginia. About one-half of its population of some 4,500 are Negroes. There is no residential segregation in the county; persons of both races reside throughout. The school system has only two schools, the New Kent school on the east side of the county and the George W. Watkins school on the west side. In a memorandum filed May 17, 1966, the District Court found that the “school system serves approximately 1,300 pupils, of which 740 are Negro and 550 are White. The School Board operates one white combined elementary and high school [New Kent], and one Negro combined elementary and high school [George W. Watkins]. There are no attendance zones. Each school serves the entire county.” The record indicates that 21 school buses — 11 serving the Watkins school and 10 serving the New Kent school — travel overlapping routes throughout the county to transport pupils to and from the two schools. The segregated system was initially established and maintained under the compulsion of Virginia constitutional and statutory provisions mandating racial segregation in public education, Va. Const., Art. IX, § 140 (1902); Va. Code § 22-221 (1950). These provisions were held to violate the Federal Constitution in Davis v. County School Board of Prince Edward County, decided with Brown v. Board of Education, 347 U. S. 483, 487 (Brown I). The respondent School Board continued the segregated operation of the system after the Brown decisions, presumably on the authority of several statutes enacted by Virginia in resistance to those decisions. Some of these statutes were held to be unconstitutional on their face or as applied. One statute, the Pupil Placement Act, Va. Code §22-232.1 et seq. (1964), not repealed until 1966, divested local boards of authority to assign children to particular schools and placed that authority in a State Pupil Placement Board. Under that Act children were each year automatically reassigned to the school previously attended unless upon their application the State Board assigned them to another school; students seeking enrollment for the first time were also assigned at the discretion of the State Board. To September 1964, no Negro pupil had applied for admission to the New Kent school under this statute and no white pupil had applied for admission to the Watkins school. The School Board initially sought dismissal of this suit on the ground that petitioners had failed to apply to the State Board for assignment to New Kent school. However on August 2, 1965, five months after the suit was brought, respondent School Board, in order to remain eligible for federal financial aid, adopted a “freedom-of-choice” plan for desegregating the schools. Under that plan, each pupil, except those entering the first and eighth grades, may annually choose between the New Kent and Watkins schools and pupils not making a choice are assigned to the school previously attended; first and eighth grade pupils must affirmatively choose a school. After the plan was filed the District Court denied petitioners’ prayer for an injunction and granted respondent leave to submit an amendment to the plan with respect to employment and assignment of teachers and staff on a racially nondiscriminatory basis. The amendment was duly filed and on June 28, 1966, the District Court approved the “freedom-of-choice” plan as so amended. The Court of Appeals for the Fourth Circuit, en banc, 382 F. 2d 338, affirmed the District Court’s approval of the “freedom-of-choice” provisions of the plan but remanded the case to the District Court for entry of an order regarding faculty “which is much more specific and more comprehensive” and which would incorporate in addition to a “minimal, objective time table” some of the faculty provisions of the decree entered by the Court of Appeals for the Fifth Circuit in United States v. Jefferson County Board of Education, 372 F. 2d 836, aff’d en banc, 380 F. 2d 385 (1967). Judges Sobeloff and Winter concurred with the remand on the teacher issue but otherwise disagreed, expressing the view “that the District Court should be directed . . . also to set up procedures for periodically evaluating the effectiveness of the [Board’s] ‘freedom of choice’ [plan] in the elimination of other features of a segregated school system.” Bowman v. County School Board of Charles City County, 382 F. 2d 326, at 330. We granted certiorari, 389 U. S. 1003. The pattern of separate “white” and “Negro” schools in the New Kent County school system established under compulsion of state laws is precisely the pattern of segregation to which Brown I and Brown II were particularly addressed, and which Brown I declared unconstitutionally denied Negro school children equal protection of the laws. Racial identification of the system’s schools was complete, extending not just to the composition of student bodies at the two schools but to every facet of school operations — faculty, staff, transportation, extracurricular activities and facilities. In short, the State, acting through the local school board and school officials, organized and operated a dual system, part “white” and part “Negro.” It was such dual systems that 14 years ago Brown I held unconstitutional and a year later Brown II held must be abolished; school boards operating such school systems were required by Brown II “to effectuate a transition to a racially nondiscriminatory school system.” 349 U. S., at 301. It is of course true that for the time immediately after Brown II the concern was with making an initial break in a long-established pattern of excluding Negro children from schools attended by white children. The principal focus was on obtaining for those Negro children courageous enough to break with tradition a place in the “white” schools. See, e. g., Cooper v. Aaron, 358 U. S. 1. Under Brown II that immediate goal was only the first step, however. The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about; it was because of the “complexities arising from the transition to a system of public education freed of racial discrimination” that we provided for “all deliberate speed” in the implementation of the principles of Brown I. 349 U. S., at 299-301. Thus we recognized the task would necessarily involve solution of “varied local school problems.” Id., at 299. In referring to the “personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” we also noted that “[t]o effectuate this interest may call for elimination of a variety of obstacles in making the transition . . . .” Id., at 300. Yet we emphasized that the constitutional rights of Negro children required school officials to bear the burden of establishing that additional time to carry out the ruling in an effective manner “is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date.” Ibid. We charged the district courts in their review of particular situations to “consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system.” Id., at 300-301. It is against this background that 13 years after Brown II commanded the abolition of dual systems we must measure the effectiveness of respondent School Board’s “freedom-of-choice” plan to achieve that end. The School Board contends that it has fully discharged its obligation by adopting a plan by which every student, regardless of race, may “freely” choose the school he will attend. The Board attempts to cast the issue in its broadest form by arguing that its “freedom-of-choice” plan may be faulted only by reading the Fourteenth Amendment as universally requiring “compulsory integration,” a reading it insists the wording of the Amendment will not support. But that argument ignores the thrust of Brown II. In the light of the command of that case, what is involved here is the question whether the Board has achieved the “racially nondiscriminatory school system” Brown II held must be effectuated in order to remedy the established unconstitutional deficiencies of its segregated system. In the context of the state-imposed segregated pattern of long standing, the fact that in 1965 the Board opened the doors of the former “white” school to Negro children and of the “Negro” school to white children merely begins, not ends, our inquiry whether the Board has taken steps adequate to abolish its dual, segregated system. Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. See Cooper v. Aaron, supra, at 7; Bradley v. School Board, 382 U. S. 103; cf. Watson v. City of Memphis, 373 TJ. S. 526. The constitutional rights of Negro school children articulated in Brown I permit no less than this; and it was to this end that Brown II commanded school boards to bend their efforts. In determining whether respondent School Board met that command by adopting its “freedom-of-choice” plan, it is relevant that this first step did not come until some 11 years after Brown I was decided and 10 years after Brown II directed the making of a “prompt and reasonable start.” This deliberate perpetuation of the unconstitutional dual system can only have compounded the harm of such a system. Such delays are no longer tolerable, for “the governing constitutional principles no longer bear the imprint of newly enunciated doctrine.” Watson v. City of Memphis, supra, at 529; see Bradley v. School Board, supra; Rogers v. Paul, 382 TJ. S. 198. Moreover, a plan that at this late date fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is also intolerable. “The time for mere ‘deliberate speed’ has run out,” Griffin v. County School Board, 377 U. S. 218, 234; “the context in which we must interpret and apply this language [of Brown II] to plans for desegregation has been significantly altered.” Goss v. Board of Education, 373 U. S. 683, 689. See Calhoun v. Latimer, 377 U. S. 263. The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now. The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives which may be shown as feasible and more promising in their effectiveness. Where the court finds the board to be acting in good faith and the proposed plan to have real prospects for dismantling the state-imposed dual system “at the earliest practicable date,” then the plan may be said to provide effective relief. Of course, the availability to the board of other more promising courses of action may indicate a lack of good faith; and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method. Moreover, whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed. See No. 805, Raney v. Board of Education, post, at 449. We do not hold that “freedom of choice” can have no place in such a plan. We do not hold that a “freedom-of-choice” plan might of itself be unconstitutional, although that argument has been urged upon us. Rather, all we decide today is that in desegregating a dual system a plan utilizing “freedom of choice” is not an end in itself. As Judge Sobeloff has put it, “'Freedom of choice’ is not a sacred talisman; it is only a means to a constitutionally required end — the abolition of the system of segregation and its effects. If the means prove effective, it is acceptable, but if it fails to undo segregation, other means must be used to achieve this end. The school officials have the continuing duty to take whatever action may be necessary to create a ‘unitary, nonracial system.’ ” Bowman v. County School Board, 382 F. 2d 326, 333 (C. A. 4th Cir. 1967) (concurring opinion). Accord, Kemp v. Beasley, 389 F. 2d 178 (C. A. 8th Cir. 1968); United States v. Jefferson County Board of Education, supra. Although the general experience under “freedom of choice” to date has been such as to indicate its ineffectiveness as a tool of desegregation, there may well be instances in which it can serve as an effective device. Where it offers real promise of aiding a desegregation program to effectuate conversion of a state-imposed dual system to a unitary, nonracial system there might be no objection to allowing such a device to prove itself in operation. On the other hand, if there are reasonably available other ways, such for illustration as zoning, promising speedier and more effective conversion to a unitary, nonracial school system, “freedom of choice” must be held unacceptable. The New Kent School Board’s “freedom-of-choice” plan cannot be accepted as a sufficient step to “effectuate a transition” to a unitary system. In three years of operation not a single white child has chosen to attend Watkins school and although 115 Negro children enrolled in New Kent school in 1967 (up from 35 in 1965 and 111 in 1966) 85% of the Negro children in the system still attend the all-Negro Watkins school. In other words, the school system remains a dual system. Rather than further the dismantling of the dual system, the plan has operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board. The Board must be required to formulate a new plan and, in light of other courses which appear open to the Board, such as zoning, fashion steps which promise realistically to convert promptly to a system without a “white” school and a “Negro” school, but just schools. The judgment of the Court of Appeals is vacated insofar as it affirmed the District Court and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered. E. g., Griffin v. County School Board of Prince Edward County, 377 U. S. 218; Green v. School Board of City of Roanoke, 304 F. 2d 118 (C. A. 4th Cir. 1962); Adkins v. School Board of City of Newport News, 148 F. Supp. 430 (D. C. E. D. Va.), aff'd, 246 F. 2d 325 (C. A. 4th Cir. 1957); James v. Almond, 170 F. Supp. 331 (D. C. E. D. Va. 1959); Harrison v. Day, 200 Va. 439, 106 S. E. 2d 636 (1959). Congress, concerned with the lack of progress in school desegregation, included provisions in the Civil Rights Act of 1964 to deal with the problem through various agencies of the Federal Government. 78 Stat. 246, 252, 266, 42 U. S. C. §§ 2000c et seq., 2000d et seq., 2000h-2. In Title VI Congress declared that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. § 2000d. The Department of Health, Education, and Welfare issued regulations covering racial discrimination in federally aided school systems, as directed by 42 U. S. C. § 2000d-l, and in a statement of policies, or “guidelines,” the Department’s Office of Education established standards according to which school systems in the process of desegregation can remain qualified for federal funds. 45 CFR §§ 80.1-80.13, 181.1-181.76 (1967). “Freedom-of-choice” plans are among those considered acceptable, so long as in operation such a plan proves effective. 45 CFR § 181.54. The regulations provide that a school system “subject to a final order of a court of the United States for the desegregation of such school . . . system” with which the system agrees to comply is deemed to be in compliance with the statute and regulations. 45 CFR § 80.4(c). See also 45 CFR §181.6. See generally Dunn, Title VI, the Guidelines and School Desegregation in the South, 53 Va. L. Rev. 42 (1967); Note, 55 Geo. L. J. 325 (1966); Comment, 77 Yale L. J. 321 (1967). This case was decided per curiam on the basis of the opinion in Bowman v. County School Board of Charles City County, 382 F. 2d 326, decided the same day. Certiorari has not been sought for the Bowman case itself. “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.” Louisiana v. United States, 380 U. S. 145, 154. Compare the remedies discussed in, e. g., NLRB v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241; United States v. Crescent Amusement Co., 323 U. S. 173; Standard Oil Co. v. United States, 221 U. S. 1. See also Griffin v. County School Board, 377 U. S. 218, 232-234. The views of the United States Commission on Civil Rights, which we neither adopt nor refuse to adopt, are as follows: “Freedom of choice plans, which have tended to perpetuate racially identifiable schools in the Southern and border States, require affirmative action by both Negro and white parents and pupils before such disestablishment can be achieved. There are a number of factors which have prevented such affirmative action by substantial numbers of parents and pupils of both races: “(a) Fear of retaliation and hostility from the white community continue to deter many Negro families from choosing formerly all-white schools; “(b) During the past school year [1966-1967], as in the previous year, in some areas of the South, Negro families with children attending previously all-white schools under free choice plans were targets of violence, threats of violence and economic reprisal by white persons and Negro children were subjected to harassment by white classmates notwithstanding conscientious efforts by many teachers and principals to prevent such misconduct; “(c) During the past school year, in some areas of the South public officials improperly influenced Negro families to keep their children in Negro schools and excluded Negro children attending formerly all-white schools from official functions; “(d) Poverty deters many Negro families in the South from choosing formerly all-white schools. Some Negro parents are embarrassed to permit their children to attend such schools without suitable clothing. In some districts special fees are assessed for courses which are available only in the white schools; “(e) Improvements in facilities and equipment . . . have been instituted in all-Negro schools in some school districts in a manner that tends to discourage Negroes from selecting white schools.” Southern School Desegregation, 1966-1967, at 88 (1967). See id,., at 45-69; Survey of School Desegregation in the Southern and Border States 1965-1966, at 30-44, 51-52 (U. S. Comm’n on Civil Rights 1966). “In view of the situation found in New Kent County, where there is no residential segregation, the elimination of the dual school system and the establishment of a 'unitary, non-racial system’ could be readily achieved with a minimum of administrative difficulty by means of geographic zoning — simply by assigning students living in the eastern half of the county to the New Kent School and those living in the western half of the county to the Watkins School. Although a geographical formula is not universally appropriate, it is evident that here the Board, by separately busing Negro children across the entire county to the 'Negro’ school, and the white children to the 'white’ school, is deliberately maintaining a segregated system which would vanish with non-racial geographic zoning. The conditions in this county present a classical case for this expedient.” Bowman v. County School Board, supra, n. 3, at 332 (concurring opinion). Petitioners have also suggested that the Board could consolidate the two schools, one site {e. g., Watkins) serving grades 1-7 and the other (e. g., New Kent) serving grades 8-12, this being the grade division respondent makes between elementary and secondary levels. Petitioners contend this would result in a more efficient system by eliminating costly duplication in this relatively small district while at the same time achieving immediate dismantling of the dual system. These are two suggestions the District Court should take into account upon remand, along with any other proposed alternatives and in light of considerations respecting other aspects of the school system such as the matter of faculty and staff desegregation remanded to the court by the Court of Appeals. Question: What is the state of the state agency associated with the administrative action? 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_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. Mark AVRECH, Appellant, v. The SECRETARY OF the NAVY. No. 71-1841. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 5, 1972. Decided March 20, 1973. Dorian Bowman, New York City, and David Rein, Washington, D. C., for appellant. Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Michael A. Katz and James F. McMullin, Asst. U. S. Attys., for appellee. Before Mr. Justice CLARK, and WRIGHT and WILKEY, Circuit Judges. Mr. Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation pursuant to 28 U.S.C. § 294(a) (1970). Mr. Justice CLARK: Appellant, Mark Avrech, brought this suit seeking a declaration that his 1969 court-martial conviction was constitutionally invalid under the First and Fifth Amendments and an order that the conviction be expunged from his military record and that he recover all pay and benefits lost by reason of the conviction. Avrech was convicted of violating Article 134 of of the Uniform Code of Military Justice, known as the “General Article,” which imposes criminal sanctions on “all disorders and neglects to the prejudice of good order and discipline in the armed forces” and “all conduct of a nature to bring discredit upon the armed forces.” More specifically, Avrech was charged with attempting to publish and publishing a statement disloyal to the United States, with design to promote disloyalty and disaffection among the troops. After pleading not guilty, he was acquitted of publishing but found guilty of attempting to publish the statement. He complains that the language of Article 134 is unconstitutionally vague and over-broad under the Fifth Amendment in that the Article did not give him fair notice that his contemplated statement was forbidden; he also urges that his statement was protected free speech under the First Amendment. The District Court upheld his conviction. We reverse on the Fifth Amendment ground. 1. Background of the Prosecution: Avrech enlisted in the Marines in 1967 and was sent to Vietnam in February, 1969, with the rank of private first class. While stationed at Danang and on night duty with the group supply of-, fices, Avrech typed up a stencil criticizing American involvement in Vietnam. It stated: “I’ve been in this country now for 40 days and I still don’t know why I’m here. I’ve heard all the arguments about communist aggression and helping the poor defenseless people. I’ve also heard this three years ago. The entire Vietnamese Army will switch to a pacification role in 1967 and leave major fighting to the American troops. (Statement of South Vietnamese Foreign Minister, L. A. Times, Nov. 18, 1966.) It seems to me that the South Vietnamese people could do a little for the defense of their country. Why should we go out and fight their battles while they sit home and complain about communist aggression. What are we cannon fodder or human beings? If South Vietnam was willing to go it on their own back in 1964 what the hell is the matter with them now? The United States has no business over here. This is a conflict between two different politically minded groups. Not a direct attack on the United States. It’s not worth killing American boys to have Vietnam have free elections. (Former Vice President Richard M. Nixon, L. A. Times, December 31, 1967.) That was our present leader of this country and now he has the chance to do something about the situation and what happens. We have peace talks with North Vietnam and the V.C. That’s just fine and dandy except how many men died in Vietnam the week they argued over the shape of the table? Why does this country think that it can play games with peoples lives and use them to fight their foolish wars, I say foolish because how can you possibly win anything like a war by destroying human lives. Human lives that have no relation at all to the cause of the conflict. Do we dare express our feelings and opinions with the threat of court-martial perpetually hanging over our heads ? Are your opinions worth risking a court-martial? We must strive for peace and if not peace then a complete U.S. withdrawal. We’ve been sitting ducks for too long. ***** SAM ” Sometime thereafter Avrech asked his immediate superior, Corporal William R. Jackson, who was operating the mimeograph machine in their office, to duplicate the statement or permit him to do so. When Jackson inquired as to the content of the stencil, Avrech replied: “If I tell you that you won’t let me run it off.” Jackson then refused. Later Avrech let Jackson read the stencil; the latter reproached Avrech and subsequently turned it over to a superior officer. This prosecution folllowed. Avrech was sentenced to confinement at hard labor for one month, reduction in rank, and forfeiture of pay for three months. The Commanding Officer suspended the confinement but the remainder of the sentence was sustained by the Staff Judge Advocate and the Judge Advocate General of the Navy. On June 26, 1970, Avrech received a bad conduct discharge after a second and unrelated special court-martial conviction for having stolen a camera from the Navy Exchange. The Navy Court of Military Review, in ordering the discharge, took into account Avrech’s conviction here under attack. The District Court granted the Government’s motion for summary judgment, holding that Avrech’s statement was not protected by the First Amendment and that Article 134 provides a sufficiently definite warning as to the proscribed conduct and a sufficiently ascertainable standard of guilt to survive the constitutional vagueness challenge. 2. History and Components of Article 134: We need not pause to detail the history of Article 134. Its antecedents go back to British military sources prior to American Independence. In this country the Constitution entrusted to the Congress the power “to make Rules for the Government and Regulation of the land and naval Forces,” Article I, § 8, Cl. 14. In 1950, pursuant to this grant, the Congress adopted the Uniform Code of Military Justice. Article 134 of the Code includes three clauses which prohibit (1) “all disorders and neglects to the prejudice of good order and discipline in the armed forces;” (2) “all conduct of a nature to bring discredit upon the armed forces;” and, (3) crimes and offenses not capital (this last clause not being here in issue). The General Article is the American version of an older provision of military law known by the British as the “Devil’s Article.” A distinguished commentator and leading authority in the field, William Hough, made no attempt to define the “disorders” proscribed in the Article’s antecedents, only characterizing them as acts that “more usually take place under circumstances unconnected with duty and are esteemed disorderly or insubordinate conduct.” The Practice of Courts-Martial (1825) at 634. Hough’s examples of “disorders” included habitual insubordinate language and conduct at the mess, drunkenness, abusing and striking a sentry on duty, and adultery with the wife of a soldier. Id. at 642. Hough defined “neglect” to mean “neglecting to observe standing orders and regns., or, those orders which are issued and intended to be carried into immediate execution or shortly after.” Id. at 633. His examples of “neglect” included keeping the books in a negligent manner, not reporting infectious diseases to the proper authority, and allowing government goods to be stolen. Id. at 641. The second clause of Article 134, prohibiting “all conduct of a nature to bring discredit upon the armed forces,” was originally enacted for the “single purpose” of subjecting retired enlisted men to court-martial punishment for conduct similar to that proscribed under Article 133 for retired officers. Both clauses have been expanded beyond recognition and now encompass the residue of offenses that have sprung up with what were thought to be the necessities of disciplining the ever-increasing population of the armed forces. While the United States Court of Military Appeals has held that conduct condemned by the General Article must be “directly and palpably — as distinguished from indirectly and remotely —prejudicial to good order and discipline,” United States v. Holiday, 4 USCMA 454, 456 (1954), the Article now encompasses over seventy specific offenses. The listed offenses range from “abusing a public animal” to “disloyalty to the United States” with such offenses as dishonorably failing to pay a debt, straggling, pandering, and assault with intent to commit murder in between. This crazy quilt of offenses is patched together in the Manual for Court-Martial, issued as an Executive Order of the President under Article 36 of the Code, which authorizes the President to prescribe “procedure, including modes of proof, in eases before courts-martial.” The latest manual, promulgated by an Executive Order of the President, is dated June 19, 1969 and known as Manual for Courts-Martial, United States, 1969 (Revised edition). The military forces have “amplified” (to use a word employed in the Government’s brief) the General Article by including in Appendix 6 — Forms for Charges and Specifications — the seventy-odd charges described above. The Executive Order “prescribing” the Manual has saving clauses covering prior investigations, trial after arraignment or other actions begun before its effective date. A further proviso excludes “any act done or omitted prior to the effective date of this manual which was not punishable when done or omitted.” 3. The Theory of the Armed Forces: (1) The Government argues that the Article 134 language here under scrutiny has acquired a core of settled and understandable content through long tradition and the listing of specific offenses in the Manual. United States v. Frantz, 2 USCMA 161 (1953). In the Frantz case the Court of Military Appeals assumed that civilian vagueness standards apply to the military but concluded that the Article had achieved a meaning sufficiently settled and definite to overcome the vagueness claim. The Government also points to Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838, 61 U.S. 65 (1858), holding that a military law provision comparable in scope to the General Article was not subject to abuse because the nature of the proscribed conduct and its punishment were “well known by the practical men in the navy and army.” At 82. And, Winthrop, Military Law and Precedents (2d Edition 1920), in speaking of military custom, includes those service-wide practices which have prevailed for a long period of time and which are “well defined, equitable and uniform in application.” At 42-43. We believe, however, that today Article 134 gives no fair warning of the conduct it proscribes and fails to provide any ascertainable standard of guilt to circumscribe the discretion of the enforcing authorities. Interpretation of the General Article through the Manual to proscribe some seventy explicit offenses, rather than evidencing settled and understandable meaning, indicates just the contrary. For example, not until 1951 did the disloyalty charge prosecuted here become a badge of infamy within reach of the Manual. And even Frantz, supra, did not crystallize the phantom offenses that could be included within Article 134, for we find' the 1969 edition of the Manual continues to expand their number. Indeed, the only apparent purpose of Article 134 is to act as a catch-all for varied types of unforeseen misconduct not otherwise covered by the Code. Though servicemen may be instructed on the meaning and proper applications of Article 134, the Article’s development demonstrates that its coverage has no limits. At most, instruction could only inform servicemen of the specific conduct deemed punishable under the Article in the past and of the fact that comparable misconduct may likewise be punished. And often this would not shed much light on the peculiar facts involved in the act under scrutiny since even conduct listed in the Manual must be found prejudicial to good order and discipline or service discrediting. United States v. Gittens, 8 USCMA 673 (1953). Nor can we approve the practice under Article 134 of judicially creating new offenses by analogizing them to previously recognized offenses under that Article. See Everett, Article 134, Uniform Code of Military Justice — A Study in Vagueness, 37 North Carolina L. Rev. 142, 152-153, 157-158 (1959). For example, the acceptance of money for transporting passengers in a government vehicle, conduct not mentioned in the Manual under Article 134, has been 'analogized to graft and bribery (three year offenses). United States v. Alexander, 3 USCMA 346 (1953). The Supreme Court recently condemned the “punishment by analogy” approach in Papachristou v. City of Jacksonville, 405 U.S. 156, 168-169, 92 S.Ct. 839, 846, 31 L.Ed.2d 110 (1972): “Such crimes [derived by analogy], though long common in Russia, are not compatible with our constitutional system.” Moreover, the old authorities cited bear little weight. Not only has the General Article been expanded beyond recognition, but the greater percentage of our armed forces are today non-career personnel. They are draftees or enlisted personnel with little military experience. Even the “old soldiers” themselves say that the language in Article 134 judged by the void-for-vagueness eases is “unduly indefinite.” Wiener, Are the General Military Articles Unconstitutionally Vague? 54 ABA Journal 357, 363 (1968). Furthermore, the highest of judicial authority in the Army recommends the abolition of Article 134 because “we can't defend our use of it in this modern world. It probably could not withstand a ‘vague and indefinite’ attack in the Supreme Court.” Kenneth J. Hodson (Chief Judge, United States Army Court of Military Review), “Perspective, The Manual for Courts-Martial, 1984,” 57 Military Law Review 1, 12 (1972). These two officers, the former a distinguished constitutional authority as well as a World War II colonel in the Judge Advocate General’s Department, and the latter, himself a renowned former Judge Advocate General as well as the present Chief Judge of the Army’s highest court, speak both impressively and authoritatively. And the opinions of the Military Court of Appeals add more weight to this conclusion. It has held repeatedly that the Manual does not limit or confine Article 134. The Manual is not exhaustive of Article 134 misconduct; its crazy quilt of offenses does not cover Article 134’s bed. See, e.g., United States v. Sadinsky, 14 USCMA 563 (1964). Further, the inclusion of specific conduct in the Manual specifications does not necessarily mean the conduct is punishable under the Article. United States v. Alexander, 12 USCMA 26 (1960). The Court of Military Appeals has held that it is reversible error for the court-martial law officer not to instruct that acts charged under Article 134 must be found either to have prejudiced good order and discipline or have discredited the armed forces, even though the charges against the accused track the language of a Manual specification. United States v. Gittens, supra. In United States v. Smith, 13 USMCA 105, 119 (1962), the Court held that Congress never delegated the power to make substantive rules by way of the Manual and that the Manual was intended merely to serve as a substitute for legal research facilities insofar as it includes rules of substantive law. In the same year the court refused to permit the use of an erroneous instruction on self-defense, though prescribed by the Manual; since it was a matter of substantive law rather than procedure, the Manual did not control. United States v. Acosta-Vargas, 13 USMCA 388. These cases demonstrate it is neither necessary nor sufficient that a serviceman’s conduct fit a Manual specification in order for him to incur criminal liability under Article 134. Nothing could point more accusingly to the vagueness of Article 134 than for the Court of Military Appeals to say that in the final analysis, the Manual is but a mini-digest of the roving character of Article 134, whose vague and indefinite language is absolutely controlling. Clearly the broad net of Article 134 will catch an accused though the Manual does not. (2) Nevertheless, the Government says the clear knowledge of Avrech that his actions might lead to a court-martial shows that he had fair warning that Article 134 prohibited his proposed action. We find the law to the contrary. The fear, if any, which Avrech had that his action might lead to his court-martial does not demonstrate that he knew his actions were covered by Article 134. Nor does it provide a substitute for the Article’s vague and indefinite language. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). There the Court found “it irrelevant that petitioners at one point testified that they had intended to be arrested,” since “the record is silent as to what petitioners intended to be arrested for •x- * Whether a statute affords “fair warning . . . must be made on the basis of the statute itself and the other pertinent law, rather than on the basis of an ad hoc appraisal of the subjective expectations of particular defendants.” At 355-356, n. 5, 84 S.Ct. at 1703-1704. (3) The Government says further that civilian standards of specificity do not apply to the military. We have concluded that they do. Indeed, the Court of Military Appeals assumed in Frantz, supra, that civilian standards applied and found “the conceivable presence of uncertainty” in the first two clauses of Article 134. However, it found that the Article had acquired the “core of a settled and understandable content of meaning” that established standards “well enough known to enable those within . . . [its] reach to correctly apply them.” 2 USMCA at 163. As we have noted, we disagree with this conclusion. Other military courts have also recognized the applicability of civilian vagueness standards. In United States v. Howe, 17 USMCA 165, 178-179 (1967), the Court accepted the application of general Supreme Court standards in civilian cases without indicating any departure from those standards in the name of military necessity. Likewise, we follow the view of the United States Air Force Board of Review in United States v. McLeod, 18 CMR 814 (1954) and the Coast Guard Board of Review in United States v. Barker, 26 CMR 838 (1958). Both applied the requirements of the Fifth Amendment to military courts-martial. It is true that the Supreme Court originally adopted a hands-off policy towards courts-martial. As late as 1950 the Court quoted with approval re Grimley (United States v. Grimley), 137 U.S. 147, 150, 11 S.Ct. 54, 34 L.Ed. 636 (1890), that “the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial . The single inquiry, the test, is jurisdiction.” Hiatt v. Brown, 339 U.S. 103 at 111, 70 S.Ct. 495 at 498, 94 L.Ed. 691 (1950). However, in the same year, in a unanimous opinion by Mr. Justice Douglas, the Court stated that if a court-martial denies a defendant the opportunity to raise a defense then it has no jurisdiction to find guilt. Whelchel v. McDonald, 340 U.S. 122, 124, 71 S.Ct. 146, 95 L.Ed. 141 (1950). Three years later in Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), Chief Justice Vinson in an opinion joined by three other members of the Court, stated that federal courts are empowered to hear a denial of due process by the military, if the latter has refused to hear such claims or has misapplied constitutional requirements. Justices Black and Douglas dissented because they thought the military had misapplied civilian due process standards. Finally, Mr. Justice Black in Reid v. Covert, 354 U.S. 1, 37, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), said the applicability of the Bill of Rights to the military was “as yet . not . . . clearly settled.” And in O’Callahan v. Parker, 395 U.S. 258, 265-266, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) the Court through Mr. Justice Douglas posed the query whether Article 134 satisfies the standards of vagueness developed by civilian courts, but he did not pause to answer. The question, however, seems settled in this Circuit by Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991, 997 (1969), where the court said: “We hold that the test of fairness requires that military rulings on constitutional issues conform to Supreme Court standards, unless it is shown that conditions peculiar to military life require a different rule.” It is true that this proviso excepts from Supreme Court standards those situations where conditions peculiar to military life require a different rule. However, the trial court apparently found no such conditions present in this case since it applied Supreme Court standards. None have been shown here. Moreover, as General Hodson points out, other Articles are available to cover the offenses now punished under the General Article, e.g., Articles 92 and 128, which would serve the military just as well. 57 Military Law Rev., 1, 12. The Government, however, questions the application of Supreme Court standards to military personnel stationed in a combat zone. We readily understand its apprehension, but the argument is beside the point because there are Articles other than Article 134 that fully and satisfactorily govern combat situations. Two Articles, 92 and 99, come to mind. They punish failure to obey any lawful order or regulation and misbehavior before the enemy, respectively. As General Hodson so clearly says: “We don’t really need” Article 134. It is purely and simply a housekeeping device and the specific conduct which it has been held to prohibit can be as effectively controlled through the utilization of other Articles of the Code. It therefore appears to us that there is no valid military justification for suspending the application of the constitutional right of fair warning to Article 134. It follows that the General Article must fall. Reversed. . The jurisdiction of the District Court is not questioned here nor is the existence of a case or controversy. We find botli jurisdiction and justiciability present. . Article 134, General Article, 10 U.S.C. § 934: “Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.” The third clause, referring to crimes and offenses not capital, is not in issue in this case. References in the opinion to Article 134 or the General Article are meant to encompass only the first two clauses. . Maximum punishments under the Uniform Code are fixed in the Manual for Courts-Martial by Executive Order of the President. Article 134 punishments run from 20 years imprisonment and dishonorable discharge for assault with intent to commit murder or rape to one month’s imprisonment and forfeiture of two-thirds of one month’s pay for, e. g., appearing in an unclean uniform. The offense charged here carries a three year maximum sentence. See Table of Maximum Punishments, Manual for Courts-Martial, 1909. . The availability of effective, and we might add, preferable alternatives to punishing disloyal statements under Article 134 is evidenced by the companion cases of United States v. Daniels, 19 USCMA 529 (1970), and United States v. Harvey, 19 USCMA 539 (1970). Harvey indicates that disloyal statements are subject to punishment under 18 U.S.C. 2387 as well as Article 134. Daniels holds that conviction under Sec. 2387 requires “ ‘a clear and present danger that the activities in question will bring about the substantivo evils’ delineated in the statute [insubordination, mutiny, refusal of duty, etc.]” In contrast, Article 134 merely requires a finding that the statement was prejudicial to good order and discipline or service discrediting. In view of the Harvey court’s recognition of the vagueness problems involved — i. e., “Words by themselves may not always reveal their character . . . The Vietnam war has evolved a vast outpouring of written and oral comment. The language of many of the comments is poised on a thin line between rhetoric and disloyalty to the United States.” (at 544) — we doubt the military would consider itself prejudiced if forced to rely on Sec. 2387, incorporating as it does a “clear and present danger” test. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_district	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL NO. 825, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Respondent, Burns and Roe, Inc., and White Construction Company, Intervenors. No. 17180. United States Court of Appeals Third Circuit. Argued Dec. 5, 1968. Decided April 25, 1969. Fred R. Kimmel, N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Daniel H. Jacoby, Attys., N. L. R. B., on the brief), for petitioner. Earl S. Aronson, Newark, N. J. (Thomas E. Durkin, Jr., Newark, N. J., on the brief), for respondent. Vincent J. Apruzzese, Apruzzese & McDermott, Newark, N. J., for inter-venors. Before HASTIE, Chief Judge, and KALODNER, Circuit Judge. OPINION OF THE COURT HASTIE, Chief Judge. This case is before us on a petition of the National Labor Relations Board for enforcement of a cease and desist order based upon the Board’s finding that the respondent, Local 825, International Union of Operating Engineers, violated section 8(b) (4) (D) of the National Labor Relations Act, 29 U.S.C. § 158(b) (4) (D), by coercing White Construction Co., an employer, with the object of compelling White to assign the starting and stopping of an electric welding machine to operating engineers represented by Local 825 rather than to the iron-workers who used the machine and were represented by Ironworkers Local 350. The Board also found that in connection with the same controversy Local 825 had violated section 8(b) (4) (B) of the Act by conduct in the nature of a secondary boycott against other employers in an effort to - compel them to cease doing business with White. This conduct also was interdicted by the cease and desist order. The Board’s factual findings relevant to the alleged section 8(b) (4) (D) violation are adequately supported by the record. It appears that White undertook as a subcontractor to construct the reactor building for a projected nuclear power plant. In the course of the job White assigned to its ironworker employees the work of starting and stopping an electric welding machine that they used in welding structural steel. At that time White had no contract with Local 825 though White’s work force included two members of that union, an engineer and an oiler wlm operated a crane. At this juncture a representative of Local 825 demanded that White employ a member of that Union to push the buttons that started and stopped the welding machine. When White failed to comply and to sign an agreement giving Local 825 jurisdiction that would include electric welding machines, the crane engineer and oiler stopped work for one day. More prolonged work stoppages by the engineers occurred during the ensuing weeks. The Board found the union responsible for these work stoppages and the record fully supports that conclusion. Both Local 825 and the Ironworkers’ Union were obligated by contract with the Building Trades Employers’ Association to recognize the jurisdiction of the National Joint Board for the Settlement of Jurisdictional Disputes and “to be bound by all decisions and awards” made by that body in exercise of its agreed jurisdiction. Accordingly, the matter of the work claimed by Local 825 in connection with the use of electric welding equipment was referred to the Joint Board. That Board issued an award confirming White’s assignment of the work in question to the ironworkers. Although in its answer to the complaint in this case Local 825 admitted that it was bound, as its contract with the Employers’ Association provided, by the award of the Joint Board, it refused to respect the award when it was made. Rather, it persisted in its demand that the disputed work be assigned to operating engineers and in its coercive tactics to enforce that demand. This unfair labor practice proceeding followed. The union asserts two principal defenses; first, that there was no such claim by the ironworkers to the work in question as would create a jurisdictional dispute; and second, that the present unfair labor practice decision is invalid because it was not preceded by and grounded upon a Board award of the claimed work to a particular craft in a section 10 (k) proceeding, 29 U.S.C. § 160(k). The contention that there were no conflicting claims creating a jurisdictional dispute is without merit. The employer’s original assignment of iron-workers to start and stop the electric welding machines they were to use may well have been made routinely without any demand by those employees or their union. However, they did accept this work as an incident of their job. This entire dispute grows out of that work assignment and its acceptance. More important, the Ironworkers Union and the Union of Operating Engineers were opposing parties in the ensuing proceeding before the Joint Board to determine which craft should perform the work in question. The Iron-workers prevailed, thereby establishing their right to the work under the procedure agreed to by all of the parties. Thereafter, ironworkers performed the work as a matter of established right. And they have not disclaimed that right. In these circumstances, it is specious to argue that the persisting demand of the ■operating engineers that the work be assigned to them does not create a jurisdictional dispute. Cf. N. L. R. B. v. Local 1291, International Longshoremen’s Ass’n, 3d Cir. 1966, 368 F.2d 107; N. L. R. B. v. Local 25, International Brotherhood of Electrical Workers, 2d Cir. 1967, 383 F.2d 449. “The fact that one union has the jobs and holds on to them in a polite, non-belligerent manner while the other union uses the forbidden tactics in an effort to get them, or some of them, does not mean that what Congress regarded as the evils of a jurisdictional dispute are not present.” International Brotherhood of Carpenters v. C. J. Montag & Sons, Inc., 9th Cir. 1964, 335 F.2d 216, 221. The respondent’s second contention is that this unfair labor practice proceeding is premature because the Board did not first utilize a proceeding under section 10 (k) of the Act to make a decisive award of the work to one craft or the other. In most cases a Board award under section 10 (k) and a refusal to abide by that award must precede an unfair labor practice proceeding based on a jurisdictional dispute. N. L. R. B. v. Radio and Television Broadcast Engineers, Local 1212 (C.B.S.), 1961, 364 U.S. 573, 81 S.Ct. 330, 5 L.Ed.2d 302; N. L. R. B. v. United Ass’n of Journeymen, 3d Cir. 1957, 242 F.2d 722. However, we agree with the Board that in the circumstances of this case a section 10 (k) proceeding was not necessary. That section reads as follows : “Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of Section 8(b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.” It will be observed that the statute expressly provides for the discontinuance of a section 10 (k) proceeding where the parties show that they have “agreed upon methods for the voluntary adjustment of the dispute”. The present parties had agreed in advance upon a method of voluntary adjustment and did in fact utilize that method in this case. We cannot believe that Congress intended to require a section 10 (k) proceeding after a binding voluntary settlement of a dispute when the legislative scheme provides for the discontinuance of a section 10 (k) proceeding if such an adjustment shall occur during its pendency. Wood, Wire and Metal Lathers Union (Acoustical Contractors), 1958, 119 N.L.R.B. 1345, cited with approval, Carey v. Westinghouse Electric Corp., 1964, 375 U.S. 261, 264 n. 4, 84 S.Ct. 401, 11 L.Ed.2d 320. Indeed, in the present circumstances a section 10 (k) proceeding would be a pointless formality. For having agreed to the settlement of jurisdictional disputes by the Joint Board and having experienced an adverse ruling in this case, Local 825 is in no position to challenge the merits of that ruling before another tribunal. Cf. Electrical Workers Local 26 (McCloskey & Co.), 1964, 147 N.L.R.B. 1498. Accordingly, we conclude that a violation of section 8(b) (4) (D) has been properly established. Different issues arise under the charge of secondary boycott in violation of section 8(b) (4) (B). This charge involves contractors additional to White. Burns & Roe, Inc., was the general contractor for the entire nuclear power plant project. It subcontracted all of the construction work and thus had no construction employees. Chicago Bridge & Iron Co. and Poirier & McLane Corp., as well as White, were subcontractors working at the project site. The Board’s conclusion that section 8(b) (4) (B) had been violated was based on findings that the respondent had coerced Burns and its subcontractors other than White in an effort to force Burns to “cease doing business” with White. The record amply justifies the conclusion that these contractors were subjected to coercion in the form of threats or walkouts, or both. The debatable issue is whether the object of this coercion was to force Burns to “cease doing business” with White within the meaning of section 8(b) (4) (B). It was not the Board’s theory, nor does it seem seriously to be contended that the respondent sought to compel Burns to stop using the services of White or to terminate its contract with White. Indeed, such action would not have been advantageous to the respondent. Rather, it is said that the respondent undertook to “disrupt the business relation” between Burns and White so that the contractor would try to induce the subcontractor to comply with the respondent’s demands. The question is whether conduct so intended seeks to compel the one contractor to “cease doing business” with the other within the meaning of section 8(b) (4) (B). We considered a similar situation in N. L. R. B. v. Local 825, International Union of Operating Engineers, 3d Cir. 1964, 326 F.2d 218, and concluded that the finding of a “cease doing business” objective was not warranted. It is now urged that this case is distinguishable from that one because in the earlier case the work stoppages, though to the neutral employer’s detriment, were not attended by any communication of the union with that employer. However, the disruption of the neutral employer’s business activity in connection with the primary employer and the objective of exerting pressure upon the primary employer through the neutral one was essentially the same there as here. Indeed, we quoted but did not approve the Board’s finding: <«* * Even, assuming, arguen-do, that Respondent merely intended by its strike to force Selby and Elm-hurst to require Nichols to change its method of operation, this in itself would have disrupted or seriously curtailed the existing business relationship between Nichols and these two other contractors, which would have been tantamount to causing the latter employers to cease doing business with Nichols.” ’ 326 F.2d at 220. Moreover, in neither case did the union admit a “cease doing business” objective but rather in both cases the circumstances compelled the inference that the union wanted the contractor to use its influence with the subcontractor to change the subcontractor’s conduct, not to terminate their relationship. Accordingly, following our earlier decision, we hold that proof of coercive activity amounting to “disruption of a business relationship” and aimed at causing a neutral employer to put pressure on the primary employer is insufficient, without more, to establish an effort to compel the one employer to “cease doing business” with the other. The language of section 8(b) (4) (B) is apt to prohibit the classical secondary boycott where the attempt is made to coerce the primary employer by compelling others to stop trading or otherwise dealing with him. But we think the “cease doing business” language is not apt to cover the objective proved here, however objectionable or deserving of condemnation it may be. But cf. N. L. R. B. v. Carpenters District Council of New Orleans and Vicinity, AFL-CIO, 5th Cir., 407 F.2d 804, decided February 19, 1969. We think it is for Congress to broaden the language of section 8(b) (4) (B) if it desires to cover such situations as this. Finally, we consider objections of the respondent to the breadth of the Board’s cease and desist order. Paragraph 1(a) of the order restrains violations of section 8(b) (4) (B). That subparagraph will not be enforced because no violation of section 8(b) (4) (B) has been established. An understanding of the controversy concerning the reach of paragraph 1(b) of the order requires quotation of that subparagraph in full. It prohibits the respondent from “(b) Engaging in, or inducing or encouraging any individual employed by White Construction Company, Chicago Bridge & Iron Co., Poirier & McLane Corporation, or any other person engaged in commerce or an industry affecting commerce, to engage in a strike or a refusal in the course of his employment to perform any services; or threatening, coercing, or restraining White Construction Company, Chicago Bridge & Iron Co., Poirier & McLane Corporation, Burns & Roe, Inc., or any other person, where, in either case, an object thereof is to force or require White Construction Company, or any other person engaged on the Oyster Creek, New Jersey, project, to assign any work to employees who are represented by the Respondent, rather than to employees who are represented by another labor organization, except insofar as any such action is permitted under Section 8(b) (4) (D) of the Act.” We read this language as covering any jurisdictional dispute which may arise in connection with the performance of any contract or subcontract on the present nuclear power plant project, so long as the Board has not determined that members of a particular union craft are entitled to the work in question. To enforce this order would mean that, in any such case, the respondent would be guilty of contempt if by any coercive means it should seek a resolution of a jurisdictional dispute in its favor. The vice of this, the respondent argues, is that the union is forced to accept whatever work assignment the employer may make. For, under the scheme of the Act, the Board will not entertain a section 10 (k) proceeding to resolve a jurisdictional dispute unless it has reason to believe that a union is engaging in the very kind of activity which under the Board’s order would be contempt of court. See Local 478, International Union of Operating Engineers, 1968, 172 N.L.R.B. No. 221. We think the union’s argument, whatever validity it might have in some cases, overlooks an important circumstance in this case. The contractors and the labor organizations in the building trades involved in this project have voluntarily agreed to the adjustment and resolution of jurisdictional disputes through resort to and decision by the Joint Board. Just as a contractor took the present dispute to the Joint Board, the respondent is free to take any similar future dispute concerning the assignment of work on the project to the Joint Board. The proposed decree would not in any way interfere with the utilization of that agreed method of settling jurisdictional disputes. Only if any employer should refuse to comply with a Joint Board award might the proposed order’s prohibition of coercive action unfairly restrain the respondent. Accordingly, we think appropriate language should be added at the end of the order to except from its prohibition coercive action aimed at enforcement of a Joint Board decision. Cf. Local 26, International Fur Workers, (Winslow Bro. & Smith Co.), 1950, 90 N.L.R.B. 1379. But, with that minor modification, we conclude that paragraph 1(b) of the Board’s order does not overstep that broad administrative discretion in fashioning appropriate remedies which we have repeatedly recognized. E. g. N. L. R. B. v. Local 542, International Union of Operating Engineers, 3d Cir. 1964, 329 F.2d 512; N. L. R. B. v. Highway Truck Drivers and Helpers, Local No. 107, 3d Cir. 1962, 300 F.2d 317. In reaching this conclusion we have considered the respondent’s persistent disposition to violate the provisions of section 8(b) (4) as demonstrated by the numerous cases in which this court has found it necessary to enforce Board orders against it and at least two cases in which we have found it necessary to invoke our contempt power to obtain the respondent’s compliance with our orders. The order of the Board, modified and restricted in accordance with this opinion, will be affirmed. . Whether this contention should fail here because it was not advanced before the Board, we do not decide. . In an effort to avoid this conclusion the respondent has cited cases in -which a section 10 (k) hearing has been required after some third party has decided that one union rather than the other should be assigned the disputed work. B. g., International Union of Operating Engineers, Local 520 (Biebel Bros.), 1968, 170 N.L. R.B. No. 38; Plasterers Local Union 79, 1967, 167 N.L.R.B. No. 23; Albany Printing Pressmen, 1967, 166 N.L.R.B. No. 71; United Industrial Workers, Seafarers (Albin Stevedore Co.), 1967, 162 N.L.R.B. No. 96. But in none of these cases was the decision of the third parties one by which the parties were bound, whether by contractual agreement or otherwise. . E. g., N.L.R.B. v. Weber, 3d Cir. 1967, 382 F.2d 387; N.L.R.B. v. Local 825, I.U.O.E., 3d Cir. 1964, 326 F.2d 213; N.L.R.B. v. Local 825, I.U.O.E., 3d Cir. 1963, 322 F.2d 478; N.L.R.B. v. Local 825, I.U.O.E., 3d Cir. 1963, 315 F.2d 695. In addition, this court has found it necessary in one case to adjudge Local 825 in contempt for refusal to comply with our decree enforcing a Board order. N.L.R.B. v. Local 825, No. 14,331 Order of June 18, 1964. A second such proceeding is pending at Nos. 17,091 and 17,092. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_respond2_1_3	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second 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. FEAR RANCHES, INC., Appellant, v. H. C. BERRY, d/b/a Berry Ranch Co., et al., Appellees. No. 73-1297. United States Court of Appeals, Tenth Circuit. Sept. 25, 1974. Milton A. Oman, Salt Lake City, Utah, for appellant. Frank H. Allen, Jr., Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, N. M., for appellees, H. C. Berry, d/b/a Berry Ranch Co., and Berry Land and Cattle Co., Inc. Charles C. Spann, Grantham, Spann & Sanchez, Albuquerque, N. M., and Kreh-biel & Alsup,- Clayton, N. M., for appel-lee, Kelly Perschbacker. Before JONES, SETH and DOYLE, Circuit Judges. Of the Fifth Circuit, sitting by designation. SETH, Circuit Judge. An opinion on the first appeal of this case was filed as Fear Ranches, Inc. v. H. C. Berry, et al., 10 Cir., 470 F.2d 905. On the first appeal, all issues were disposed of except as to a point concerning the custom and usage prevailing in New Mexico. On this point the trial judge received evidence but made no finding. The case was remanded for additional findings. These have now been made and the case is before us as No. 73-1297. The trial court on remand, in Supplemental Findings of Fact, found that: “There is a usage of trade in the cattle industry in New Mexico that a knowledgeable buyer, relying entirely on his own judgment, in buying cattle from a knowledgeable seller, who makes no representations as to the condition of the cattle, takes the animals as he selects them and there are no implied warranties of the fitness of the cattle.” This Finding No. 7 excludes any implied warranty of fitness for a particular purpose. The finding of the buyer’s reliance on his own judgment is supported by the record. This self-reliance included the matter of whether or not the cattle were free from disease. This was the only issue remaining after the original opinion. The judgment is affirmed. Question: This question concerns the second 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:
sc_lcdispositiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations BENNIS v. MICHIGAN No. 94-8729. Argued November 29, 1995 Decided March 4, 1996 Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scalia, Thomas, and Ginsburg, JJ., joined. Thomas, J., post, p. 453, and Ginsburg, J., post, p. 457, filed concurring opinions. Stevens, J., filed a dissenting opinion, in which Souter and Breyer, JJ., joined, post, p. 458. Kennedy, J., filed a dissenting opinion, post, p. 472. Stefan B. Herpel argued the cause and filed briefs for petitioner. Larry L. Roberts argued the cause for respondent. With him on the brief were John D. O’Hair and George E. Ward. Richard H. Seamon argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben. Briefs of amici curiae urging reversal were filed for the American Bankers Association by John J. Gill III and Michael F. Crotty; for the Institute for Justice by William H. Mellor III and Clint Bolick; and for the National Association of Criminal Defense Lawyers by E. E. Edwards III and Richard J. Troberman. Richard K. Willard and Robert Teir filed a brief of amicus curiae for the American Alliance for Rights and Responsibilities et al. Chief Justice Rehnquist delivered the opinion of the Court. Petitioner was a joint owner, with her husband, of an automobile in which her husband engaged in sexual activity with a prostitute. A Michigan court ordered the automobile forfeited as a public nuisance, with no offset for her interest, notwithstanding her lack of knowledge of her husband’s activity. We hold that the Michigan court order did not offend the Due Process Clause of the Fourteenth Amendment or the Takings Clause of the Fifth Amendment. Detroit police arrested John Bennis after observing him engaged in a sexual act with a prostitute in the automobile while it was parked on a Detroit city street. Bennis was convicted of gross indecency. The State then sued both Bennis and his wife, petitioner Tina B. Bennis, to have the car declared a public nuisance and abated as such under §§600.3801 and 600.3825 of Michigan’s Compiled Laws. Petitioner defended against the abatement of her interest in the car on the ground that, when she entrusted her husband to use the car, she did not know that he would use it to violate Michigan’s indecency law. The Wayne County Circuit Court rejected this argument, declared the car a public nuisance, and ordered the car’s abatement. In reaching this disposition, the trial court judge recognized the remedial discretion he had under Michigan’s case law. App. 21. He took into account the couple’s ownership of “another automobile,” so they would not be left “without transportation.” Id., at 25. He also mentioned his authority to order the payment of one-half of the sale proceeds, after the deduction of costs, to “the innocent co-title holder.” Id., at 21. He declined to order such a division of sale proceeds in this case because of the age and value of the car (an 11-year-old Pontiac sedan recently purchased by John and Tina Bennis for $600); he commented in this regard: “[T]here’s practically nothing left minus costs in a situation such as this.” Id., at 25. - The Michigan Court of Appeals reversed, holding that regardless of the language of Michigan Compiled Law § 600.3815(2), Michigan Supreme Court precedent interpreting this section prevented the State from abating petitioner’s interest absent proof that she knew to what end the car would be used. Alternatively, the intermediate appellate court ruled that the conduct in question did not qualify as a public nuisance because only one occurrence was shown and there was no evidence of payment for the sexual act. 200 Mich. App. 670, 504 N. W. 2d 731 (1993). The Michigan Supreme Court reversed the Court of Appeals and reinstated the abatement in its entirety. 447 Mich. 719, 527 N. W. 2d 483 (1994). It concluded as a matter of state law that the episode in the Bennis vehicle was an abatable nuisance. Rejecting the Court of Appeals’ interpretation of § 600.3815(2), the court then announced that, in order to abate an owner’s interest in a vehicle, Michigan does not need to prove that the owner knew or agreed that her vehicle would be used in a manner proscribed by § 600.3801 when she entrusted it to another user. Id., at 737, 527 N. W. 2d, at 492. The court next addressed petitioner’s federal constitutional challenges to the State’s abatement scheme: The court assumed that petitioner did not know of or consent to the misuse of the Bennis car, and concluded in light of our decisions in Van Oster v. Kansas, 272 U. S. 465 (1926), and Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974), that Michigan’s failure to provide an innocent-owner defense was “without constitutional consequence.” 447 Mich., at 740-741, 527 N. W. 2d, at 493-494. The Michigan Supreme Court specifically noted that, in its view, an owner’s interest may not be abated when “a vehicle is used without the owner’s consent.” Id., at 742, n. 36, 527 N. W. 2d, at 495, n. 36. Furthermore, the court confirmed the trial court’s description of the nuisance abatement proceeding as an “equitable action,” and considered it “critical” that the trial judge so comprehended the statute. Id., at 742, 527 N. W. 2d, at 495. We granted certiorari in order to determine whether Michigan’s abatement scheme has deprived petitioner of her interest in the forfeited car without due process, in violation of the Fourteenth Amendment, or has taken her interest for public use without compensation, in violation of the Fifth Amendment as incorporated by the Fourteenth Amendment. 515 U. S. 1121 (1995). We affirm. The gravamen of petitioner’s due process claim is not that she was denied notice or an opportunity to contest the abatement of her car; she was accorded both. Cf. United States v. James Daniel Good Real Property, 510 U. S. 43 (1993). Rather, she claims she was entitled to contest the abatement by showing she did not know her husband would use it to violate Michigan’s indecency law. But a long and unbroken line of cases holds that an owner’s interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use. Our earliest opinion to this effect is Justice Story’s opinion for the Court in The Palmyra, 12 Wheat. 1 (1827). The Palmyra, which had been commissioned as a privateer by the King of Spain and had attacked a United States vessel, was captured by a United States warship and brought into Charleston, South Carolina, for adjudication. Id., at 8. On the Government’s appeal from the Circuit Court’s acquittal of the vessel, it was contended by the owner that the vessel could not be forfeited until he was convicted for the priva-teering. The Court rejected this contention, explaining: “The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing.” Id., at 14. In another admiralty forfeiture decision 17 years later, Justice Story wrote for the Court that in in rem admiralty proceedings “the acts of the master and crew . . . bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs.” Harmony v. United States, 2 How. 210, 234 (1844) (emphasis added). In Dobbins’s Distillery v. United States, 96 U. S. 395, 401 (1878), this Court upheld the forfeiture of property used by a lessee in fraudulently avoiding federal alcohol taxes, observing: “Cases often arise where the property of the owner is forfeited on account of the fraud, neglect, or misconduct of those intrusted with its possession, care, and custody, even when the owner is otherwise without fault . . . and it has always been held . . . that the acts of [the possessors] bind the interest of the owner . . . whether he be innocent or guilty.” In Van Oster v. Kansas, 272 U. S. 465 (1926), this Court upheld the forfeiture of a purchaser’s interest in a car misused by the seller. Van Oster purchased an automobile from a dealer but agreed that the dealer might retain possession for use in its business. The dealer allowed an associate to use the automobile, and the associate used it for the illegal transportation of intoxicating liquor. Id., at 465-466. The State brought a forfeiture action pursuant to a Kansas statute, and Van Oster defended on the ground that the transportation of the liquor in the car was without her knowledge or authority. This Court rejected Van Oster’s claim: “It is not unknown or indeed uncommon for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it. Much of the jurisdiction in admiralty, so much of the statute and common law of liens as enables a mere bailee to subject the bailed property to a lien, the power of a vendor of chattels in possession to sell and convey good title to a stranger, are familiar examples____They suggest that certain uses of property may be regarded as so undesirable that the owner surrenders his control at his peril. . . . “It has long been settled that statutory forfeitures of property entrusted by the innocent owner or lienor to another who uses it in violation of the revenue laws of the United States is not a violation of the due process clause of the Fifth Amendment.” Id., at 467-468. The Van Oster Court relied on J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505 (1921), in which the Court upheld the forfeiture of a seller’s interest in a car misused by the purchaser. The automobile was forfeited after the purchaser transported bootleg distilled spirits in it, and the selling dealership lost the title retained as security for unpaid purchase money. Id., at 508-509. The Court discussed the arguments for and against allowing the forfeiture of the interest of an owner who was “without guilt,” id., at 510, and concluded that “whether the reason for [the challenged forfeiture scheme] be artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced,” id., at 511. In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974), the most recent decision on point, the Court reviewed the same cases discussed above, and concluded that “the innocence of the owner of property subject to forfeiture has almost uniformly been rejected as a defense.” Id., at 683.. Petitioner is in the same position as the various owners involved in the forfeiture cases beginning with The Palmyra in 1827. She did not know that her car would be used in an illegal activity that would subject it to forfeiture. But under these cases the Due Process Clause of the Fourteenth Amendment does not protect her interest against forfeiture by the government. Petitioner relies on a passage from Calero-Toledo, that “it would be difficult to reject the constitutional claim of... an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property.” 416 U. S., at 689. But she concedes that this comment was obiter dictum, and “[i]t is to the holdings of our cases, rather than their dicta, that we must attend.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375, 379 (1994). And the holding of Calero-Toledo on this point was that the interest of a yacht rental company in one of its leased yachts could be forfeited because of its use for transportation of controlled substances, even though the company was “ ‘in no way . . . involved in the criminal enterprise carried on by [the] lessee’ and ‘had no knowledge that its property was being used in connection with or in violation of [Puerto Rican Law].’” 416 U. S., at 668. Petitioner has made no showing beyond that here. Justice Stevens’ dissent argues that our cases treat contraband differently from instrumentalities used to convey contraband, like cars: Objects in the former class are forfeit-able “however blameless or unknowing their owners may be,” post, at 459, but with respect to an instrumentality in the latter class, an owner’s innocence is no defense only to the “principal use being made of that property,” post, at 461. However, this Court’s precedent has never made the due process inquiry depend on whether the use for which the instrumentality was forfeited was the principal use. If it had, perhaps cases like Calero-Toledo, in which Justice Douglas noted in dissent that there was no showing that the “yacht had been notoriously used in smuggling drugs ... and so far as we know only one marihuana cigarette was found on the yacht,” 416 U. S., at 693 (opinion dissenting in part), might have been decided differently. The dissent also suggests that The Palmyra line of cases “would justify the confiscation of an ocean liner just because one of its passengers sinned while on board.” Post, at 462. None of pur cases have held that an ocean liner may be confiscated because of the activities of one passenger. We said in Goldsmith-Grant, and we repeat here, that “[w]hen such application shall be made it will be time enough to pronounce upon it.” 254 U. S., at 512. Notwithstanding this well-established authority rejecting the innocent-owner defense, petitioner argues that we should in effect overrule it by importing a culpability requirement from cases having at best a tangential relation to the “innocent owner” doctrine in forfeiture cases. She cites Foucha v. Louisiana, 504 U. S. 71 (1992), for the proposition that a criminal defendant may not be punished for a crime if he is found to be not guilty. She also argues that our holding in Austin v. United States, 509 U. S. 602 (1993), that the Excessive Fines Clause limits the scope of civil forfeiture judgments, “would be difficult to reconcile with any rule allowing truly innocent persons to be punished by civil forfeiture.” Brief for Petitioner 18-19, n. 12. In Foucha the Court held that a defendant found not guilty by reason of insanity in a criminal trial could not be thereafter confined indefinitely by the State without a showing that he was either dangerous or mentally ill. Petitioner argues that our statement that in those circumstances a State has no “punitive interest” which would justify continued detention, 504 U. S., at 80, requires that Michigan demonstrate a punitive interest in depriving her of her interest in the forfeited car. But, putting aside the extent to which a forfeiture proceeding is “punishment” in the first place, Foucha did not purport to discuss, let alone overrule, The Palmyra line of cases. In Austin, the Court held that because “forfeiture serves, at least in part, to punish the owner,” forfeiture proceedings are subject to the limitations of the Eighth Amendment’s prohibition against excessive fines. 509 U. S., at 618. There was no occasion in that case to deal with the validity of the “innocent-owner defense,” other than to point out that if a forfeiture statute allows such a defense, the defense is additional evidence that the statute itself is “punitive” in motive. Id., at 617-618. In this case, however, Michigan’s Supreme Court emphasized with respect to the forfeiture proceeding at issue: “It is not contested that this is an equitable action,” in which the trial judge has discretion to consider “alternatives [to] abating the entire interest in the vehicle.” 447 Mich., at 742, 527 N. W. 2d, at 495. In any event, for the reasons pointed out in Calero-Toledo and Van Oster, forfeiture also serves a deterrent purpose distinct from any punitive purpose. Forfeiture of property prevents illegal uses “both by preventing further illicit use of the [property] and by imposing an economic penalty, thereby rendering illegal behavior unprofitable.” Calero-Toledo, supra, at 687. This deterrent mechanism is hardly unique to forfeiture. For instance, because Michigan also deters dangerous driving by making a motor vehicle owner liable for the negligent operation of the vehicle by a driver who had the owner’s consent to use it, petitioner was also potentially liable for her husband’s use of the car in violation of Michigan negligence law. Mich. Comp. Laws §257.401 (1979). “The law thus builds a secondary defense against a forbidden use and precludes evasions by dispensing with the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged innocent owner.” Van Oster, 272 U. S., at 467-468. Petitioner also claims that the forfeiture in this case was a taking of private property for public use in violation of the Takings Clause of the Fifth Amendment, made applicable to the States by the Fourteenth Amendment. But if the forfeiture proceeding here in question did not violate the Fourteenth Amendment, the property in the automobile was transferred by virtue of that proceeding from petitioner to the State. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain. United States v. Fuller, 409 U. S. 488, 492 (1973); see United States v. Rands, 389 U. S. 121, 125 (1967). At bottom, petitioner’s claims depend on an argument that the Michigan forfeiture statute is unfair because it relieves prosecutors from the burden of separating co-owners who are complicit in the wrongful use of property from innocent co-owners. This argument, in the abstract, has considerable appeal, as we acknowledged in Goldsmith-Grant, 254 U. S., at 510. Its force is reduced in the instant case, however, by the Michigan Supreme Court’s confirmation of the trial court’s remedial discretion, see supra, at 446, and petitioner’s recognition that Michigan may forfeit her and her husband’s car whether or not she is entitled to an offset for her interest in it, Tr. of Oral Arg. 7, 9. We conclude today, as we concluded 75 years ago, that the cases authorizing actions of the kind at issue are “too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.” Goldsmith-Grant, supra, at 511. The State here sought to deter illegal activity that contributes to neighborhood deterioration and unsafe streets. The Bennis automobile, it is conceded, facilitated and was used in criminal activity. Both the trial court and the Michigan Supreme Court followed our longstanding practice, and the judgment of the Supreme Court of Michigan is therefore Affirmed. Mich. Comp. Laws § 750.338b (1979). Section 600.3801 states in pertinent part: “Any building, vehicle, boat, aircraft, or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, , . is declared a nuisance, . . . and all. . . nuisances shall be enjoined and abated as provided in this act and as provided in the court rules. Any person or his or her servant, agent, or employee who owns, leases, conducts, or maintains any building, vehicle, or place used for any of the purposes or acts set forth in this section is guilty of a nuisance.” Mich. Comp. Laws Ann. §600.3801 (West Supp. 1995). Section 600.3825 states in pertinent part: “(1) Order of abatement. If the existence of the nuisance is established in an action as provided in this chapter, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the building or place of all furniture, fixtures and contents therein and shall direct the sale thereof in the manner provided for the sale of chattels under execution .... “(2) Vehicles, sale. Any vehicle, boat, or aircraft found by the court to be a nuisance within the meaning of this chapter, is subject to the same order and judgment as any furniture, fixtures and contents as herein provided. “(&) Sale of personalty, costs, liens, balance to state treasurer. Upon the sale of any furniture, fixtures, contents, vehicle, boat or aircraft as provided in this section, the officer executing the order of the court shall, after deducting the expenses of keeping such property and costs of such sale, pay all liens according to their priorities . . . , and shall pay the balance to the state treasurer to be credited to the general fund of the state.. ..” Mich. Comp. Laws §600.3825 (1979). “Proof of knowledge of the existence of the nuisance on the part of the defendants or any of them, is not required.” Mich. Comp. Laws §600.3815(2) (1979). In Austin v. United States, 509 U. S. 602, 617 (1993), the Court observed that J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505 (1921), “expressly reserved the question whether the [guilty-property] fiction could be employed to forfeit the property of a truly innocent owner.” This observation is quite mistaken. The Goldsmith-Grant Court expressly reserved opinion “as to whether the section can be extended to property stolen from the owner or otherwise taken from him without his privity or consent.” Id., at 512 (emphases added). In other words, the Goldsmith-Grant Court drew the very same distinction made by the Michigan Supreme Court in this case: “the distinction between the situation in which a vehicle is used without the owner’s consent,” and one in which, “although the owner consented to [another person’s] use, [the vehicle] is used in a manner to which the owner did not consent.” 447 Mich., at 742, n. 36, 527 N. W. 2d, at 495, n. 36. Because John Bennis co-owned the car at issue, petitioner cannot claim she was in the former situation. The dissent, post, at 466-468, and n. 12, quoting Peisch v. Ware, 4 Cranch 347, 364 (1808), seeks to enlarge the reservation in Goldsmith-Grant into a general principle that “ ‘a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed.’” But Peisch was dealing with the same question reserved in Goldsmith-Grant, not any broader proposition: “If, by private theft, or open robbery, without any fault on his part, [an owner’s] property should be invaded, . . . the law cannot be understood to punish him with the forfeiture of that property.” 4 Cranch, at 364. U. S. Const., Amdt. 8. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_genresp1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Alice K. SHARPE and Juanita Sharpe, by her next friend, H. L. King, Appellants, v. BRADLEY LUMBER COMPANY, Inc., Appellee. No. 71-1050. United States Court of Appeals, Fourth Circuit. Argued May 13, 1971. Decided July 19, 1971. John M. Minor, Winston-Salem, N. C. (Deal, Hutchins & Minor, Fred S. Hutchins, and William Kearns Davis, Winston-Salem, N. C., on brief), for appellants. Richmond G. Bernhardt, Jr., Greensboro, N. C., and W. F. Womble, Winston-Salem, N. C. (Smith, Moore, Smith, Schell & Hunter, Greensboro, N. C., and Womble, Caryle, Sandridge & Rice, Winston-Salem, N. C., on brief), for appellee. Before SOBELOFF, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges. SOBELOFF, Senior Circuit Judge: This appeal presents a question of agency under the North Carolina law. On November 26, 1966, an automobile driven by Alice Sharpe was involved in a collision with a tractor-trailer driven by Leonard Lewis and owned by R. K. Grindstaff & Son, a partnership. Mrs. Sharpe’s husband and son were killed in the accident and she and her eleven-year-old daughter, Juanita, were seriously injured. This suit was instituted under diversity of citizenship in the United States District Court for the Middle District of North Carolina by Mrs. Sharpe and her daughter against Lewis, the Grindstaff partnership, and Bradley Lumber Co., seeking recovery for permanent injuries, pain and suffering, and medical expenses. The complaint averred that Lewis was the agent of both Grindstaff & Son and the Bradley Lumber Company. The District Court found Lewis guilty of negligence and entered judgment against him and the Grindstaff partnership in the amounts of $50,000 for Mrs. Sharpe and $65,000 for Juanita. Lewis and the partnership do not appeal from that judgment. The court concluded, however, that under North Carolina law Lewis was not the agent or employee of Bradley Lumber Company at the time of the accident, and accordingly dismissed the action against the company. This is the ruling the Sharpes appeal, raising the single issue of whether Lewis was Bradley Lumber Company’s agent or employee as well as R. K. Grindstaff & Son’s. I As defined by the Supreme Court of North Carolina, the test for determining the existence of a principal-agent or employer-employee relationship is “whether the party for whom the work is being done has the right to control the worker with respect to the manner or method of doing the work, as distinguished from the right merely to require certain definite results conforming to the contract. If the employer has the right of control, it is immaterial whether he actually exercises it.” McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658, 660 (1951) (emphasis added); see also Cooper v. Asheville Citizen-Times Publishing Co., Inc., 258 N.C. 578, 129 S.E.2d 107 (1963); Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220 (1953). Thus, for example, in Graham v. Wall, 220 N.C. 84, 16 S.E.2d 691 (1941), a principal-agent relationship was found to exist despite the testimony of the employer, the employee, and the employee’s supervisor, that the employer did not in fact exercise any control. Though no one factor is controlling, the existence of an employer-employee relationship is frequently evidenced by continuity of employment, periodic compensation on a regular basis rather than lump-sum payments for specific jobs performed, and the absence of special skill or training requirements. Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944). In Smith v. Kappas, 218 N.C. 758, 12 S.E.2d 693 (1941), the Supreme Court of North Carolina emphasized that agency may be implied “by conduct, by the relations and situation of the parties, by acts and declarations, by matters of omission as well as commission, and, generally by any fact or circumstance with which the alleged principal can be connected and having a legitimate tendency to establish that the person in question was his agent for the performance of the act in controversy.” 12 S.E.2d at 698. II R. K. Grindstaff & Son were engaged in the business of sawmilling and trucking, the latter activity under the direction and control of the junior partner, Ronnie Grindstaff. In November, 1966, the time of the accident, the partnership owned three tractor-trailer units, two of which were closely tied in with the operations of the Bradley Lumber Co. One was leased to the company on a permanent basis. The other, driven regularly by Lewis, was devoted largely, though not exclusively, to hauling lumber for the Bradley Lumber Co., and was garaged at Bradley’s place of business in Marion, North Carolina. It was this vehicle that collided with the Sharpes’ automobile shortly after Lewis had completed delivering a load of lumber in Lexington, North Carolina for the Bradley Lumber Company. Bradley’s payments for the use of the leased vehicle and for the hauling performed by Lewis amounted to nearly half the annual gross income of the Grindstaff partnership. The business relationship among the Bradley Lumber Company, the partnership, Grindstaff, and Lewis can only be described as loose and informal, due in part perhaps to a family relationship: Pierce Bradley, the President and sole stockholder of Bradley Lumber Company, was Ronnie Grindstaff’s uncle. The lines of authority were not sharply demarcated. This is well illustrated by their method of settling accounts. At the end of every week, Ronnie would meet with Pierce Bradley and his wife, who was secretary-treasurer of the company. After consulting with Lewis as to his mileage and determining the week’s mileage on the leased truck, Ronnie would compute the total sum due from the company. No written statement of any kind was prepared or submitted. Ronnie would have Mrs. Bradley draw up three checks: one payable to Ronnie in the amount of $80.00; one payable to Lewis based on his work in hauling lumber for the Bradley Lumber Co. and others ; and the balance payable to the Grindstaff partnership. Lewis received his entire compensation in this manner by checks drawn by Bradley Lumber Company. The company treated Lewis as its employee. It not only carried him on its payroll, but reported him as its employee to the United States Internal Revenue Service, Social Security Administration, and the North Carolina taxing authorities. It also included him in its group hospitalization plan. Moreover, Bradley carried Lewis as an employee for unemployment and workmen’s compensation purposes. By so doing, Bradley Lumber Company was under the protection that the North Carolina law affords employers — relief from unlimited liability at common law for employee injuries proximately caused by the employer’s negligence. N.C.Gen. Stat. § 97-10.1 (1965). The company was reimbursed for these expenses in part, but not in full, by the Grindstaff partnership. Lewis, for his part, reported Bradley Lumber Company as his employer in his state and federal income tax returns. Although he received instructions only from Ronnie Grindstaff, he testified that he did not know whether he was working for Ronnie Grindstaff or Pierce Bradley.' Nor did he know whether Ronnie Grindstaff was employed by Bradley Lumber Company. Ronnie Grindstaff, as Lewis’ immediate supervisor, served in a dual capacity. Not only was he a partner of R. K. Grindstaff & Son, but he was also the Vice President and a director of the Bradley Lumber Company. He reported daily at Bradley Lumber Company’s yard in Marion where he would receive from Bradley the trucking orders to be relayed to Lewis for delivery. Like Lewis, he was treated as Bradley’s employee for tax and accounting purposes, and Ronnie’s weekly payment of $80.00 was not reported as partnership income. We think that these facts ineluctably establish that Lewis was no less an employee of the Bradley Lumber Company than of R. K. Grindstaff & Son and that his negligence which brought injuries to the Sharpes is imputable to both. Although Pierce Bradley testified that he did not supervise any of Lewis’ activities, we think there can be no doubt that the Bradley Lumber Company retained the right to control Lewis. If, as the appellee claims, the arrangements with respect to Lewis’ employment were rooted in a desire of Grindstaff and Bradley to effect a “convenient accommodation,” this does not alter the legal consequences of their agreement, particularly when the rights of innocent third parties injured by Lewis’ negligence are involved. We agree with the appellee that the inclusion of Lewis on the payroll of Bradley Lumber Company would not, standing alone, suffice to establish an agency relationship, Forgay v. North Carolina State University, 1 N.C.App. 320, 161 S.E.2d 602 (1968), although that fact has been given significant probative force. Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536 (1966); Graham v. Wall, supra. But when Bradley Lumber Company’s consistent treatment of Lewis as its employee is combined with Lewis’ regular employment in hauling lumber for the company, and the close business relationship that existed between Ronnie Grindstaff and Bradley, the conclusion is inescapable that a principal-agent relation was present. Lewis’ immediate supervisor was not only a partner in a concern dependent on Bradley Lumber Company for half its income, but was the Vice President and a director of the lumber company itself. Pierce Bradley’s belated disavowal of Lewis as an employee after the accident that injured the Sharpes cannot prevail over the clear evidence to the contrary in this record. Nor do we think that the admission by the Grindstaff partnership that Lewis was their employee shields Bradley Lumber Company from liability. The North Carolina courts have explicitly recognized that an agent can be in the service of two principals simultaneously, provided both have a right to exercise some measure of control, and there is a common or joint participation in the work and benefit to each from its rendition. Lewis v. Barnhill, supra; Altman v. Sanders, 267 N.C. 158, 148 S.E.2d 21 (1966); Legette v. J. D. McCotter, Inc., 265 N.C. 617, 144 S.E.2d 849 (1965). See Restatement (Second) of Agency, § 226 (1958). These features were present here and the appellants are entitled to judgment against Bradley Lumber Company as well as R. K. Grindstaff & Son. Reversed and remanded for entry of judgment in favor of the appellants against the appellee. . Wrongful death actions are now pending in a North Carolina state court on behalf of the personal representatives of Mrs. Sharpe’s deceased husband and son. . In Forgay, the North Carolina Court of Appeals reversed a determination by the workmen’s compensation commission that North Carolina State University was an employer of a student working for the town of Madison under a federally-sponsored program of assistance to college students. The university’s primary responsibility under the federal program was the distribution of wages. It received no services whatsoever, nor did it assume any responsibility for assigning the students to their off-campus jobs. There was even some uncertainty as to whether or not the university was aware of where the students were working. Forgay is clearly distinguishable from the case at hand. 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_casetyp1_1-3-1	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". UNITED STATES of America, Plaintiff-Appellee, v. Dale H. PRAIRIE, Defendant-Appellant. No. 77-2271. United States Court of Appeals, Ninth Circuit. Feb. 1, 1978. Rehearing En Banc Denied April 10, 1978. Lee Petersen, of Gregg, Fraties, Petersen, Page & Baxter, Anchorage, Alaska, for defendant-appellant. Nelson P. Cohen, Asst. U. S. Atty., Anchorage, Alaska, for plaintiff-appellee. Before KILKENNY and WALLACE, Circuit Judges, and PALMIERI, District Judge. Honorable Edmund L. Palmieri, United States District Judge, Southern District of New York, sitting by designation. WALLACE, Circuit Judge: Prairie appeals from a two-count conviction for distribution of a controlled substance (cocaine) in violation of 21 U.S.C. § 841. We affirm. I. Prairie was employed as a cab driver in Anchorage, Alaska. In late November 1976, Prairie accompanied Boles, a fellow cab driver, to a motel room where Cayton was staying. The purpose of the visit was to collect money owed by Cayton to Boles as a result of prior drug transactions. Prairie was unaware that Cayton had been a paid government informant, and that state drug enforcement officers were paying Cayton’s rent and food expenditures from money owed to her in return for her participation in several recent drug cases. A few days later Boles told Prairie that Cayton wanted to purchase some cocaine. Without further encouragement, Prairie purchased a gram of cocaine and took it to Cayton’s room. Cayton informed Prairie that she only had $50 and therefore could not purchase the entire gram. Prairie sold Cayton half of the gram and left. Later that day, Cayton telephoned Prairie and persuaded him to bring her the remaining half-gram of cocaine upon her representation that she would pay him the following day. During the ensuing days, Prairie and Cayton saw each other frequently, and Prairie continued to supply Cayton with cocaine. On November 26,1976 Cayton telephoned Grimes, a state drug enforcement officer, and informed him that she knew a taxicab driver who was willing to sell cocaine. Grimes requested that Cayton arrange a meeting between him and Prairie. The meeting was arranged and Grimes and Prairie met later that day at Cayton’s motel room. Officer Grimes was equipped with a miniature transmitter which allowed other officers to tape record the conversation. Prairie told Officer Grimes about his extensive experience in drug transactions and they discussed the creation of a cocaine-distribution operation. No drugs were purchased on this occasion, but Prairie agreed to sell Grimes a cocaine “sample” at a later time. Officer Grimes and Prairie met again on December 2 in Cayton’s motel room. During this meeting Prairie sold Grimes one gram of cocaine. In addition, they discussed the creation of the cocaine-distribution plan. During the last hours of December 7, Grimes and Prairie spoke by telephone and agreed to meet in order for Grimes to purchase a larger quantity of cocaine. Later that night, the two men met at a bar and traveled to Prairie’s residence to pick up the cocaine. On this occasion, Prairie sold Officer Grimes two and one-fourth ounces of cocaine. Prairie was arrested at the conclusion of the transaction. Prairie was convicted on two counts of distribution, pertaining to the December 2 and December 8,1976 transactions. Prairie now raises four separate grounds for reversal, none of which is persuasive. II. Prairie’s first contention is that the government’s conduct in this case is sufficiently outrageous and “shocking to the universal sense of justice” that due process principles bar his conviction. This defense is, of course, based upon Mr. Justice Rehnquist’s oft-quoted dictum in United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973). There, the Court held that the defendant’s predisposition rather than the government’s conduct should be the object of scrutiny in considering the applicability of the traditional, non-constitutional defense of entrapment. In so holding, however, the Court commented that it “may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction. . . . ” Id. The Supreme Court again considered this defense in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Despite the lack of a majority opinion, we have read the Hampton opinions as permitting a due process defense based on the outrageous nature of the government’s conduct. United States v. Gonzales, 539 F.2d 1238, 1239 (9th Cir. 1976); United States v. Gonzalez-Benitez, 537 F.2d 1051, 1055 (9th Cir.), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976). Accord, United States v. Leja, 563 F.2d 244 (6th Cir. 1977); United States v. Reifsteck, 535 F.2d 1030, 1035 (8th Cir. 1976). The gravamen of Prairie’s claim is that the government employed a prostitute to emotionally and sexually seduce Prairie and thereby persuade him to deal in illicit drugs. This assertion is without merit. The record is clear that Cayton was neither paid nor asked by the agents to establish any particular relationship with Prairie and, in any event, her official role was limited to that of introducing a willing seller of narcotics to a willing purchaser. Moreover, it is clear that the use of paid informants and undercover police officers to ferret out drug dealers is not violative of due process principles. See, e. g., United States v. Gonzalez-Benitez, supra, 537 F.2d at 1055; United States v. Spivey, 508 F.2d 146, 149 (10th Cir.), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975); United States v. Arias-Diaz, 497 F.2d 165, 169 (5th Cir. 1974), cert. denied, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975). III. Prairie also argues that the trial court erred in refusing to give a requested instruction which would have placed the due process defense before the jury. We recently stated: The question of whether the agents’ actions were a violation of due process was one of law, and properly determined by the district court. Appellant[’s] . contention that the district court erred by failing to submit the question to the jury is therefore without merit. United States v. Gonzales, supra, 539 F.2d at 1240 n. 1. Accord, United States v. Quinn, 543 F.2d 640, 648 (8th Cir. 1976). We adhere to this position. IV. Prairie’s next contention is that the trial court erred in refusing to find as a matter of law that Prairie was entrapped. In United States v. Rangel, 534 F.2d 147 (9th Cir.), cert. denied, 429 U.S. 854, 97 S.Ct. 147, 50 L.Ed.2d 129 (1976), we explained that “[entrapment as a matter of law exists only when there is undisputed testimony making it patently clear that an otherwise innocent person was induced to commit the act complained of by the trickery, persuasion or fraud of a government agent.” Id. at 149 (emphasis added). In light of this standard, our review of the entire record leads us to conclude that the entrapment issue was properly presented to the jury. Certainly, Prairie’s own testimony regarding his prior experience in the use and distribution of illegal drugs coupled with the fact that he sold Cayton cocaine before the agents became involved is sufficient evidence to create a jury question on the issue of entrapment. V. Prairie’s final contention is that the district judge erred in refusing to admit certain testimony regarding Cayton’s sexual activity and her willingness to exchange sex for illegal drugs. The relevance of the proffered testimony, argues Prairie, is to demonstrate the outrageousness of the government’s conduct and the nature of the alleged entrapment. Our careful review of the entire record leads us to conclude that the error, if any, in refusing to admit the offered testimony was harmless. Fed.R. Crim.P. 52(a). AFFIRMED. . These differing concepts of entrapment have been termed, respectively, the “subjective” and “objective” theories of entrapment. By approving the subjective theory, the Court in Russell adhered to the rule announced in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). See United States v. Esquer-Gamez, 550 F.2d 1231, 1233-34 (9th Cir. 1977); United States v. Reynoso-Ulloa, 548 F.2d 1329, 1334-36 (9th Cir. 1977). See generally, The Supreme Court, 1972 Term, 87 Harv.L.Rev. 55, 243-252 (1973). . We have acknowledged that a criminal defendant may have a due process defense where the government’s conduct is sufficiently outrageous. See, e. g., United States v. Smith, 538 F.2d 1359, 1361 (9th Cir. 1976); United States v. Lue, 498 F.2d 531, 533-34 (9th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 513, 42 L.Ed.2d 306 (1974). . Regardless of how the plurality opinion in Hampton is read, a majority of the Court expressly refused to rule that due process principles could not prevent conviction in a case where, even though the defendant was predisposed to commit the crime, the government’s conduct is sufficiently offensive. 425 U.S. at 495, 96 S.Ct. 1646 (Powell & Blackmun, JJ., concurring in judgment) and id. at 497, 96 S.Ct. 1646 (Brennan, Stewart & Marshall, JJ., dissenting). . Prairie relies heavily on the contention that the government’s conduct in paying Cayton’s living expenses violated Alaska’s criminal laws concerning prostitution. However, the record is clear that Cayton’s expenses were paid from funds she had earned by testifying in prior drug cases and that the agents were unaware of her daily activities. In any event, even assuming that the government’s actions were illegal, such conduct does not, without more, give rise to a due process defense. Hampton v. United States, supra, 425 U.S. at 490, 96 S.Ct. 1646; United States v. Spivey, supra, 508 F.2d at 149. 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:
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. MITCHELL, SECRETARY OF LABOR, v. H. B. ZACHRY CO. No. 83. Argued February 25, 1960. Decided April 4, 1960. Bessie Margolin argued the cause for petitioner. With her on the brief were Solicitor General Rankin, Harold C. Nystrom, Sylvia S. Ellison and Jacob I. Karro. R. Dean Moorhead and Chester H. Johnson argued the cause and filed a brief for respondent. Mr. Justice Frankfurter delivered the opinion of the Court. Once again we are presented with a nice question concerning the scope of the Fair Labor Standards Act, as amended. 63 Stat. 912, 29 U. S. C. § 207. The respondent, a construction contractor, was engaged by the Lower Nueces River Water Supply District (hereafter to be called the District) to construct a dam and impounding facilities on the lower Nueces River in Texas at a cost of about $6,000,000, in order to increase roughly tenfold the District’s then-existing reservoir capacity. The dam is not a multi-purpose project; its sole purpose is to create an expanded reservoir for the District. The water impounded by the District is supplied to consumers locally, within the State of Texas. The site of the new dam was chosen 1,400 feet downstream from the old, with the expectation that upon completion of the new construction the old dam would be inundated and thus replaced by the greatly expanded reservoir. In the interim until completion, the old facilities could serve to assure a continuing water supply. The District, though for some purposes an independent governmental agency under Texas law, may here be dealt with simply as the water supply system of the included City of Corpus Christi. Its contract with the City requires it to supply the City with the entire water output; and the City in turn agrees to operate and maintain the completed dam and impounding facilities and to supply water to consumers within the District, but outside city limits. It is conceded that between 40% and 50% of all water consumption from the system is accounted for by industrial (as distinguished from residential, commercial, hospital, municipal and other) users, most of whom produce goods for commerce, and that water is essential to their operations. Nor is it contested that an unspecified amount of the water supplied by the District is consumed by facilities and instrumentalities of commerce. It is agreed that as to the employees here involved— those actually engaged in construction work on the dam— the respondent failed to comply with the requirements of § 7 of the Act, if it is applicable. On the basis of its applicability the Secretary of Labor sought an injunction in the United States District Court for the Southern District of Texas. That court granted the injunction, on two grounds of coverage: (1) since water from the system is supplied to facilities and instru-mentalities of commerce, those engaged in building the dam are engaged in the production of goods — water—for commerce; and (2) since the water supplied is essential to industries in Corpus Christi producing goods for commerce, construction of the dam is an occupation “closely related” and “directly essential” to the production of goods for commerce. While the District Court conceded “that Congress intended to narrow the scope of coverage” by the 1949 amendment of the statutory definition of “produced” in § 3 (j), 63 Stat. 911, it concluded that this employment remained within the coverage of the Act. On appeal the Court of Appeals for the Fifth Circuit reversed. 262 F. 2d 546. It disposed of the first ground of the District Court’s decision by holding that the building of a dam could not itself constitute the production of goods for commerce, whatever the use to which the impounded water might be put. In disposing of the second, it invoked a rule that “those engaged in building a plant to be used for the manufacturing of goods do not even come within . . . the . . . statutory definition . . . .” It concluded that under such a rule there could be no coverage of employees engaged in construction of a facility which was not to engage in, but merely to support, the manufacture of goods for commerce. It con-eluded further that the “remoteness” of these jobs from production justified their exclusion from coverage. Both conclusions reflected its general view that “the amendment of 1949 made even more restrictive the definition of production of goods” than it was under the Act of 1938, when it substituted the words “directly essential” for the word “necessary,” and added the requirement that the employment be “closely related” to production. We brought the case here, 361 U. S. 807, because of an asserted conflict between circuits. (See Chambers Construction Co. v. Mitchell, 233 F. 2d 717, and Mitchell v. Chambers Construction Co., 214 F. 2d 515.) The court below, in applying its rule excluding “construction,” relied on our per curiam decision in Murphey v. Reed, 335 U. S. 865, and distinguished the more detailed decision in Mitchell v. Vollmer & Co., 349 U. S. 427, which expressly rejected the “new construction” rule and held construction of a new lock on the Gulf Intracoastal Waterway to be covered employment. It did so by holding that Vollmer concerned only coverage under the “in commerce” provision of the Act. The Vollmer decision cannot be so confined. It rejected an inflexible “new construction” rule, which had developed in cases under the Federal Employers’ Liability Act, see 349 U. S., at 429, 431-432, as inconsistent with the more pragmatic test of coverage under the Fair Labor Standards Act. As early as Kirschbaum Co. v. Walling, 316 U. S. 517, we recognized that the penetrating and elusive duty which this Act casts upon the courts to define in particular cases the less-than-constitutional reach of its scope, cannot be adequately discharged by talismanic or abstract tests, embodied in tags or formulas. No exclusion of construction work from coverage can be derived from the per curiam disposition of Murphey v. Reed, supra. There, as here, whether construction work is covered depends upon all the circumstances of the relation of the particular activity to “commerce” in the statutory sense and setting, the question to which we now turn. By confining the Act to employment “in commerce or in the production of goods for commerce,” Congress has impliedly left to the States a domain for regulation. For want of a provision for an administrative determination, by an agency like the National Labor Relations Board, the primary responsibility has been vested in courts to apply, and so to give content to, the guiding yet undefined and imprecise phrases by which Congress has designated the boundaries of that domain. Before 1949 the boundary of “production” coverage was indicated by the statutory requirement that to be included an activity not “in” production must be “necessary” to it. 52 Stat. 1061. The interaction and interdependence of the processes and functions of the industrial society within which these definitions must be applied, could easily lead courts to find few activities that were discernibly related to production not to be “necessary” to it, in a logical sense of that requirement. The statute, as illuminated by its history, see Kirschbaum Co. v. Walling, supra, at 522, demanded that such merely logical deduction be eschewed. Courts were to be on the alert “not to absorb by adjudication essentially local activities that Congress did not see fit to take over by legislation.” 10 East 40th St. Co. v. Callus, 325 U. S. 578, 582-583. In Kirschbaum Co. v. Walling, supra, we added what was deemed a compelled gloss to suggest the limitations of “necessary.” We found that the jobs of building-maintenance employees, ranging in responsibility from electrician to porter, of a loft building locally owned but tenanted by production facilities of producers for commerce, had “such a close and immediate tie with the process of production for commerce, and [were] therefore so much an essential part of it,” that the employees’ occupations were “necessary” to production. In Borden Co. v. Borella, 325 U. S. 679, precisely the same formulation expressed our conclusion that maintenance employees of a producer-owned office building which was tenanted in part by the producer’s central offices, but not by any production facilities, were also within the Act’s coverage. In 10 East 40th St. Co. v. Callus, 325 U. S. 578, however, maintenance employees of an office building were held not to be covered. Although the building contained offices of some producers, it was locally owned, held out for general tenancy, and in fact tenanted by a miscellany of tenants. Regardful of the governing principle that coverage turns upon the nature of the employees’ duties, and not upon the nature, local or interstate, of the employer’s general business, we held the case distinguishable from Borden and Kirschbaum because the employment, since part of an enterprise which “spontaneously satisfies the common understanding of what is local business,” was itself sufficiently different, despite identical employee duties, from prior cases to justify regarding it as separate from the “necessary parts of a commercial process” which are within the Act. These decisions and distinctions were not exercises in lexicography. No niceties in phrasing or formula of words could do service for judgment, could dispense with painstaking appraisal of all the variant elements in the different situations presented by successive cases in light of the purpose of Congress to limit coverage short of the exercise by it of its full power under the Commerce Clause. While attempted formulas of the relationship to production required for coverage cannot furnish automatic or spontaneous answers to specific problems of application as they arise in their protean diversity, general principles of the Act’s scope afford direction of inquiry by defining the broad bounds within which decision must move. In Kirschbaum Co. v. Walling, supra, we found that limits on coverage cannot be understood merely in terms of the social purposes of the Act, in light of which any limitations must appear inconsistent. For the Act also manifests the competing concern of Congress to avoid undue displacement of state regulation of activities of a dominantly local character. Accommodation of these interests was sought by the device of confinement of coverage to employment in activities of traditionally national concern. The focus of coverage became “commerce,” not in the broadest constitutional sense, but in the limited sense of § 3 (b) of the statute: “trade, commerce, transportation, transmission, or communication among the several States . . . .” Employment “in” such activities is least affected by local interests. A step removed from employment “in commerce” is employment “in” production which is “for” commerce. Under this clause we have sustained coverage whether the product is to be consumed primarily by commerce in the statutory sense, by its “facilities and instrumentalities,” see Alstate Construction Co. v. Durkin, 345 U. S. 13, or, as in the case of the products of the industrial consumers of water here, to move in it. Furthest removed from “commerce” is employment not “in” production “for” commerce but in an activity which is only “related” to such production. In applying this provision, we have necessarily borne in mind that it is furthest removed in the scheme of the statute from the hub of the national interest in “commerce” upon which a limited displacement of state power is predicated. The amendment of §3 (j) in 1949 did not alter the basic statutory scheme of coverage, but did reinforce the requirement that in applying the last clause of the section its position at the periphery of coverage be taken into account as a relevant factor in the determination. In revising coverage Congress turned only to the last clause of the section, which it evidently continued to regard as marking the outer limits of applicability. The amendment substantially adopts the gloss of Kirschbaum to indicate the scope of coverage of activities only “related” to production. But examination of its history discloses that in adopting that gloss the purpose of Congress was not simply to approve everything done here and in the lower courts in what purported to be specific applications of that inevitably elusive formulation. While the approach of Kirschbaum was confirmed, the change manifests the view of Congress that on occasion courts, including this Court, had found activities to be covered, which the law-defining body deemed too remote from commerce or too incidental to it. The House, overriding the contrary action of its Labor Committee which had left § 3 (j) unchanged, see H. R. 5856, as reported, and H. R. Rep. No. 267, 81st Cong., 1st Sess., 1949, adopted an amendment proposed by Committee member Lucas from the floor (95 Cong. Rec. 11000), which did amend § 3 (j). Representative Lucas made it plain that it was his purpose to constrict coverage. 95 Cong. Rec. 11001. As passed by the House, § 3 (j) was identical with the present Act except that for “directly essential” the House version used “indispensable.” The Senate substituted its own bill, S. 653, for the House draft, and its version left § 3 (j) unchanged. The resulting conference adopted the House bill insofar as it amended § 3 (j), with only the change already noted. While the reports presented to the House and Senate by their respective conferees manifest some disagreement as to degree, it is apparent that some restraint on coverage was intended by both. In the House, for example, Kirschbaum was approved and our decision in Martino v. Michigan Window Cleaning Co., 327 U. S. 173, was disapproved (H. R. Conf. Rep. No. 1453, 81st Cong., 1st Sess., p. 15); while the Senate conferees, with different emphasis, noted only that the standard applied in “most” of our decisions was adopted. 95 Cong. Rec. 14874. Both reports use as illustrations of coverage which remains unchanged by the amendment, employment in utilities supplying water to the producers of goods for commerce. H. R. Conf. Rep. No. 1453, p. 14; 95 Cong. Rec. 14875. But no illustration in either statement deals with construction of a dam designed solely for use as an impounding facility for a local water distribution system. The House Report does expressly state that the case of Schroeder Co. v. Clifton, 153 F. 2d 385 (C. A. 10th Cir.), is an instance of an activity not within the amended Act. But the activity there involved was one in support of construction of a dam; it was not the construction of the dam itself. Thus, even were we to accept the illustrations in the House Report as authoritative, we would not be relieved of the duty of deciding where between these boundaries of approval and disapproval the present facts lie. To do so requires that we once again apply the formulation set down in Kirschbaum, which, in light of the 1949 amendment, we must do with renewed awareness of the purpose of Congress to avoid intrusion into withdrawn local activities. To establish coverage the Secretary relies upon Farmers Reservoir & Irrigation Co. v. McComb, 337 U. S. 755, which, he asserts, establishes that employees are covered who are engaged not merely in operation of, but in maintenance and repair of, the facilities of a company distributing water for consumption by producers for commerce. He urges that once it is recognized — as the court below failed to do — that construction work is not excluded from the Act’s coverage, this concededly essential expansion of facilities is not distinguishable from maintenance and repair in any characteristic made relevant by the standard of “closely related” and “directly essential” to production. We do not agree. Assuming arguendo that maintenance and repair of the completed dam would be covered employment, it does not follow that construction of the dam therefore is. The activities are undoubtedly equally “directly essential” to the producers of goods who depend upon the water supply; but they are not equally remote from production or from the “commerce” for which production is intended. The distinction between maintenance and repair on the one hand, and replacement or new construction on the other, may often be difficult to delineate but is a practical distinction to which law must hot be indifferent. Its relevance here, where our purpose must be to isolate primarily local activities from the flow of commerce to which they invariably relate, lies in the close relation of maintenance and repair to operation, as opposed to replacement or new construction which is a separate undertaking necessarily prior to operation and therefore more remote from the end result of the process. As we held in Vollmer, that an activity is rightly called construction and is therefore distinct from operation, does not per se remove it from coverage. Construction may be sufficiently “closely related” to production to place it in that proximity to “commerce” which the Act demands as a predicate to coverage. Here, however, neither a facility of “commerce” nor a facility of “production” is under construction. Operation of the completed dam will merely support production facilities; and construction of the dam is yet another step more remote. The Secretary relies upon Mitchell v. Lublin, McGaughy & Associates, 358 U. S. 207, and Mitchell v. Vollmer & Co., supra, to establish that this construction is closely enough related to “production of goods for commerce” to be within the coverage of the Act. In each of those cases a construction activity was found “directly and vitally related” to “commerce” and therefore “in commerce,” and what we have already said demonstrates that they are not useful guides here. As Lublin, supra, manifests, an activity sufficiently “directly related” to commerce to be “in” it is, at most, no further removed from “commerce” than is the employment “in production” itself which the Act expressly covers. Compare Mitchell v. Lublin, McGaughy & Associates, supra, with Alstate Construction Co. v. Durkin, 345 U. S. 13. For this reason, although the Act has never contained even a general definition of the relationship of an activity to commerce necessary to justify its inclusion, such a relationship has been extrapolated by the courts in conformity with the statutory scheme, so as to displace state regulation “throughout the farthest reaches of the channels of interstate commerce.” Walling v. Jacksonville Paper Co., 317 U. S. 564, 567. No independent vitality attaches to conclusory phrases such as “directly” or “vitally related.” What is finally controlling in each case is the relationship of the employment to “commerce,” in the sense of the statute, and it needs no argument that as to that relationship this case is significantly different from Lublin or Vollmer. Moreover, though construction and operation of this dam are equally “directly essential” to the producers who require the water impounded and distributed, neither the construction nor the operation of the dam is designed for their use. Water is supplied by the District to a miscellany of users throughout its geographical area, and somewhat less than half of the consumption is by producers. These facilities, and their construction, are thus to be differentiated from the irrigation system in the Farmers Reservoir case, which was dedicated exclusively to supply water to farmers producing for commerce. These are no doubt matters of the nicest degree. They are inevitably so in the scheme and mode of enforcement of this statute. Bearing in mind the cautionary revision in 1949, and that the focal center of coverage is “commerce,” the combination of the remoteness of this construction from production, and the absence of a dedication of the completed- facilities either exclusively or primarily to production, persuades us that the activity is not “closely related” or “directly essential” to production for commerce.” The Secretary alternatively urges that because some of the water supplied by the District is consumed by facilities and instrumentalities of commerce, the water should be regarded as “goods” produced “for commerce” and the construction of the dam should be found sufficiently related to such production to be within the Act's coverage. He relies on Alstate Construction Co. v. Durkin, supra, and compares the water here to the construction materials there produced primarily for use in road construction. It is a sufficient, answer to this contention that the record is devoid of evidence of a purposeful and substantial dedication of otherwise local production to consumption by “commerce” which was the basis of our decision in Alstate. Indeed, it appears that the water supplied to the facilities and instrumentalities of commerce is but an insignificant portion of the total. Affirmed. With exceptions not relevant here, § 7, the hours provision, directs an employer to comply with its provisions as to “any of his employees who is engaged in commerce or in the production of goods for commerce . . . Only the last clause of § 3 (j) was amended in 1949. Before the amendment it was provided that “an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State.” 52 Stat. 1061. (Emphasis added.) The amended last clause provides: “or in any closely related process or occupation directly essential to the production thereof, in any State.” 63 Stat. 911. (Emphasis added.) The views of a minority of the Senate conferees emphasize the apparent inconsistencies between the reports delivered to the House and Senate. 95 Cong. Rec. 14880. The Secretary, similarly relies on the approval in general terms of such coverage in.the reports of the House and Senate conferees. H. R. Conf. Rep. No. 1453, 81st Cong., 1st Sess., p. 14; 95 Cong. Rec. 14875. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
sc_issue_8	13	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. GOULD v. RUEFENACHT et al. No. 84-165. Argued March 26, 1985 Decided May 28, 1985 Powell, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, White, Marshall, Blackmun, Rehnquist, and O’Con-nor, JJ., joined. Stevens, J., filed a dissenting opinion, ante, p. 697. Robert C. Epstein argued the cause for petitioner. With him on the brief were Dean A. Gaver and Joseph J. Fleisch-man. Robert J. Kelly filed a brief for O’Halloran, as respondent under this Court’s Rule 19.6, urging reversal. Peter S. Pearlman argued the cause for respondent Ruefe-nacht. With him on the brief was Jeffrey W. Herrmann. Daniel L. Goelzer argued the cause for the Securities and Exchange Commission as amicus curiae urging affirmance. With him on the brief were Solicitor General Lee, Deputy Solicitor General Claiborne, Paul Gonson, Jacob H. Still-man, and Rosalind C. Cohen. Justice Powell delivered the opinion of the Court. This case presents the question whether the sale of 50% of the stock of a company is a securities transaction subject to the antifraud provisions of the federal securities laws (the Acts). I In 1980, respondent Ruefenacht (hereafter respondent) purchased 2,500 shares of the stock of Continental Import & Export, Inc., an importer of wine and spirits, from Joachim Birkle. Birkle was Continental’s president and had owned 100% of the company’s stock prior to the time of the sale. The 2,500 shares, for which respondent paid $250,000, represented 50% of Continental’s outstanding stock. According to respondent, he purchased the stock in reliance on financial documents and oral representations made by Birkle; Christopher O’Halloran, a certified public accountant; and petitioner Gould, Continental’s corporate counsel. Part of the consideration for the deal was a promise by respondent that he would participate in the firm’s management. The record reveals that he helped solicit contracts for the firm, participated in some hiring decisions, signed a banking resolution so that he could endorse corporate checks in Birkle’s absence, and engaged in other more minor pursuits. All the while, however, respondent remained a full-time employee of another corporation, and his actions on behalf of Continental were at all times subject to Birkle’s veto. After respondent paid $120,000 of the stock’s purchase price, he began to doubt the accuracy of some of the representations made to him by Birkle and others. Respondent subsequently filed this suit, alleging violations of §§ 12(2) and 17(a) of the Securities Act of 1933 (1933 Act), 15 U. S. C. §§77£(2), 77q. He also alleged violations of § 10(b) of the Securities Exchange Act of 1934 (1934 Act), 15 U. S. C. §78j(b), and Rule 10b-5, 17 CFR §240.10b-5 (1984). The District Court granted summary judgment for the defendants, concluding that the stock respondent purchased was not a “security” within the meaning of § 3(a)(10) of the 1934 Act, 15 U. S. C. § 78c(a)(10), and §2(1) of the 1933 Act, 15 U. S. C. §77b(1). Finding that respondent intended to manage Continental jointly with Birkle, the court concluded that the sale of business doctrine prevented application of the Acts. The United States Court of Appeals for the Third Circuit reversed. Ruefenacht v. O’Halloran, 737 F. 2d 320 (1984). It ruled that the plain language of the Acts’ definitions of “security” included the stock at issue here, and it disagreed with the District Court’s conclusion that the sale of business doctrine must be applied in every case to determine whether an instrument is a “security” within the meaning of the Acts. Because the Courts of Appeals are divided over the applicability of the sale of business doctrine to sales of stock arguably transferring control of a closely held business, we granted certiorari. 469 U. S. 1016 (1984). For the reasons stated in our decision announced today in Landreth Timber Co. v. Landreth, ante, p. 681, we now affirm. HH HH In Landreth, we held that where an instrument bears the label “stock” and possesses all of the characteristics typically associated with stock, see United Housing Foundation, Inc. v. Forman, 421 U. S. 837, 851 (1975), a court will not be required to look beyond the character of the instrument to the economic substance of the transaction to determine whether the stock is a “security” within the meaning of the Acts. The instruments respondent purchased were called “stock,” and the District Court ruled that they possessed all of the characteristics listed by Forman that are usually associated with traditional stock. App. 50a. As we noted in Landreth, ante, at 687, the sale of stock in a corporation is typical of the kind of transaction to which the Acts by their terms apply. We conclude that the stock purchased by respondent is a “security” within the meaning of the Acts, and that the sale of business doctrine does not apply. I — I HH HH Aside from the language of the Acts and the characteristics of the instruments, there are sound policy reasons for rejecting the sale of business doctrine as a rule of decision in cases involving the sale of traditional stock in a closely held corporation. As petitioner acknowledges, see Brief for Petitioner 27, application of the doctrine depends primarily in each case on whether control has passed to the purchaser. See, e. g., Sutter v. Groen, 687 F. 2d 197, 203 (CA7 1982); King v. Winkler, 673 F. 2d 342, 345 (CA11 1982); Frederiksen v. Poloway, 637 F. 2d 1147, 1148 (CA7), cert. denied, 451 U. S. 1017 (1981). Control, in turn, may not be determined simply by ascertaining what percentage of the company’s stock has been purchased. To be sure, in many cases, acquisition of more than 50% of the voting stock of a corporation effects a transfer of operational control. In other cases, however, even the ownership of more than 50% may not result in effective control. In still other cases, defacto operational control may be obtained by the acquisition of less than 50%. These seemingly inconsistent results stem from the fact that actual control may also depend on such variables as voting rights, veto rights, or requirements for a super-majority vote on issues pertinent to company management, such as may be required by state law or the company’s certificate of incorporation or its bylaws. See Golden v. Garafalo, 678 F. 2d 1139, 1146 (CA2 1982) (“In ‘economic reality,’ considerably less than 100%, and often less than 50%, of outstanding shares may be a controlling block which, when sold to a single holder, effectively transfers the power to manage the business”); King v. Winkler, supra, at 346 (application of the sale of business doctrine “is not [merely] a function of numbers”). Whether control has passed with the stock may also depend on how involved in management the purchaser intends to be, see Landreth, ante, at 695-696. Therefore, under respondent’s theory, the Acts’ applicability to a sale of stock such as that involved here would rarely be certain at the time of the transaction. Accord, Hazen, Taking Stock of Stock and the Sale of Closely Held Corporations, 61 N. C. L. Rev. 393, 406 (1983). Rather, it would depend on findings of fact made by a court — often only after extensive discovery and litigation. Application of the sale of business doctrine also would lead to arbitrary distinctions between transactions covered by the Acts and those that are not. Because applicability of the Acts would depend on factors other than the type and characteristics of the instrument involved, a corporation’s stock could be determined to be a security as to the seller, but not as to the purchaser, or as to some purchasers but not others. Likewise, if the same purchaser bought small amounts of stock through several different transactions, it is possible that the Acts would apply as to some of the transactions, but not as to the one that gave him “control.” See Ruefenacht v. O’Halloran, 737 F. 2d, at 335. Such distinctions make little sense in view of the Acts’ purpose to protect investors. Moreover, the parties’ inability to determine at the time of the transaction whether the Acts apply neither serves the Acts’ protective purpose nor permits the purchaser to compensate for the added risk of no protection when negotiating the transaction. IV We conclude that the stock at issue here is a “security,” and that the sale of business doctrine does not apply. The judgment of the United States Court of Appeals for the Third Circuit is therefore Affirmed. [For dissenting opinion of Justice Stevens, see ante, p. 697.] The complaint named as defendants O’Halloran, Birkle, and Continental, as well as petitioner Gould. Birkle and Continental defaulted for failure to appear. O’Halloran is a respondent under this Court’s Rule 19.6 and filed a brief urging that the decision of the Court of Appeals be reversed. For example, although the sale of all of a corporation’s stock to a single buyer by a single seller would likely not constitute the sale of a security under the sale of business doctrine as to either party, the same sale to a single buyer by several sellers, none of whom exercised control, would probably be considered to be a securities transaction as to the sellers, but not as to the buyer. See Ruefenacht v. O’Halloran, 737 F. 2d 320, 335, and n. 36 (CA3 1984); McGrath v. Zenith Radio Corp., 651 F. 2d 458, 467-468, n. 5 (CA7), cert. denied, 454 U. S. 835 (1981); Seldin, When Stock is Not a Security, 37 Bus. Law. 637, 679 (1982). Question: What is the issue of the decision? 01. antitrust (except in the context of mergers and union antitrust) 02. mergers 03. bankruptcy (except in the context of priority of federal fiscal claims) 04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death 05. election of remedies: legal remedies available to injured persons or things 06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action. 07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages 08. liability, punitive damages 09. Employee Retirement Income Security Act (cf. union trust funds) 10. state or local government tax 11. state and territorial land claims 12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation) 13. federal or state regulation of securities 14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution) 15. corruption, governmental or governmental regulation of other than as in campaign spending 16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property 17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration) 18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts 19. patents and copyrights: patent 20. patents and copyrights: copyright 21. patents and copyrights: trademark 22. patents and copyrights: patentability of computer processes 23. federal or state regulation of transportation regulation: railroad 24. federal and some few state regulations of transportation regulation: boat 25. federal and some few state regulation of transportation regulation:truck, or motor carrier 26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline) 27. federal and some few state regulation of transportation regulation: airline 28. federal and some few state regulation of public utilities regulation: electric power 29. federal and some few state regulation of public utilities regulation: nuclear power 30. federal and some few state regulation of public utilities regulation: oil producer 31. federal and some few state regulation of public utilities regulation: gas producer 32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline) 33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television) 34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television) 35. federal and some few state regulations of public utilities regulation: telephone or telegraph company 36. miscellaneous economic regulation Answer:
songer_state	22	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". ELECTRONICS CORPORATION OF AMERICA, Plaintiff, Appellant, v. HONEYWELL, INC., Defendant, Appellee. No. 73-1260. United States Court of Appeals, First Circuit. Argued Nov. 6, 1973. Decided Dec. 3, 1973. Certiorari Denied March 4, 1974. See 94 S.Ct. 1491. Daniel F. Featherston, Jr., Boston, Mass., with whom Featherston, Homans, Klubock & Griffin, Boston, Mass., was on brief, for plaintiff, appellant. James W. Noonan, Boston, Mass., with whom Herrick, Smith, Donald, Farley & Ketchum, Boston, Mass., was on brief, for defendant, appellee. Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges. PER CURIAM. After argument and studying the briefs, we have come to the conclusion that we cannot improve on the thoughtful opinion of the district court, 358 F. Supp. 1230 (D.Mass.1973). We therefore affirm on the basis of that opinion. We add only two comments. The first is that appellant makes the pillar of its claim for punitive damages, fees, and costs, despite absence of any proof of actual damages, our statements in the prior case, Electronics Corporation of America v. Honeywell, Inc., 428 F.2d 191, 194 (1st Cir. 1970), that material misrepresentations “will damage” and that in a two-firm market “harm is sufficiently apparent” when such misrepresentations are made. While we cannot fault appellant for seizing on this language, we do not recant. When we spoke of the inevitability of harm we were not addressing the availability of damages but of relief. Because appel-lee’s harmful conduct was discontinued and no actual damage was shown no further relief is indicated. Our second comment is that in relying on the district court opinion, we do not indicate necessary agreement with its conclusion that palming off is not an essential element of a Lanham Act claim. We say this only because such a stance is not necessary for the decision of this appeal. 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:
sc_lcdisagreement	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. WISCONSIN v. MITCHELL No. 92-515. Argued April 21, 1993 Decided June 11, 1993 James E. Doyle, Attorney General of Wisconsin, argued the cause for petitioner. With him on the briefs was Paul Lundsten, Assistant Attorney General. Michael R. Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Bryson, Acting Assistant Attorneys General Keeney and Turner, Kathleen A. Felton, and Thomas E. Chandler. Lynn S. Adelman argued the cause for respondent. With him on the brief were Kenneth P. Casey and Susan Gellman. Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Andrew S. Bergman, Assistant Attorney General, and Simon B. Karas, John Payton, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective States as follows: James H. Evans of Alabama, Charles E. Cole of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A Norton of Colorado, Richard Blumenthal of Connecticut, Charles M. Oberly III of Delaware, Robert A Butterworth of Florida, Michael J. Bowers of Georgia, Robert A Marks of Hawaii, Larry EchoHawk of Idaho, Roland W. Burris of Illinois, Pamela Carter of Indiana, Bonnie J. Campbell of Iowa, Robert T. Stephan of Kansas, Chris Gorman of Kentucky Richard P Ieyoub of Louisiana, Michael E. Carpenter of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W. Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Robert J. Del Tufo of New Jersey, Tom Udall of New Mexico, Robert Abrams of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Susan B. Loving of Oklahoma, Theodore R. Kulongoski of Oregon, Ernest D. Preate, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Charles W. Burson of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, Mary Sue Terry of Virginia, Christine 0. Gregoire of Washington, Daryl V. McGrow of West Virginia, and Joseph B. Myer of Wyoming; for the city of Atlanta et al. by 0. Peter Sherwood, Leonard J. Koerner, Lawrence S. Kahn, Linda H. Young, Burt Neubome, Norman Dorsen, Neal M. Janey, Albert W. Wallis, Lawrence Rosenthal, Benna Ruth Solomon, Julie P. Downey, Jessica R. Heinz, Judith E. Harris, Louise H. Renne, and Dennis Aftergut; for the American Civil Liberties Union by Steven R. Shapiro and John A Powell; for the Anti-Deiamation League et al. by David M. Raim, Jeffrey P. Sinensky, Steven M. Freeman, Michael Lieberman, and Robert H. Friebert; for the Appellate Committee of the California District Attorneys Association by Gil Garcetti and Harry B. Sondheim; for the California Association of Human Rights Organizations et al. by Henry J. Silberberg and Mark Solomon; for the Chicago Lawyers’ Committee for Civil Rights Under Law, Inc., by Frederick J. Sperling and Roslyn C. Lieb; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; for the Crown Heights Coalition et al. by Samuel Rabinove, Richard T Foltin, Kenneth S. Stern, Elaine R. Jones, and Eric Sch7iapper; for the Jewish Advocacy Center by Barrett W. Freedlander; for the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area by Robert E. Borton; for the National Asian Pacific American Legal Consortium et al. by Angelo N. Ancheta; for the National Conference of State Legislatures et al. by Richard Ruda and Michael J. Wahoske; and for Congressman Charles E. Schumer et al. by Steven T. Catlett and Richard A Cordray. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union of Ohio by Daniel T. Kobil and Benson A Wolman; for California Attorneys for Criminal Justice by Robert R. Riggs, John T. Philipsborn, and Dennis P. Riordan; for the Center for Individual Rights by Gary B. Born and Michael P. McDonald; for the National Association of Criminal Defense Lawyers et al. by Harry R. Reinhart, John Pyle, Sean O’Brien, and William I. Aronwald; for the Ohio Public Defender by James Kura, Robert L. Lane, James R. Neuhard, Allison Connelly, Theodore A Gottfried, Henry Martin, and James E. Duggan; for the Wisconsin Freedom of Information Council by Jeffrey J. Kassel; for the Reason Foundation by Robert E. Sutton; for the Wisconsin Association of Criminal Defense Lawyers by Ira Miekenberg; and for Larry Alexander et al. by Martin H. Redish. Briefs of amici curiae were filed for the Lawyers’ Committee for Civil Rights Under Law by Paul Brest, Alan Cope Johnston, Herbert M. Wachtell, William H. Brown III, and Norman Redlich; and for the Wisconsin Inter-Racial and Inter-Faith Coalition for Freedom of Thought by Joan Kessler. Chief Justice Rehnquist delivered the opinion of the Court. Respondent Todd Mitchell’s sentence for aggravated battery was enhanced because he intentionally selected his victim on account of the victim’s race. The question presented in this case is whether this penalty enhancement is prohibited by the First and Fourteenth Amendments. We hold that it is not. On the evening of October 7,1989, a group of young black men and boys, including Mitchell, gathered at an apartment complex in Kenosha, Wisconsin. Several members of the group discussed a scene from the motion picture “Mississippi Burning,” in which a white man beat a young black boy who was praying. The group moved outside and Mitchell asked them: “‘Do you all feel hyped up to move on some white people?’” Brief for Petitioner 4. Shortly thereafter, a young white boy approached the group on the opposite side of the street where they were standing. As the boy walked by, Mitchell said: “‘You all want to fuck somebody up? There goes a white boy; go get him.’ ” Id., at 4-5. Mitchell counted to three and pointed in the boy’s direction. The group ran toward the boy, beat him severely, and stole his tennis shoes. The boy was rendered unconscious and remained in a coma for four days. After a jury trial in the Circuit Court for Kenosha County, Mitchell was convicted of aggravated battery. Wis. Stat. §§939.05 and 940.19(lm) (1989-1990). That offense ordinarily carries a maximum sentence of two years’ imprisonment. §§ 940.19(lm) and 939.50(3)(e). But because the jury found that Mitchell had intentionally selected his victim because of the boy’s race, the maximum sentence for Mitchell’s offense was increased to seven years under § 939.645. That provision enhances the maximum penalty for an offense whenever the defendant “[intentionally selects the person against whom the crime ... is committed ... because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person . . . .” § 939.645(l)(b). The Circuit Court sentenced Mitchell to four years’ imprisonment for the aggravated battery. Mitchell unsuccessfully sought posteonviction relief in the Circuit Court. Then he appealed his conviction and sentence, challenging the constitutionality of Wisconsin’s penalty-enhancement provision on First Amendment grounds. The Wisconsin Court of Appeals rejected Mitchell’s challenge, 163 Wis. 2d 652, 473 N. W. 2d 1 (1991), but the Wisconsin Supreme Court reversed. The Supreme Court held that the statute “violates the First Amendment directly by punishing what the legislature has deemed to be offensive thought.” 169 Wis. 2d 153, 163, 485 N. W. 2d 807, 811 (1992). It rejected the State’s contention “that the statute punishes only the ‘conduct’ of intentional selection of a victim.” Id., at 164, 485 N. W. 2d, at 812. According to the court, “[t]he statute punishes the ‘because of’ aspect of the defendant’s selection, the reason the defendant selected the victim, the motive behind the selection.” Ibid, (emphasis in original). And under R. A. V. v. St. Paul, 505 U. S. 377 (1992), “the Wisconsin legislature cannot criminalize bigoted thought with which it disagrees.” 169 Wis. 2d, at 171, 485 N. W. 2d, at. 815. The Supreme Court also held that the penalty-enhancement statute was unconstitutionally overbroad. It reasoned that, in order to prove that a defendant intentionally selected his victim because of the victim’s protected status, the State would often have to introduce evidence of the defendant’s prior speech, such as racial epithets he may have uttered before the commission of the offense. This evidentiary use of protected speech, the court thought, would have a “chilling effect” on those who feared the possibility of prosecution for offenses subject to penalty enhancement. See id., at 174, 485 N. W. 2d, at 816. Finally, the court distinguished antidiscrimination laws, which have long been held constitutional, on the ground that the Wisconsin statute punishes the “subjective mental process” of selecting a victim because of his protected status, whereas antidiscrimination laws prohibit “objective acts of discrimination.” Id., at 176, 485 N. W. 2d, at 817. We granted certiorari because of the importance of the question presented and the existence of a conflict of authority among state high courts on the constitutionality of statutes similar to Wisconsin's penalty-enhancement provision, 506 U. S. 1033 (1992). We reverse. Mitchell argues that we are bound by the Wisconsin Supreme Court’s conclusion that the statute punishes bigoted thought and not conduct. There is no doubt that we are bound by a state court’s construction of a state statute. B. A. V., supra, at 381; New York v. Ferber, 458 U. S. 747, 769, n. 24 (1982); Terminiello v. Chicago, 337 U. S. 1, 4 (1949). In Terminiello, for example, the Illinois courts had defined the term “ ‘breach of the peace,’” in a city ordinance prohibiting disorderly conduct, to include “ ‘stirs the public to anger ... or creates a disturbance.’ ” Id., at 4. We held this construction to be binding on us. But here the Wisconsin Supreme Court did not, strictly speaking, construe the Wisconsin statute in the sense of defining the meaning of a particular statutory word or phrase. Rather, it merely characterized the “practical effect” of the statute for First Amendment purposes. See 169 Wis. 2d, at 166-167, 485 N. W. 2d, at 813 (“Merely because the statute refers in a literal sense to the intentional ‘conduct' of selecting, does not mean the court must turn a blind eye to the intent and practical effect of the law — punishment of motive or thought”). This assessment does not bind us. Once any ambiguities as to the meaning of the statute are resolved, we may form our own judgment as to its operative effect. The State argues that the statute does not punish bigoted thought, as the Supreme Court of Wisconsin said, but instead punishes only conduct. While this argument is literally correct, it does not dispose of Mitchell's First Amendment challenge. To be sure, our cases reject the “view that an apparently limitless variety of conduct can be labeled ‘speech' whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391 U. S. 367, 376 (1968); accord, R. A. V., supra, at 385-386; Spence v. Washington, 418 U. S. 405, 409 (1974) (per curiam); Cox v. Louisiana, 379 U. S. 536, 555 (1965). Thus, a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment. See Roberts v. United States Jaycees, 468 U. S. 609, 628 (1984) (“[V]iolenee or other types of potentially expressive activities that produce special harms distinct from their communicative impact. . . are entitled to no constitutional protection”); NAACP v. Claiborne Hardware Co., 458 U. S. 886, 916 (1982) (“The First Amendment does not protect violence”). But the fact remains that under the Wisconsin statute the same criminal conduct may be more heavily punished if the victim is selected because of his race or other protected status than if no such motive obtained. Thus, although the statute punishes criminal conduct, it enhances the maximum penalty for conduct motivated by a discriminatory point of view more severely than the same conduct engaged in for some other reason or for no reason at all. Because the only reason for the enhancement is the defendant's discriminatory motive for selecting his victim, Mitchell argues (and the Wisconsin Supreme Court held) that the statute violates the First Amendment by punishing offenders’ bigoted beliefs. Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant. See Payne v. Tennessee, 501 U. S. 808, 820-821 (1991); United States v. Tucker, 404 U. S. 443, 446 (1972); Williams v. New York, 337 U. S. 241, 246 (1949). The defendant’s motive for committing the offense is one important factor. See 1 W. LeFave & A. Scott, Substantive Criminal Law § 3.6(b), p. 324 (1986) (“Motives are most relevant when the trial judge sets the defendant’s sentence, and it is not uncommon for a defendant to receive a minimum sentence because he was acting with good motives, or a rather high sentence because of his bad motives”); cf. Tison v. Arizona, 481 U. S. 137, 156 (1987) (“Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished”). Thus, in many States the commission of a murder, or other capital offense, for pecuniary gain is a separate aggravating circumstance under the capital sentencing statute. See, e. g., Ariz. Rev. Stat. Ann. § 13-703(F)(5) (1989); Fla. Stat. § 921.1415(f) (Supp. 1992); Miss. Code Ann. § 99-19-101(5)(f) (Supp. 1992); N. C. Gen. Stat. § 15A-2000(e)(6) (1992); Wyo. Stat. § 6-2-102(h)(vi) (Supp. 1992). But it is equally true that a defendant’s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge. Dawson v. Delaware, 503 U. S. 159 (1992). In Dawson, the State introduced evidence at a capital sentencing hearing that the defendant was a member of a white supremacist prison gang. Because “the evidence proved nothing more than [the defendant’s] abstract beliefs,” we held that its admission violated the defendant’s First Amendment rights. Id., at 167. In so holding, however, we emphasized that “the Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment.” Id., at 165. Thus, in Barclay v. Florida, 463 U. S. 939 (1983) (plurality opinion), we allowed the sentencing judge to take into account the defendant’s racial animus towards his victim. The evidence in that case showed that the defendant’s membership in the Black Liberation Army and desire to provoke a “race war” were related to the murder of a white man for which he was convicted. See id., at 942-944. Because “the elements of racial hatred in [the] murder” were relevant to several aggravating factors, we held that the trial judge permissibly took this evidence into account in sentencing the defendant to death. Id., at 949, and n. 7. Mitchell suggests that Dawson and Barclay are inapposite because they did not involve application of a penalty-enhancement provision. But in Barclay we held that it was permissible for the sentencing court to consider the defendant’s racial animus in determining whether he should be sentenced to death, surely the most severe “enhancement” of all. And the fact that the Wisconsin Legislature has decided, as a general matter, that bias-motivated offenses warrant greater maximum penalties across the board does not alter the result here. For the primary responsibility for fixing criminal penalties lies with the legislature. Rummel v. Estelle, 445 U. S. 263, 274 (1980); Gore v. United States, 357 U. S. 386, 393 (1958). Mitchell argues that the Wisconsin penalty-enhancement statute is invalid because it punishes the defendant’s discriminatory motive, or reason, for acting. But motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge. See Roberts v. United States Jaycees, 468 U. S., at 628; Hishon v. King & Spalding, 467 U. S. 69, 78 (1984); Runyon v. McCrary, 427 U. S. 160, 176 (1976). Title VII of the Civil Rights Act of 1964, for example, makes it unlawful for an employer to discriminate against an employee “because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e-2(a)(l) (emphasis added). In Hishon, we rejected the argument that Title VII infringed employers’ First Amendment rights. And more recently, in R. A. V. v. St Paul, 505 U. S., at 389-390, we cited Title VII (as well as 18 U. S. C. § 242 and 42 U. S. C. §§ 1981 and 1982) as an example of a permissible content-neutral regulation of conduct. Nothing in our decision last Term in R. A. V. compels a different result here. That case involved a First Amendment challenge to a municipal ordinance prohibiting the use of “ ‘fighting words’ that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’ ” 505 U. S., at 391 (quoting St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis. Code §292.02 (1990)). Because the ordinance only proscribed a class of “fighting words” deemed particularly offensive by the city — i. e., those “that contain ... messages of ‘bias-motivated’ hatred,” 505 U. S., at 392— we held that it violated the rule against content-based discrimination. See id., at 392-394. But whereas the ordinance struck down in R. A. V. was explicitly directed at expression (i. e., “speech” or “messages”), id., at 392, the statute in this case is aimed at conduct unprotected by the First Amendment. Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. See, e. g., Brief for Petitioner 24-27; Brief for United States as Amicus Curiae 13-15; Brief for Lawyers’ Committee for Civil Rights Under Law as Amicus Curiae 18-22; Brief for the American Civil Liberties Union as Amicus Curiae 17-19; Brief for the Anti-Defamation League et al. as Amici Curiae 9-10; Brief for Congressman Charles E. Sehumer et al. as Amici Curiae 8-9. The State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases. As Blackstone said long ago, “it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness.” 4 W. Blackstone, Commentaries *16. Finally, there remains to be considered Mitchell’s argument that the Wisconsin statute is unconstitutionally over-broad because of its “chilling effect” on free speech. Mitchell argues (and the Wisconsin Supreme Court agreed) that the statute is “overbroad” because evidence of the defendant’s prior speech or associations may be used to prove that the defendant intentionally selected his victim on account of the victim’s protected status. Consequently, the argument goes, the statute impermissibly chills free expression with respect to such matters by those concerned about the possibility of enhanced sentences if they should in the future commit a criminal offense covered by the statute. We find no merit in this contention. The sort of chill envisioned here is far more attenuated and unlikely than that contemplated in traditional “over-breadth” cases. We must conjure up a vision of a Wisconsin citizen suppressing his unpopular bigoted opinions for fear that if he later commits an offense covered by the statute, these opinions will be offered at trial to establish that he selected his victim on account of the victim’s protected status, thus qualifying him for penalty enhancement. To stay within the realm of rationality, we must surely put to one side minor misdemeanor offenses covered by the statute, such as negligent operation of a motor vehicle (Wis. Stat. § 941.01 (1989-1990)); for it is difficult, if not impossible, to conceive of a situation where such offenses would be racially motivated. We are left, then, with the prospect of a citizen suppressing his bigoted beliefs for fear that evidence of such beliefs will be introduced against him at trial if he commits a more serious offense against person or property. This is simply too speculative a hypothesis to support Mitchell’s overbreadth claim. The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. ■ Evidence of a defendant’s previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like. Nearly half a century ago, in Haupt v. United States, 330 U. S. 631 (1947), we rejected a contention similar to that advanced by Mitchell here. Haupt was tried for the offense of treason, which, as defined by the Constitution (Art. III, §3), may depend very much on proof of motive. To prove that the acts in question were committed out of “adherence to the enemy” rather than “parental solicitude,” id., at 641, the Government introduced evidence of conversations that had taken place long prior to the indictment, some of which consisted of statements showing Haupt’s sympathy with Germany and Hitler and hostility towards the United States. We rejected Haupt’s argument that this evidence was improperly admitted. While “[s]ueh testimony is to be scrutinized with care to be certain the statements are not expressions of mere lawful and permissible difference of opinion with our own government or quite proper appreciation of the land of birth,” we held that “these statements . . . clearly were admissible on the question of intent and adherence to the enemy.” Id., at 642. See also Price Waterhouse v. Hopkins, 490 U. S. 228, 251-252 (1989) (plurality opinion) (allowing evidentiary use of defendant’s speech in evaluating Title VII discrimination claim); Street v. New York, 894 U. S. 576, 594 (1969). For the foregoing reasons, we hold that Mitchell’s First Amendment rights were not violated by the application of the Wisconsin penalty-enhancement provision in sentencing him. The judgment of the Supreme Court of Wisconsin is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. At the time of Mitchell’s trial, the Wisconsin penalty-enhancement statute provided: “(1) If a person does all of the following, the penalties for the underlying crime are increased as provided in sub. (2): “(a) Commits a crime under chs. 939 to 948. “(b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property which is damaged or otherwise affected by the crime under par. (a) because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property. “(2)(a) If the crime committed under sub. (1) is ordinarily a misdemeanor other than a Class A misdemeanor, the revised maximum fine is $10,000 and the revised maximum period of imprisonment is one year in the county jail. “(b) If the crime committed under sub. (1) is ordinarily a Class A misdemeanor, the penalty increase under this section changes the status of the crime to a felony and the revised maximum fine is $10,000 and the revised maximum period of imprisonment is 2 years. “(c) If the crime committed under sub. (1) is a felony, the maximum fine prescribed by law for the crime may be increased by not more than $5,000 and the maximum period of imprisonment prescribed by law for the crime may be increased by not more than 5 years. “(3) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (1). “(4) This section does not apply to any crime if proof of race, religion, color, disability, sexual orientation, national origin or ancestry is required for a conviction for that crime.” Wis. Stat. §939.645 (1989-1990). The statute was amended in 1992, but the amendments are not at issue in this case. Mitchell also challenged the statute on Fourteenth Amendment equal protection and vagueness grounds. The Wisconsin Court of Appeals held that Mitchell waived his equal protection claim and rejected his vagueness challenge outright. 163 Wis. 2d 652, 473 N. W. 2d 1 (1991). The Wisconsin Supreme Court declined to address both claims. 169 Wis. 2d 153, 158, n. 2, 485 N. W. 2d 807, 809, n. 2 (1992). Mitchell renews his Fourteenth Amendment claims in this Court. But since they were not developed below and plainly fall outside of the question on which we granted certiorari, we do not reach them either. Two justices dissented. They concluded that the statute punished discriminatory acts, and not beliefs, and therefore would have upheld it. See 169 Wis. 2d, at 181, 485 N. W. 2d, at 819 (Abrahamson, J.); id., at 187-195, 485 N. W. 2d, at 821-825 (Bablitch, J.). Several States have enacted penalty-enhancement provisions similar to the Wisconsin statute at issue in this case. See, e. g., Cal. Penal Code Ann. §422.7 (West 1988 and Supp. 1993); Fla. Stat. §776.085 (1991); Mont. Code Ann. §46-6-222 (1992); Vt. Stat. Ann., Tit. 13, §1455 (Supp. 1992). Proposed federal legislation to the same effect passed the House of Representatives in 1992, H. R. 4797, 102d Cong., 2d Sess. (1992), but failed to pass the Senate, S. 2622, 102d Cong., 2d Sess. (1992). The state high courts are divided over the constitutionality of penalty-enhancement statutes and analogous statutes covering bias-motivated offenses. Compare, e. g., State v. Plowman, 314 Ore. 157, 838 P. 2d 568 (1992) (upholding Oregon statute), with State v. Wyant, 64 Ohio St. 3d 566, 597 N. E. 2d 450 (1992) (striking down Ohio statute); 169 Wis. 2d 153, 485 N. W. 2d 807 (1992) (case below) (striking down Wisconsin statute). According to amici, bias-motivated violence is on the rise throughout the United States. See, e. g., Brief for the National Asian Pacific American Legal Consortium et al. as Amici Curiae 5-11; Brief for the Anti-Defamation League et al. as Amici Curiae 4-7; Brief for the City of Atlanta et al. as Amici Curiae 3-12. In 1990, Congress enacted the Hate Crimes Statistics Act, Pub. L. 101-275, § 1(b)(1), 104 Stat. 140, codified at 28 U. S. C. §534 (note) (1988 ed., Supp. Ill), directing the Attorney General to compile data “about crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity.” Pursuant to the Act, the Federal Bureau of Investigation reported in January 1993, that 4,658 bias-motivated offenses were committed in 1991, including 1,614 incidents of intimidation, 1,301 incidents of vandalism, 796 simple assaults, 773 aggravated assaults, and 12 murders. See Brief for the Crown Heights Coalition et al. as Amici Curiae 1A-7A. Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:

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