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songer_civproc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. FIDELITY & DEPOSIT CO. OF MARYLAND v. HAY et al., Waterworks Commissioners. (Circuit Court of Appeals, Third Circuit. January 7, 1926.) No. 3388. 1. Subrogation <®^>28 — Surety, completing work of defaulting contractor, will be held to contract and bond obligation of contractor. Where contractor’s surety completed work after default of contractor, it has right of subrogation only after it has fully settled claims of person for whose benefit bond was given, and obligee may retain money to pay such persons as provided in contract. 2. Appeal and error <§=3850(2) — Waiver of jury and trial by judge makes his findings same as verdict of jury. Waiver of jury and trial by judge makes his findings and verdict same as verdict of jury. 3. Contracts <3=3288 — Surety, finishing work of defaulting contractor, not entitled to moneys already paid contractor on engineer’s certificate. Where surety finished work of defaulting contractor, refusal to surcharge employer with moneys paid contra etor on engineer’s certificate held proper, where by the contract engineer had determination of payments. 4. Appeal and error 1010(1) —Finding of trial judge without jury is conclusive. Finding that water commissioners acted within powers conferred by their agreement with contractor and surety in making certain payments for labor and material is conclusive, when not unwarranted. In Error to the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge. Suit by the Fidelity & Deposit Company of Maryland against James D. Hay and others, Commissioners of Waterworks of the City of Erie. Judgment for plaintiff for less relief than demanded, and plaintiff brings error. Affirmed. William P. Bolden and Horace Andrews, both of Cleveland, Ohio, and Arthur W. Mitchell, of Erie, Pa., for plaintiff in error. Charles H. English and F. B. Quinn, both of Erie, Pa. for defendants in error. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. BUFFINGTON, Circuit Judge. By writing of December 29, 1919, the Halfhill Construction Company, hereafter called “Contractor,” contracted with the commissioners of waterworks of Erie, Pa., here styled “Commissioners,” to build a reservoir. By such contract, Contractor agreed that “the said Commissioners shall have and are hereby given the authority to retain from any money due, or which may become due, to the said Contractor under this agreement, sufficient ‘money to pay for any labor or materials furnished in the construction of the work, providing satisfactory evidence is not furnished to the Commissioners that all such^abor and materials have been paid for.” The* Fidelity & Deposit Company of Maryland, hereafter called “Surety,” became surety on the bond of Contra,etor, in which the latter covenanted to “do and perform all and singular the obligations and things contained in said contract.” Thereafter Contractor began the work and continued it until October 6, 1920, when it defaulted, leaving it about one-half' done, and owing laborers and materialmen $20,-369.60. Thereupon Commissioners called upon Surety to finish the work, which Surety did, and turned over the completed reservoir to Commissioners. Thereupon Surety, without itself paying the foregoing stated claims of labor and material men, or allowing Commissioners, as provided in the contract, “to retain from any money due or which shall become due to the said Contractor, under this agreement, sufficient money to pay for any labor or materials furnished in the construction of the work,” claimed, and thereafter brought suit against Commissioners for, the entire unpaid contract price. Jury was waived and the casé tried by the judge, who found that “unpaid claims have been pre? sented for labor and material furnished to the Contractor in' the performance of the work under the contract and specifications before the time of default, amounting in the aggregate to the sum of $20,369.60. Of the amount in the hands of the Commissioners the sum of $333.85 is admitted to be duetto the plaintiff. The balance, amounting to $20,369.60, the Commissioners have withheld and refused to pay to the plaintiff as surety, because they claim the right to apply the same in payment of outstanding claims for labor and material furnished to the Contractor before its default, which claims are admitted to be due from the Halfhill Construction Company to such claimants.” In an opinion, the judge upheld the right of Commissioners to retain sufficient funds to pay the labor and material men and entered judgment for Surety for a small overplus balance, saying: “The plaintiff as surety is entitled (to judgment against the Commissioners for the sum of. $333.85, the amount found to be remaining in the hands of the Commissioners in excess of all amounts which the Commissioners had the right to pay upon unpaid claims for labor and material furnished to the Contractor in the construction of said reservoir.” He further denied the right of the plaintiff' to recover the additional sum of $5,526.90, under circumstances later set forth. Thereupon Surety sued out this writ. Addressing ourselves to the retention of money to meet the labor and material claims, we think much confusion is caused by injecting subrogation into the case. The question was not onq of subrogation, but of a contract and bond given by a contractor, conditioned that the contractor “do and perform all and singular the obligations and things contained in said contract,” one of which things was that Commissioners were given authority “to retain from -any money due or which may become due to the said Contractor, under this agreement, sufficient money to pay for any labor or materials,” etc. When Contractor stopped, Surety simply took its place, and went on to finish the work. What its rights may have been if it, too, had declined to finish and Commissioners had completed, are matters and questions not before us. What did happen was that Surety stepped into Contractor’s shoes and finished the work, and neither Surety nor Commissioners were in any different .position than if Contractor had itself finished the work -and called on Commissioners to settle. In either case, fulfillment of contract obligations by Contractor, or by its Surety for it, was a preliminary to a demand for settlement, and as Contractor, if it had completed the reservoir, could not have taken the unpaid money out of the hands of Commissioners without paying the labor and material men, no more can Surety, who completed the work. The question is one of the completion of Contractor’s contract, and until that is done no question of subrogation arises. It follows, therefore, the judge committed no error in holding Surety to the contract and bond obligation of Contractor, and that “the surety .has this right of subrogation, however, only after it has fully satisfied the claims of the person for whose benefit the bond was given.” Turning to the remaining questions, they arise by virtue of the court’s refusal to increase the verdict found for the plaintiff by an additonal amount of $5,526.90. In that connection, we note we are here dealing with a writ of error to review a verdict, for the waiver of a jury and, trial by judge makes his finding’s and verdict the same as a verdict of a jury. So viewing- the matter, we fail to find' error in the judge’s action. The first item involved is $800, tile cost of a roadway built by Contractor and paid for by Commissioners, which sum Surety now seeks to surcharge with, and again recover from, Commissioners. The judge found that by the contract the engineer had the determination of payments and his certificate was conclusive; that the roadway, while not specified in the contract, was “necessary, and their existence inured to the benefit, not only of the Contractor, but also of that of any successor to him who should take up the work.” Having acted on the certificate of the engineer — a course to which no objection was made when Surety undertook to finish the work — the judge declined, and rightfully, we think, to surcharge Commissioners for moneys already paid Contractor on the engineer’s certificate. As to the remaining sum of $4,726.90, with which Surety seeks to surcharge Commissioners as improvidently paid Contractor or the labor and material men, we shall not attempt to discuss the matter in detail. It suffices l.o say it grew out of certain extra work which Contractor undertook, Commissioners furnishing the money to pay labor and materia] men and agreeing to pay Contractor 15 per cent, extra thereon as its profit, when the reservoir was completed. Contractor not only failed to pay the labor and material men all the money advanced .by Commissioners, but had not finished the extra work when Surety took on its completion. Thereafter Surety and Commissioners agreed to certain payments being made to some, but not all, of these labor and material men. Evidence of all these dealings was given at the trial and accountants were called on both sides, who differed in view as to proper ways of accounting and settling, and the judge, after discussing the different contentions, finally held that “in paying these creditors and keeping the work moving thereby, the water commissioners were acting within the powers conferred by their agreement, both with the Contractor and with the Surety.” In this determination of the trial judge, which, as we have said, stands on the same basis as the verdict of a jury, Surety has not satisfied us there is any error of law, misconstruclion of agreement or unwarranted finding of fact. Like the verdict of a jury, this verdict must therefore stand. Accordingly we affirm the judgment entered thereon. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? 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. ALLIED ARTISTS PICTURE CORP., Plaintiff, and Avco Embassy Pictures Corp., et al., Plaintiffs-Appellants, Cross-Appellees, v. James A. RHODES, Defendant-Appellee, Cross-Appellant. Nos. 80-3566, 80-3600. United States Court of Appeals, Sixth Circuit. Argued Oct. 7, 1981. Decided June 4, 1982. Rehearings and Rehearings En Banc Denied Aug. 17, 1982. Earl F. Morris, Harry Wright, III, Porter, Wright, Morris & Arthur, Columbus, Ohio, Robert W. Trafford, Dixon F. Miller, Alan Dershowitz, Cambridge, Mass., for Avco Embassy Pictures Corp., et al. William J. Brown, Atty. Gen. of Ohio, Alan C. Witten, Asst. Atty. Gen., Gregory E. Young, Antitrust Section, Columbus, Ohio, for Rhodes. Before LIVELY and MERRITT, Circuit Judges, and CECIL, Senior Circuit Judge. MERRITT, Circuit Judge. An Ohio statute regulating the marketing of motion pictures outlaws “blind bidding” and instead requires suppliers of motion pictures to screen their films in Ohio for all interested theater operators prior to negotiations or bidding. The second feature of the statute under attack is a set of competitive bidding guidelines. Although the statute allows producers and distributors to market films to exhibitors through negotiations rather than competitive bidding, the statute establishes guidelines for competitive bidding if distributors choose bidding as the method of marketing a film. In particular, the statute requires a disclosure of invitation-to-bid lists and the bids themselves; and if a distributor “rejects all bids submitted pursuant to an invitation to bid, he shall issue a new invitation to bid” rather than negotiate individual contracts with exhibitors. The third feature of the statute under attack significantly restricts the distributors’ ability to charge theaters advance and guaranteed payments in addition to charging a percentage of box office receipts. Plaintiff-appellants — the country’s nine major producers and distributors of films, who account for approximately ninety percent of film industry revenues — contend that the challenged provisions abridge free speech and violate the commerce clause as well as the antitrust and copyright laws. In a comprehensive opinion describing in detail the motion picture industry and its marketing practices, District Judge Duncan found no violation of federal law. 496 F.Supp. 408 (S.D.Ohio 1980). We uphold as valid the trade screening requirement and the bidding guidelines including the rebidding requirement. We remand for further consideration under the commerce clause the provisions of the statute relating to pricing methods. I. The Ohio statute, like similar statutes in at least eighteen other states, is an out- growth of the historical tug-of-war between the major companies that produce and supply motion pictures and the theaters where they are shown. Judge Duncan found that the basic state interests supporting the statute are the need to provide exhibitors with sufficient information to assess new films and reject poor ones, the need to assure fairness in bidding procedures to counteract deceptive and unfair trade practices, and the need to redress a perceived imbalance in the bargaining or market power of the major producers and the exhibitors. The statute does not have a preamble or any recorded legislative history which clarifies its purposes or articulates the underlying state interests. We are left, as was the District Court, to articulate those purposes from the text itself. The State combines several distinct arguments in support of its view that additional information about films and fair bidding procedures are needed and that exhibitors lack adequate negotiating strength. Judge Duncan found that under blind bidding the information available to the exhibitor is often insufficient to judge the quality of the film and at times deceptive. He found that the purpose of the bidding guidelines is to counteract deception, collusion and unfair trade practices. Judge Duncan also found that a purpose of the statute is to shift risks of loss to distributors in order to redress an imbalance in bargaining power. The perceived imbalance in bargaining power arises from the fact that movie production and distribution are concentrated in the hands of a few large companies while the theaters are more widely held by smaller entities. The story and the film techniques used, as well as the star system promoted by the producers, give some pictures a unique quality; and the copyright laws give the distributor a monopoly in the market for individual films. Movie production for network and cable television and video cassettes bypasses theaters and gives producers a strong additional market for films. As home viewing has increased, the number of theaters has declined creating an atmosphere of market uncertainty and insecurity for exhibitors. In addition, in the 1940s and 1950s federal antitrust decrees prohibited certain tying arrangements, refusals to deal and reciprocal arrangements engaged in by producers, and the decrees required producers to divest themselves of ownership of theater circuits through which they controlled exhibition of first run movies. In effect the exhibitors and the State claim that these decrees have not adequately redressed the balance of bargaining power between the two sides and that state legislation is needed to shift the risk of loss. The producers argue that the perceived need for additional information and fairer bidding procedures does not exist. They argue that the perceived imbalance in bargaining power also does not exist, and that even if it does, the State’s attempt to shift risks away from in-state exhibitors to out-of-state distributors — one legislative purpose found by Judge Duncan to underlie the statute — is invalid under the commerce clause. They point out that neither the legislature nor the court below found any antitrust liability, monopoly power, predatory pricing or any “coercive or collusive distributor conduct,” nor “any fraudulent or deceptive purpose in blind bidding.” (Appellants Brief at 9.) The producers argue that the prohibition of “blind bidding” — or as they prefer to call it, “advanced licensing” — and the restrictions on bidding procedure significantly delay the exhibition of films in “a complex, high risk business requiring multi-million dollar investments, which depend on the vagaries of public taste,” “fresh” material, and “timely release.” (Id. at 3-5.) They argue that the statute significantly increases distributor costs and interferes with customary planning and national promotional efforts, particularly “wide release,” i.e., the simultaneous release of a film in theaters across the country. They assert that the statute simply seeks “to protect the profitability of local business [theaters] at the expense of out of state business [producers and distributors]” (id. at 10) and reduces competition among exhibitors for films by limiting advance and guaranteed payments and by requiring full disclosure of bidders and the terms of bids. They contend that given the absence of any legitimate state interest in regulating an interstate communications industry, Ohio has exceeded its constitutional authority. II. THE VALIDITY OF THE TRADE SCREENING REQUIREMENT In United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948), the seminal antitrust case which restructured the film industry, see M. Conant, Antitrust in the Motion Picture Industry (1960), the Supreme Court defined “blind bidding” as the “practice whereby a distributor licenses a feature before the exhibitor is afforded an opportunity to view it.” 334 U.S. 157, n. 11, 68 S.Ct. at 929, n. 11. The Court approved a district court antitrust decree designed “to remedy the problems” —mainly misrepresentation and deceptive trade practices — “created by that practice.” Id. The Court quoted language from the decree setting out some of the reasons exhibitors need accurate information about films before licensing negotiations take place. It appears from the Supreme Court opinion and from the record in this case that potential abuses arising from blind bidding have been a legitimate concern of exhibitors for many years and a bone of contention within the industry. Judge Duncan found that the exhibitors’ need for accurate information about films before they buy is real and that trade screening is the best remedy. 496 F.Supp. at 421. Judge Duncan stated that “by permitting Ohio exhibitors to view the film before bidding, it permits the exhibitors to use their own business judgment in determining whether and on what terms, to bid for a motion picture license. It effectively removes the unfairness inherent in the blind bidding process exhibitors described as ‘buying a pig in a poke.’ ” 496 F.Supp. at 431. State statutes repealing the doctrine of caveat emptor in its various forms in order to restrain possible deceptive trade practice in various industries are common. Statutes which require that buyers and sellers provide each other with accurate information about their products and services in order to counteract deceptive and misleading practices are based on legitimate state interests. The trade screening requirement here is a variation on that statutory theme. The fact that one purpose of trade screening may be, as Judge Duncan found, to redress an imbalance in bargaining power in favor of in-state exhibitors — a state interest we find highly suspect under the commerce clause (as explained in section IV below) — does not render invalid the state’s legitimate interest in restraining deceptive trade practices by encouraging the flow of accurate information prior to contracting. The District Court found as fact that the delays in film release caused by the trade screening requirement, although possible, appear to be infrequent and relatively minor in nature. We do not view this finding as clearly erroneous. Trade screening has been used in the industry for many years; and, as Judge Duncan found, it is content-neutral under the first amendment. We agree with the District Judge that in light of the “problems” of deception that it tends “to remedy” — using the words of the Supreme Court in Paramount, 334 U.S. at 157, n.11, 68 S.Ct. at 929, n. 11 — it does not impose undue burdens on producers and distributors under that amendment, see Konigsberg v. State Bar of California, 366 U.S. 36 at 50-51, 81 S.Ct. 997, at 1006-1007, 6 L.Ed.2d 105 (1961); United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968); or the commerce clause, see Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970); Exxon Corp. v. Governor of Md., 437 U.S. 117, 126-28, 98 S.Ct. 2207, 2214-2215, 57 L.Ed.2d 91 (1978). Like the statute upheld in Exxon prohibiting certain types of vertical integration in the gasoline business, the trade screening requirement is facially neutral and does not distinguish between in-state and out-of-state distributors. It is true, however, as in Exxon, that its impact falls on out-of-state business because there are no in-state producers and distributors. This fact does not invalidate the statute, as the Court held in Exxon, but it may call for a more penetrating review of the burdens imposed on commerce and the state interest served. As previously noted, Ohio has an easily explained, traditional state interest supporting the trade screening requirement; and, like the District Court, we do not find a less restrictive alternative that would serve that purpose. Nor does the trade screening requirement violate restrictions implicitly placed upon state regulatory authority by the antitrust and copyright laws. The prohibition of blind bidding insures more informed and rational decision making in the marketplace. The anti-competitive effects that may be incidental to trade screening— that exhibitors willing to blind bid are now forbidden to do so — are not the types of restraints the antitrust laws were designed to prohibit. For, as the Supreme Court noted in Exxon, “if an adverse effect on competition were, in and of itself, enough to render a state statute invalid, the State’s power to engage in economic regulation would effectively be destroyed.” 437 U.S. at 133, 98 S.Ct. at 2217. Even if the prohibition of “blind bidding” were shown to require behavior inconsistent with the Sherman Act, Ohio’s statute regulating motion picture licensing would fall within the “state action exemption” to the antitrust laws. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943); New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. 96, 109, 99 S.Ct. 403, 411, 58 L.Ed.2d 361 (1978). There is no question that the trade screening requirement is “clearly articulated and affirmatively expressed [by the state legislature] designed to displace unfettered business freedom” in methods of licensing motion pictures. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. at 109, 99 S.Ct. at 411. Furthermore, the trade screening requirement is entirely self executing. This feature of the statute delegates no authority to either private parties or non-state agencies to control price, supply, demand, or market entry. Thus the “active state supervision” requirement discussed in California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., et al., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), need not be present. The state need not itself conduct the screening in order for the exemption to apply. This is not a case in which “the state simply authorizes price-setting and enforces the prices set by private parties,” as in Midcal, 100 S.Ct. at 943, or in which “anticompetitive conduct is ‘promoted’ by state action,” id., but is rather a case in which conduct is “compelled by direction of the State action as a sovereign,” id. In such cases the self-executing statute itself plus judicial enforcement satisfies the supervision requirement. Finally, turning to the copyright preemption challenge, we do not find authority for the argument that state trade regulation which affects distribution procedures and, indirectly, monetary returns from copyrighted property is invalidated implicitly or explicitly by the terms of the Copyright Act, 17 U.S.C. § 101 et seq. or the copyright clause. After thorough analysis, Judge Duncan rejected each of these claims, 496 F.Supp. at 441 — 48. We agree with his decision and his analysis. III. THE VALIDITY OF THE COMPETITIVE BIDDING GUIDELINES Competitive bidding for films is not mandatory in Ohio under the statute. It is a method of selling films to exhibitors which may be used by distributors in lieu of negotiations. The Ohio competitive bidding guidelines require disclosure of invitation to bid lists and the bids themselves after they are opened; and if all bids are rejected, the distributor must rebid the film rather than negotiate with exhibitors. We see no federal constitutional or statutory infirmity in these guidelines. Competitive bidding, like trade screening, has been widely used in the film industry for many years. See United States v. Paramount Pictures, 334 U.S. 131, 161-66, 68 S.Ct. 915, 931-933, 92 L.Ed. 1260 (1948). If the distributor chooses to use this method of selling, the process should be fair, and that is what the guidelines are designed to insure. The disclosure provisions are not burdensome and are designed to counteract deception and unfair manipulation of the bidding process. The rebidding requirement has a similar purpose. It keeps producers from deceptively putting films out on competitive bid in order simply to test the market without any real intention of licensing the film to the best bidders. The rebid requirement is designed to prevent this misleading trade practice. The District Court found that the incremental burdens that these provisions placed upon the licensing process are minimal — especially since little change from prevailing bidding practices is required and any delays because of possible rebidding, if they could not be avoided, would be rare. 496 F.Supp. at 438-440. As with the trade screening requirement, therefore, we find that no undue burdens are placed upon the rights of producers and distributors under either the first amendment or the commerce clause. The bidding procedures, like the trade screening requirement, do not interfere with any of the rights of the producer-distributors under the copyright statutes, and do not sanction any collusive behavior that is in violation of the antitrust laws. The open bidding requirements challenged by the producers require the disclosure of all bids after they have been considered. Each film is different, and the availability of information about prior bids does not stabilize prices. Even in subsequent rounds of bidding for the same film, if that should become necessary, the competition among the exhibitors makes price stabilization unlikely. Misuse of price information and collusion among exhibitors is not sanctioned by the Act, and as the District Court points out, such conduct would, of course, be subject to the strictures of the antitrust laws. 496 F.Supp. at 449-450. IV. THE VALIDITY OF THE PROHIBITION OF ADVANCE AND GUARANTEED PAYMENTS The statutory pricing prohibition aimed at advance and guaranteed payments stands on less solid ground than the trade screening requirement and the bidding guidelines. The trade screening and bidding provisions foster disclosure of information and fair bidding procedures. Making more information available in the marketplace and increasing the regularity and orderliness of the bidding process leads presumably to more intelligent decision making. The orderly flow of accurate information tends to restrain misleading, fraudulent or otherwise unfair trade practices. The same reasoning does not support the pricing provisions. Outlawing advance and guaranteed payments when box office receipts are used as a measure of payment appears to be simply a restriction on price. So far as we can tell from the present record, it rests solely on a perceived imbalance in bargaining power between distributors and exhibitors. Judge Duncan found that “primarily the guarantee is ... a risk shifting device.” 496 F.Supp. at 418. He did not identify any other state interest which supports these provisions. We understand this to mean that the statutory purpose is to increase the economic leverage of the exhibitors in order to redress a bargaining imbalance, or in other words, to increase the profits, or reduce the losses, of the exhibitors — who are local — at the expense of the distributors— who are from out of state. Judge Duncan found this state interest sufficient under the commerce clause, in part under the authority of New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 439 U.S. 96, 99 S.Ct. 403, 58 L.Ed.2d 361 (1978), a case upholding as a legitimate state interest under the due process clause an effort to redress the balance of bargaining power of automobile dealers vis-a-vis the manufacturers. The commerce clause analysis in Baldwin v. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935), appears to be more to the point for purposes of this case. There the Supreme Court was faced with similar pricing regulation of the milk industry in New England. In order to protect the economic welfare of its dairymen, New York enacted a “system of minimum prices to be paid by dealers to producers,” both in-state and out-of-state. The New York statute was drafted in such a way as to be neutral and nondiscriminatory on its face, just as is the Ohio statute, although the purpose of both was to help local interests. On the face of the two statutes, neither class involved (milk producers in Seelig, movie producers in the instant case) are treated differently depending on whether they are in or out of state. In Seelig, a dealer paid less than the minimum price for milk to his Vermont producers. Justice Cardozo for a unanimous court first recognized the validity of the state’s interest in the welfare of dairymen under the due process clause under the doctrine of Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934). See Seelig, 294 U.S. at 519, 55 S.Ct. at 498. Nevertheless, the Court held the pricing system invalid under the commerce clause: New York asserts her power to outlaw milk so introduced by prohibiting its sale thereafter if the price that has been paid for it to the farmers of Vermont is less than would be owing in like circumstances to farmers in New York.... Such a power, if exerted, will set a barrier to traffic between one state and another as effective as if custom duties, equal to the price differential, had been laid upon the thing transported.... Impost and duties upon interstate commerce are placed beyond the power of the state, without the mention of an exception, by the provision committing commerce of that order to the power of the Congress. 294 U.S. 521-22, 55 S.Ct. at 499-500. The Court in Seelig acknowledged that the state could regulate interstate milk for health and safety reasons and to prevent “fraudulent substitution” or other “deceptive” practices. But “price security,” the Court said, is not a state interest under the commerce clause equivalent to “sanitary security.” Id. at 523, 55 S.Ct. at 500. Making “its inhabitants healthy,” Justice Cardozo wrote, is different from making “them rich.” Id. The Court concluded: [CJommerce between the states is burdened unduly when one state regulates by indirection the prices to be paid to producers in another, in the faith that augmentation of prices will lift up the level of economic welfare.... Id. at 524, 55 S.Ct. at 500. The principle of Seelig appears to be that our competitive national economy is an equilibrium system of production and consumption, supply and demand, based on price; and in the absence of a strong justification, interference by the states in the pricing system to shift the balance of economic power to producers or dealers, farmers or processors, distributors or exhibitors cannot be permitted when it burdens the flow of interstate commerce. In the instant case we have been presented with no claim or finding of collusion, monopoly power, predatory pricing of similar justification — other than the economic welfare of exhibitors — for a restriction on pricing. Parker v. Brown, 317 U.S. 341, 364, 63 S.Ct. 307, 320, 87 L.Ed. 315 (1943) and Exxon Corp. v. Governor of Md., 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978) do not support a different analysis under the commerce clause. Although it is true that in Parker the California statute placed severe restrictions on the pricing of raisins, the Court found “significant” under the commerce clause the fact that “the national government has contributed to these efforts either by its establishment of marketing programs pursuant to act of Congress or by aiding programs sponsored by the state.” 317 U.S. at 365, 63 S.Ct. at 320. The negative aspect of the commerce clause does not come into play as a bar when Congress has affirmatively acted to authorize or approve the state conduct in question. In Exxon the Maryland statute preventing vertical integration of certain aspects of the gasoline business did not attempt to interfere or restrict price in the marketplace, and the purpose of the statute was not to redress an imbalance in bargaining power. Thus we conclude that a state’s interest in righting a bargaining imbalance, standing alone, is not sufficient under the commerce clause to permit direct interference with pricing where it burdens interstate commerce. We remand the case to the District Court for further consideration and fact finding under the test established in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970) respecting the “extent of the burden” on interstate commerce and the question whether any other “legitimate local public interest” is present to support the pricing provisions of the statute under the commerce clause. The test established in Pike v. Bruce Church, supra, is as follows: Where the [challenged state] statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 U.S. 440, 443. [80 S.Ct. 813, 815, 4 L.Ed.2d 852]. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved and on whether it could be promoted as well with a lesser impact on interstate activities. 397 U.S. at 142, 90 S.Ct. at 847. In view of our analysis, the best course to follow is to remand this aspect of the case to the District Court for further consideration. We cannot be sure on the basis of the present record whether there are other, as yet unidentified, state interests which support the pricing restriction; and we do not find in the record evidence that would allow us to assess with confidence the nature and “extent of the burden” imposed by the pricing restrictions. V. Accordingly, the Court concludes that the judgment of the District Court should be affirmed except for its ruling on subsections (B) and (C) of Section 1333.06 of the Ohio statute. We remand the case to the District Court for further consideration of the validity of these two subsections in accordance with the analysis set out in this opinion. . The pertinent provisions of the statute are as follows: § 1333.05 [Definitions.] As used in sections 1333.05 to 1333.07 of the Revised Code: (H) “Trade screening” means the showing of a motion picture by a distributor in one of the five municipal corporations within this state having the largest population which showing is open to any exhibitor interested in exhibiting the motion picture. (I) “Blind bidding” means ... negotiating ... or agreeing to terms for the purpose of entering into a license agreement prior to a trade screening of the motion picture that is the subject of the agreement. § 1333.06 [Certain practices of distributors prohibited; effect on license agreements.] (A) No distributor shall engage in blind bidding. (B) No distributor shall condition the granting or execution of a license agreement on a guarantee of a minimum payment to the distributor. If the exhibitor is required by the license agreement to make any payment to the distributor that is based on the attendance or the box office receipts at a theater at which the motion picture is exhibited. (C) No distributor shall condition the granting or execution of a license agreement on the exhibitor’s advancing, more than fourteen days prior to his first exhibition of a motion picture, any money that is to be used as security of the exhibitor’s performance of the license agreement or is to be applied to any payments that the exhibitor is required by the agreement to make to the distributor. (D) Any provision of a license agreement that waives any of the prohibitions of, or fails to comply with, this section or section 1333.-07 of the Revised Code is void and unenforceable. Any license agreement that fails to comply with this section and section 1333.07 of the Revised Code is voidable by the exhibitor, if the exhibitor gives the distributor written notice, prior to the exhibitor’s first exhibition of the motion picture that is the subject of the agreement, of his intent to have the agreement voided. § 1333.07 [Invitation to exhibitors to bid; inspection, notice.] (A) If bids are solicited from exhibitors ... the invitation to bid shall specify: (1) The number and length of runs ... (3) The geographic area for each run; (4) The names of sill exhibitors who are being given an invitation to bid____ (B) [The invitation to bid shall include] the date, time, and location of the trade screening of the motion picture that is the subject of the invitation to bid. (C) Every distributor shall furnish to all exhibitors in this state reasonable and uniform notice of all trade screenings that are held within this state of motion pictures that he is distributing. (D) All bids shall be submitted to the distributor in written form. The distributor or his agent shall open all bids at the same time and in the presence of at least one of the exhibitors, or the agent of an exhibitor, who has submitted a bid. (E) Any exhibitor, or the agent of an exhibitor, who submits a bid for a particular run of a motion picture may, at reasonable times within sixty days after the bid is opened, examine any bid that is made for the same run of the motion picture by another exhibitor ... even if the distributor rejects all bids that are submitted. Within seven business days after a bid ... is accepted, the distributor shall notify in writing each exhibitor who submitted a bid for that run of the motion picture of the terms of the accepted bid and the identity of the successful bidder.... (F) If a distributor issues invitations to bid for a motion picture, he shall not enter into a license agreement for the exhibition of the motion picture except by means of the bidding process specified in this section. If the distributor rejects all bids submitted pursuant to an invitation to bid, he shall notify all exhibitors who submitted bids that he rejected all bids and shall issue a new invitation to bid. . The states which had enacted similar statutes as of mid-1981 include Alabama, Georgia, Idaho, Louisiana, Maine, Massachusetts, Missouri, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Virginia, Washington, West Virginia. See Joint App. at C-166. All of these states prohibit blind bidding. Thirteen states of the eighteen states have also adopted detailed provisions regulating the bidding process: Alabama, Louisiana, Maine, Massachusetts, Missouri, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Virginia, Washington, West Virginia. Four states (Idaho, Utah, Oklahoma and Pennsylvania) have chosen to restrict guarantees and only two (Idaho and Pennsylvania) have restrictions on advances. The Ohio statute which contains all three restrictions is among the more restrictive statutes. The Pennsylvania statute (more restrictive than Ohio’s) was held by a district court to be invalid under the first amendment and violative of federal rights secured by the copyright laws. Associated Film Dist. Corp. v. Thornburgh, 520 F.Supp. 971 (1981). By contrast, a challenge to Utah’s proscription of guarantees was rejected by the district court on the grounds that no significant burden was placed on first amendment rights or upon interstate commerce. Warner Bros. v. Wilkinson, 533 F.Supp. 105 (C.D.Utah 1982). . See Bates v. State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), and the discussion of those cases in Midcal, 100 S.Ct. 943; see also Areeda, Antitrust Immunity for “State Action” after Lafayette, 95 Harv.L.Rev. 435, 436-440 & 445 n.50 (1981); Posner, The Proper Relationship Between State Regulation and the Antitrust Laws, 49 N.Y.U.L.Rev. 693 (1974). . The producers argue that the Ohio motion picture licensing statute is preempted (1) by the express terms of § 301 of the Copyright Act, 17 U.S.C. § 301, (2) because it interferes with distribution rights granted by § 106 of the Copyright Act, and (3) with the purposes of copyright law as embodied in copyright clause, Art. I, § 8. . The plaintiffs brought this action for declaratory and injunctive relief against Governor Rhodes of Ohio. In a cross-appeal the Governor renews his contention that he is immune from suit under the eleventh amendment. As the District Court noted in its thorough study of the issue, 473 F.Supp. 560, 556-570; 496 F.Supp. 408, 429-27, the question whether the Governor has exceeded the scope of the eleventh amendment immunity accorded to state officials is controlled by Ex Parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 453-154, 52 L.Ed. 714 (1908). Young requires that the state officer sued have “some connection” with the enforcement of the allegedly unconstitutional Act. Even in the absence of specific state enforcement provisions, the substantial public interest in enforcing the trade practices legislation involved here places a significant obligation upon the Governor to use his general authority to see that state laws are enforced, see Ohio Constit. Art. Ill, § 6; Ohio Rev.Code Ann. § 2733.02 (Page 1981) (concerning equitable actions against corporations violating state laws). We thus find that the Governor has sufficient connection with the enforcement of the Act that he falls outside the scope of eleventh amendment protection and may be sued for the declaratory and injunctive relief requested here. Were this action unavailable to the plaintiffs, they would be unable to vindicate the alleged infringement of their constitutional rights without first violating an Ohio statute requiring a significant change in their business conduct. Such a result is clearly what the doctrine in Ex Parte Young was in part designed to avoid. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_appel1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". BOSTON & MAINE CORPORATION, Plaintiff, Appellant, v. TOWN OF HAMPTON, Defendant, Appellee. No. 92-1832. United States Court of Appeals, First Circuit. Heard Dec. 9, 1992. Decided March 5, 1993. Ernest J. Babcock, Portland, ME, with whom Elizabeth A. Germani, Providence, and Friedman & Babcock, Portland, ME, were on brief for plaintiff, appellant. Thomas F. Kehr, Manchester, with whom Craig L. Staples and Cleveland, Waters and Bass, P.A., Concord, NH, were on brief for appellee. Before TORRUELLA and CYR, Circuit Judges, and KEETON, District Judge. Of the District of Massachusetts, sitting by designation. KEETON, District Judge. I. Introduction On a snowy day in March, 1988, Ms. Jeanne Lynch was driving her car on Exe-ter Road in Hampton, New Hampshire. At the approach to a bridge, her car skidded over an icy patch of road. She lost control. The car crashed through the side railing of the bridge and fell twenty feet onto the railroad tracks below. The bridge and the railroad tracks were owned by Boston and Maine Corporation (“B & M”). In July 1989, Lynch sued B & M in the Superior Court of New Hampshire (the “Lynch case”). She chose not to sue the Town of Hampton (“Hampton”). Though the record before us is not crystal clear (and because the matter is not decisive, we have not called upon counsel to clarify it), we understand that B & M then filed a separate action against Hampton in the Superior Court, seeking contribution and indemnity. (Hampton Brief at 2.) Also, on November 3,1989 B & M filed in the Lynch case a “motion to join the Town of Hampton as a direct defendant as to Ms. Lynch_” (Id.) This B & M motion apparently did not assert any claim by B & M against Hampton. In December 1989, B & M moved in the Lynch case for “a nonsuit without prejudice” to its contribution and indemnification rights against Hampton. (Id.) The record before us does not disclose the precise intent or effect of this motion of B & M, as defendant, to have another entity joined as a “direct defendant,” when the plaintiff, Lynch, did not choose to make that entity a defendant. It does appear, however, that at the time of this motion in the Lynch case, B & M did not attempt to plead any claim against Hampton for contribution or indemnity in the Lynch case. Apparently B & M was then intending to pursue its separate action against Hampton in the Superior Court. When the Superior Court, in December 1989, allowed B & M’s motion for a “non-suit” in the Lynch case, apparently the Superior Court and the parties treated this as an order eliminating Hampton as a “direct defendant as to Ms. Lynch.” Trial in the Lynch case was to begin on April 1, 1991. Shortly before that date, Lynch settled with B & M. Hampton asserts that a release of any claim by Lynch against Hampton was part of this settlement. B & M, contending that its rights of contribution and indemnity matured when it settled with Lynch, then attempted in the Lynch case to proceed against Hampton to recover from Hampton all or some of the amounts B & M paid to Lynch in settlement. Hampton, having been a defendant only as to Lynch (and then only on the motion of B & M), moved to dismiss after Lynch settled with B & M. The Superior Court granted this motion over B & M’s objection. After the Superior Court dismissed the Lynch case, B & M filed (in 1991), in the United States District Court for the District of New Hampshire, a civil action against Hampton for contribution and indemnity. In September 1991, Hampton moved to dismiss the federal action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, citing B & M’s failure to present factual allegations supporting a claim that Hampton had actual notice of a hazardous condition at the time and place of Lynch’s accident. After some procedural maneuvering, the district court dismissed the complaint for failure to allege facts sufficient to support a claim of actual notice and opportunity to correct. The Clerk accordingly entered final judgment against B & M. B & M’s appeal from this final judgment presents two issues. First, did the district court err in concluding that the applicable common law of New Hampshire requires actual notice of a hazardous condition and a reasonable opportunity to correct the hazardous condition before a municipality may be held liable for injuries caused by allegedly inadequate winter maintenance of its roadways? Second, did the district court commit reversible error in dismissing for failure to plead with particularity facts sufficient to meet the substantive law standard of municipal liability in New Hampshire? For the reasons that follow, we affirm the judgment of the district court. II. Applicable Standard of Care for Municipal Liability A. Standard of Review “[A] court of appeals should review de novo a district court’s determination of state law.” Salve Regina College v. Russell, — U.S. -, -, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); G.D. v. Westmoreland School Dist., 930 F.2d 942, 946 (1st Cir.1991). “When de novo review is compelled, no form of appellate deference is acceptable.” Salve Regina, — U.S. at -, 111 S.Ct. at 1224. Nevertheless, “[i]n a case where the controlling question of state law remains unsettled, it is not unreasonable to assume that the considered judgment of the court of appeals frequently will coincide with the reasoned determination of the district court.” Id. — U.S. at-, 111 at 1224. This is such a case. Although we reach the same holding as did the district court regarding state law, we also note that the precise issue of state law has not been squarely answered in state decisions. Accordingly, we address the issue fully. B. Common Law Duty of Actual Notice and Reasonable Opportunity to Correct Almost two decades ago, the New Hampshire Supreme Court abrogated the common law partial immunity from liability historically available to municipalities. Merrill v. City of Manchester, 114 N.H. 722, 332 A.2d 378 (1974). In abolishing the judicially created rule of immunity the Court did not impose “absolute or strict liability on cities and towns.” Id. 332 A.2d at 383. Instead, it concluded that “municipalities should be held to the same safety standards as other citizens and that they are subject to the same rules of liability as private corporations.” City of Dover v. Imperial Casualty & Indemnity Co., 133 N.H. 109, 575 A.2d 1280, 1283 (1990) (citing Merrill, 332 A.2d at 383). Standing alone, however, this quoted statement of the general rule of municipal liability in New Hampshire under the common law of negligence can easily be misunderstood. At the same time the Court declared this rule in Merrill, it also made clear that the general rule of liability for negligence does not apply to “acts and omissions constituting [either] (a) the exercise of a legislative or judicial function, [or] (b) the exercise of an executive of planning function, involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion.” Merrill, 332 A.2d at 383. We need not be concerned about whether these two qualifications are correctly described as “exceptions” or “deviations” from the scope of liability of private corporations or instead as merely applications of ordinary principles regarding the duty of reasonable care in the distinctive circumstances of municipal actions and functions. Unlike individuals and private corporations engaged solely in proprietary activities, municipal entities also have legislative, judicial, and executive functions. They are charged with responsibility for acting to represent the public and serve the public interest to an extent and in ways beyond any duty or authority of a private corporation. Thus, for reasons developed more fully in later sections of this opinion, the requirements of actual notice and opportunity to correct hazards on municipal roads are entirely compatible with the declaration that municipalities are held to the same standards of conduct and the same rules of tort liability as private corporations and other citizens. In any event, we conclude that insofar as municipal liability is governed by judicial decisions rather than statutes, the distinctive limitations on the scope of municipal liability stated in Merrill have remained firmly in place in the law of New Hampshire ever since Merrill was decided. C. Statutory Partial Preservation of the Common Law Immunity In Merrill, the Court noted that “the legislature has authority to specify the terms and conditions of suit against cities and towns, limit the amount of recovery, or take any other action which in its wisdom it may deem proper.” Merrill, 332 A.2d at 384. The Court, accordingly, stayed for six months the effective date of its abrogation of common law immunity “[t]o permit the legislature to take action in regard to the social and economic factors resulting from [the] decision.” Id. In response to Merrill, the legislature enacted RSA 507-B. 1975 N.H.Laws, ch. 483. Subject to exceptions not relevant here, this statute purportedly preserved for municipalities, in part, the scope of the immunity that the decision in Merrill would otherwise have destroyed. For- example, the statute declared that municipalities would not be liable for accidents occurring on “public sidewalks, streets, [and] highways_” N.H.Rev.Stat.Ann. 507-B:2, I (1975). D. Judicial Declaration of Unconstitutionality of the Statutory Preservation of Immunity Neither by later legislation nor by judicial decision had any change in the declared statutory preservation of partial protection of municipalities against tort liability been announced before the time of Lynch’s accident in 1988. In 1990, however, the Supreme Court of New Hampshire declared the 1975 statute unconstitutional, on the ground that such a broad exemption from liability violated the equal protection provisions of the New Hampshire Constitution. City of Dover, 575 A.2d at 1286-87 (citing N.H. Const. Part L, Arts. II and XII). E. Later Statutes and Court Opinions In response to the Court’s invalidation, in City of Dover, of RSA 507-B:2, I, “the 1991 session of the legislature amended the laws regarding immunity for public highways to provide that municipalities would only be liable for highway insufficiencies about which they had received written or actual notice and failed to take appropriate action.” 14 Peter J. Loughlin, New Hampshire Practice § 1029 (1990 & Supp.1991) (citing 1991 N.H.Laws, ch. 385); see also Opinion of the Justices, 134 N.H. 266, 592 A.2d 180 (1991) (issuing an advisory opinion that the proposed highway liability legislation was constitutional with a few exceptions not relevant here). “The law [as amended in 1991] also provided a specific exemption for highway insufficiencies caused by inclement weather as long as the municipality is implementing a winter or inclement weather policy in good faith.” 14 Peter J. Loughlin, New Hampshire Practice § 1029 (1990 & Supp.1991) (citing N.H.Rev.Stat.Ann. 231:92-a (1991)). F. Arguments Regarding Retroactive or Prospective Application of Judicial Declaration of Unconstitutionality of a Statute The briefs and arguments of the parties in this case have stated contrasting arguments as to whether the 1990 judicial declaration (in City of Dover) of unconstitutionality of the 1975 statute applies retroactively to accidents occurring before the declaration, or to cases filed before the declaration, or to adjudications occurring before the declaration, or to claims for indemnity maturing before the declaration — or instead only prospectively as to accidents, or case filings, or adjudications occurring after the declaration, or to claims for indemnity maturing after the declaration (including B & M’s claim alleged by B & M to have “arisen” only when it made a payment in settlement with Lynch). We conclude that it is unnecessary to delve into these questions to decide this appeal because, as we explain below, the substantive common law of municipal liability in New Hampshire included the requirement of actual notice and opportunity to correct road hazards throughout the period commencing with the effective date of the Merrill decision and continuing to the present — except to the extent superseded by a substantive rule providing different (and at least in most respects greater) protection for municipalities under the 1991 and 1992 statutes. G. The Law of New Hampshire Governing this Action The precise issue of New Hampshire law governing this action has not yet been squarely addressed by the Supreme Court of New Hampshire. If that Court chooses to do so, it may address this issue in an interlocutory appeal currently before that Court, Schoff v. City of Somersworth, No. 90-C-006, (Sup.Ct. March 12, 1992), appeal docketed, No. 92-418 (N.H. July 15, 1992). For three reasons, however, we conclude that we need not delay disposition of this appeal. We state these reasons at the outset and then explain. First, every statutory mandate and every judicial holding of the Supreme Court of New Hampshire bearing on municipal liability during the period from 1974 to the present date is consistent with requiring actual notice of a road hazard and an opportunity to correct it as a prerequisite to municipal liability for hazards on public roads. Legislative mandates, even when not reciting this requirement explicitly, have never negated it, either explicitly or implicitly. Instead, legislation has mandated some other (and, we conclude additional) protection of municipal coffers against the risks of tort liability and the costs of litigation associated with those risks. Never in any statute, or in any legislative history called to our attention, has there been even a hint or suggestion that a statute was designed to expand municipal tort liability to require less of a claimant than proof of actual notice and opportunity to correct. Second, not only the explicit statutory mandates and New Hampshire Supreme Court holdings but also the purpose implicitly manifested in the statutes and Court holdings have been uniformly compatible with requiring actual notice and opportunity to correct, at a minimum. Third, in these circumstances, for this court to interpret the opinion in City of Dover, holding the 1975 statute unconstitutional, as wiping out not only the statutory mandate for greater immunity but also a common law standard that actual notice and opportunity to correct are prerequisites to municipal liability would be to interpret statutes and precedents as accidentally, by a quirk, creating a liability contrary to the purpose implicit in all the statutes and precedents from which we must take our guidance in determining the applicable state law. As previously noted, none of the specific mandates of the 1975, 1991, and 1992 statutes controls this case. The mandate of the 1975 statute does not, because it has been declared unconstitutional. The mandates of the 1991 and 1992 statutes do not, because they do not purport to apply retroactively to the 1988 accident on which this case is based. Nevertheless, a close examination of these statutes yields objective evidence of underlying assumptions about the common law rules in effect, both before and after the modifications effected by statutory mandate (or attempted but not effected, in the case of the 1975 statute), and the manifested purpose to modify those rules only to the extent stated in the statutes and holdings. The arguments of the parties, briefly stated and without details of elaboration, run along the following lines. The Town of Hampton argues that we should predict (1) that the Supreme Court of New Hampshire will hold that the 1975 statute remained in effect at the time of the Lynch accident because only later did the Supreme Court declare it to be unconstitutional and (2) that the Supreme Court’s declaration, after the date of the Lynch accident that actual notice and opportunity to correct are elements of municipal liability for road hazards is retroactively effective and therefore applies to the Lynch case. Though recognizing each of these possibilities, we conclude, for reasons explained below, that it is unnecessary'to decision of this case for us to make either of these predictions. B & M’s argument, on the other hand, is less precisely focused, but we understand the contention to be that when City of Dover declared the immunity statute unconstitutional, all municipal immunity was wiped out and none was restored until the 1991 legislation was enacted. An unstated but apparently invited inference from B & M’s argument is that, in declaring unconstitutional a statute that had been in effect from the delayed date on which Merrill became effective in abolishing common law municipal immunity, City of Dover left municipalities with no protection against liability other than rules applicable also to private citizens and corporations, and that, for example, municipalities were subject to an ordinary negligence standard even with respect to discretionary decisions involving raising and allocating municipal resources for all municipal functions, including snow and ice removal in winter storms, regardless of what the costs in resources might be. We conclude instead, that the two limitations upon municipal liability identified in Merrill remained in effect, and along with them (because a contrary rule would have been incompatible with these limitations) the prerequisites of actual notice and opportunity to correct road hazards in adverse winter weather. The Court’s decision in City of Dover did not manifest an intent to create a gap such as that asserted by B & M in the continuity of legal protection against liability in areas affected by municipal discretionary functions. B & M argues for an interpretation of New Hampshire law contrary to all policy pronouncements of both the Court and the legislature. Adopting B & M’s argument would in effect be attributing to the Court’s decision in City of Dover a backhanded kind of judicial lawmaking that created a greater liability than either the legislature or the Court had ever declared to be the intent of its action. Our conclusion that no such mandate or purpose was ever expressed by the Court or the legislature is reinforced by a review of judicial and legislative mandates from Merrill forward to the present date. See, e.g., Merrill, 332 A.2d at 383 (general negligence rule does not apply to acts or omissions constituting the exercise of a high degree of official judgment or discretion) and id. at 385 (Duncan, J., concurring) (“Government cannot merely be made liable as private persons are, for public entities are fundamentally different from private persons.”). (citations omitted); Estate of Cargill v. City of Rochester, 119 N.H. 661, 406 A.2d 704, 706 (1979) (noting that “there are real and vital differences between the situations of governmental units and of private parties as potential tort defendants”) (quoting Cooperrider, The Court, the Legislature, and Governmental Tort Liability in Michigan, 72 Mich. L.Rev. 187, 272 (1973)) (internal quotation marks omitted); City of Dover, 575 A.2d at 1284 (“In determining whether municipal liability can be limited, the right of an injured plaintiff to recover must be balanced against the competing interests of the municipality.”) (citing Opinion of the Justices, 126 N.H. 554, 493 A.2d 1182, 1192 (1985)). In an advisory opinion on the prospective constitutionality of post-City of Dover legislation, the New Hampshire Supreme Court construed the “actual notice” and “adequate opportunity to respond” mandates of City of Dover as “requirements,” Opinion of the Justices, 592 A.2d at 185, and concluded that “City of Dover plainly limits a municipality’s liability to instances of actual, not constructive, knowledge,” id. at 186 (citing City of Dover, 575 A.2d at 1286) (emphasis in original). Opinion of the Justices, in further comment on City of Dover, (1) concludes that City of Dover “explicitly stated that a municipality may be held to a lower standard of care with respect to its highways and sidewalks than a private corporation,” Opinion of the Justices, 592 A.2d at 187-88 (citing City of Dover, 575 A.2d at 1285), and (2) characterizes the declaration that “no municipality be held liable for an insufficiency unless it has had adequate opportunity to respond to it” as the “mandate” of City of Dover, Opinion of the Justices, 592 A.2d at 186-87. We also note that the standard of actual notice and opportunity to correct was codified by statute in January of 1992. See N.H.Rev.Stat.Ann. 231:90-92. Although the statutes of 1991 and 1992 are not binding in this case, they tend to confirm the continuing pattern of the expressions of New Hampshire public policy in this area of the law. We conclude that we would be disregarding a compelling pattern of formal expressions of the legislature and the Court in New Hampshire were we to sustain B & M’s position regarding the substantive law of New Hampshire applicable to this case. III. Having determined that the district court properly interpreted New Hampshire law as requiring “actual notice” and an “opportunity to correct” as prerequisites to liability of Hampton, we must next determine whether the district court’s dismissal on the pleadings was reversible error. We review the granting of Hampton’s motion to dismiss de novo. See Garita Hotel Ltd. Partnership v. Ponce Federal Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992). A. Nature of the Procedural Issue This case raises the issue of how much factual particularity a district court may require a plaintiff to plead in order to avoid dismissal. The district court’s dismissal was founded on the failure of the initial and amended pleadings to allege even an outline or summary of facts sufficient to support the alleged conclusions of “notice” of a particular hazard and “opportunity to correct” it. As explained below, we were initially concerned that deciding this appeal would require us (a) to resolve an apparent tension among previous decisions within this circuit permitting mere notice pleading in some instances and in others requiring that a party plead facts with at least minimal particularity, or (b) to determine that these precedents can be reconciled and that this case is in its nature more like one among these precedents than any other, and is therefore governed by it. On close analysis, however, we have concluded that this appeal should be decided on a narrower ground that leaves these interesting and important questions for another day. In this case, the district court allowed leave to file an amendment (the first) that was tendered in response to Hampton’s motion to dismiss for failure to state a claim. The district court then ordered dismissal of B & M’s claim against the town because the pleading (as amended) still failed to allege facts sufficient to support the alleged conclusions of actual notice and opportunity to correct a particularly identified hazard. Having thus received notice that the district court was invoking a particularity-of-pleading requirement for the state law issues of actual notice and opportunity to correct an identified hazard, B & M filed a motion to reconsider and a motion for leave to file a second amended pleading (adding several paragraphs in an apparent attempt to meet the district court’s particularity-of-pleading requirement). Having determined that all the facts alleged by B & M, including those stated in the tendered second amendment, were insufficient to state factual support for the alleged conclusions of actual notice and opportunity to correct, the district court denied the motions to reconsider and for leave to file a second amendment, thus leaving in effect a final judgment of dismissal of B & M’s claims. In view of (1) the explicit notice to B & M that the district court had invoked and would apply a particularity-of-pleading requirement in the circumstances of this case, (2) B & M’s tendered second amendment attempting (and, for the reasons explained in Section C, infra, completely failing) to meet this requirement by adding factual allegations, and (3) the lack of any reasoned basis for an expectation that further discovery, conducted after a previous opportunity of more than two years to engage in any appropriate discovery, would turn up evidence beyond that B & M already knew and relied upon in drafting its proposed second amendment, we conclude that returning this case to the district court for further proceedings would needlessly waste public and private resources. If it was error for the district court to invoke a heightened standard of particularity of pleading in this context (an issue that perhaps could be determined only by resolving a tension among precedents), in the circumstances of this case we hold that it was harmless error. The existence of a tension among precedents bearing upon pleading requirements is illustrated by a comparison of the holdings and reasoning of the First Circuit cases cited immediately below. The general rule that notice pleading is sufficient is stated in Fed.R.Civ.P. 8(a), and is supported by decisions in this circuit. E.g., DiMella v. Gray Lines of Boston, Inc., 836 F.2d 718, 721 (1st Cir.1988) (holding plaintiff did not have burden to plead reckless conduct to overcome immunity under Massachusetts law, but noting allegation of failure to repair with reckless disregard for public safety was sufficient and dismissal “on the ground that there were no specific facts alleged was inconsistent with the modest pleading requirements of Fed. R.Civ.P. 8(a)”). Nevertheless, in many contexts beyond the scope of particularity requirements for allegations of fraud, stated in Fed.R.Civ.P. 9(b), First Circuit decisions have required at least a minimal level of factual particularity rather than mere allegations of conclusions. See, e.g., Resolution Trust Corp. v. Driscoll, 985 F.2d 44, 48 (1st Cir.1993) (for claim that defendant had assumed debt obligation to claimant, “one conclusory sentence” was insufficient to avoid dismissal where nothing “remotely suggests the factual basis for this claim”; “[fjactual allegations in a complaint are assumed to be true when a court is passing upon a motion to dismiss, but this tolerance does not extend to legal conclusions, of to bald assertions.”) (internal quotation marks and citations omitted); U.S. v. AVX Corp., 962 F.2d 108, 115 (1st Cir.1992) (“the degree of specificity with which the operative facts must be stated in the pleadings varies depending on the case’s context.... [WJhere standing is at issue, heightened specificity is obligatory at the pleading stage”; describing Gooley, infra, as the standard in the “ordinary case”); Roth v. U.S., 952 F.2d 611, 613 (1st Cir.1991) (12(b)(6) standard for tort claims that were preempted by Civil Services Reform Act does not require court to accept “unsubstantiated conclusions”); Gilbert v. Cambridge, 932 F.2d 51, 62 (1st Cir.1991) (rejecting allegation of futility of claim proceeding as “rank supposition” in challenge to constitutionality of rent control), cert. denied, — U.S. -, 112 S.Ct. 192, 116 L.Ed.2d 153 (1991); Romani v. Shearson Lehman Hutton, 929 F.2d 875, 878 (1st Cir.1991) (“Whether or not the time, place and content specificity is met, however, the complaint nevertheless is deficient because the allegations of [securities] fraud are entirely unsupported. The complaint contains no factual allegations that would support a reasonable inference [supporting allegation that specifically identified statements were made with knowledge of falsity]”); Fleming v. Lind-Waldock & Co., 922 F.2d 20, 23-24 (1st Cir.1990) (“requiring that each general allegation be supported by a specific factual basis”; allegations of injury from alleged fraud were “merely conclusions unsubstantiated by fact”); Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52-53 (1st Cir.1990) (for claim of civil rights violation, court need not credit “unsubstantiated conclusions”; plaintiff cannot “rest on subjective characterizations or conclusory descriptions of a general scenario which could be dominated by unpleaded facts. The alleged facts must specifically identify the particular instance(s) of discriminatory treatment and, as a logical exercise, adequately support the thesis that the discrimination was unlawful.”) (internal quotation marks and citations omitted); Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989) (in 12(b)(6) motion, court need not credit unsupported conclusions, and the need for specific factual support of general allegations is even greater in civil rights cases); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1578 (1st Cir.1989) (“[ejmpty generalities will not suffice” in ambiguous claim concerning eviction); Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988) (“minimally sufficient factual predicate” necessary for allegation that offer was not “bona fide” in claim for violation of Petroleum Marketing Practices Act; general allegation alone was insufficient to permit a claimant “to drag a defendant past the pleading threshold”); Lefkowitz v. Smith Barney, Harris Upham & Co., 804 F.2d 154, 155-57 (1st Cir.1986) (per curiam) (in claim for securities fraud for failure to disclose “unsuitability” of investments, factual allegations were not sufficient to support inference that investments were not suitable independent of Rule 9(b)’s particularity requirements); Munoz-Mendoza v. Pierce, 711 F.2d 421, 425 (1st Cir.1983) (if standing is disputed, “[wjhere ‘injury’ and ‘cause’ are not obvious, the plaintiff must plead their existence in his complaint with a fair degree of specificity”). A similar tension exists among precedents within and among other circuits. See McLaughlin v. Anderson, 962 F.2d 187, 191 (2d Cir.1992) (specificity required in pleading role of act of mail fraud in RICO scheme); Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d 982, 986-87, 989 (10th Cir.1992) (insufficient specificity of allegation of “connection” with sale of securities; Rule 9(b) requires specificity of “each element of a RICO violation”); Faulkner Advertising Assoc. v. Nissan Motor Corp., 905 F.2d 769, 772 (4th Cir.1990) (“We cannot sustain a complaint which does not allege with reasonable definiteness facts from which the court may infer conduct in restraint of trade of the kind prohibited by the antitrust laws....”) (quoting Nelligan v. Ford Motor Co., 262 F.2d 556, 559 (4th Cir.1959)); Brown v. Texas A & M Univ., 804 F.2d 327, 333 (5th Cir.1986) (in civil rights case, “plaintiff must plead specific facts with sufficient particularity to meet all the elements necessary to lay a foundation for recovery”); Frazier v. Southeastern Penn. Transp. Auth., 785 F.2d 65, 67-68 (3d Cir.1986) (in civil rights cases, complaint must state “facts in support of their conclusions” in order to “weed out at an early stage frivolous claims”; level of specificity required to be decided case-by-case) (quoted case citation omitted); Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.1985) (in prison conditions case, “[ajlthough it is to be liberally construed, a pro se complaint must contain specific facts supporting its conclusions”); Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th Cir.1984) (attaching “bare legal conclusion” to insufficient facts does not prevent dismissal of antitrust claims); Bryan v. Stillwater Bd. of Realtors, 578 F.2d 1319, 1321 (10th Cir.1977) (in an antitrust case, “allegations of conclusions or of opinions are not sufficient when no facts are alleged by way of the statement of the claim”). Compare Early v. Bankers Life & Casualty Co., 959 F.2d 75, 79 (7th Cir.1992) (“plaintiff can plead a conclusion ... and then if the conclusion is questioned in a motion or a brief hypothesized facts that if proved would establish it”). See also Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149-50 n. 3, 104 S.Ct. 1723, 1725 n. 3, 80 L.Ed.2d 196 (1984) (“intricately detailed description of the asserted basis for relief” is not required); Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 528 n. 17, 103 S.Ct. 897, 903 n. 17, 74 L.Ed.2d 723 (1983) (“Certainly in [an antitrust] case of this magnitude, a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.”); Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957) (complaint need only “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests”). We turn to a brief explanation of why we conclude that there is apparent tension among these precedents, and also why we conclude that we need not attempt to place the present case as most closely analogous to one or another among these precedents to decide this appeal. B. Degrees of Particularity Required in Pleadings Rule 8(a) of the Federal Rules of Civil Procedure sets forth the general pleading requirement. A “short and plain statement of the claim showing that the ple Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_appnatpr	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. 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. LARKIN et al. v. UNITED STATES. No. 10189. Circuit Court of Appeals, Eighth Circuit. Aug. 15, 1935. Peter S. Rask, of Minneapolis, Minn. (Frank G. McCormick and P. J. Coffey, both of Minneapolis, Minn., on the brief), for appellants. L. W. Post, Sp. Asst, to Atty. Gen. (Frank J. Wideman, Asst. Atty. Gen., Sewall Key, Sp. Asst, to Atty. Gen., and George Philip, U. S. Atty., of Sioux Falls, S. D., on the brief), for the United States. Before STONE, WOODROUGH, and BOOTH, Circuit Judges. BOOTH, Circuit Judge. This is an appeal in a consolidated cause from judgments entered for defendant after demurrers to complaints of plaintiffs had been sustained. The actions were brought by the appellants, respectively (hereafter called taxpayers), to recover refunds of income tax payments made for the tax year 1927. The actions were consolidated pursuant to the provisions of section 734, title 28 USCA. The complaints alleged the following facts: The taxpayers were in 1920, and for many years prior thereto had been, employees of the Manchester Biscuit Company, a corporation in Sioux Falls, S. D. In that year the corporation sold to each of the taxpayers two hundred shares of its common stock at $100 per share. At the time of the sale, the stock had a fair market value of $250 per share. The taxpayers were permitted to buy the stock at $100 per share by reason of their long and faithful service. In 1927 the taxpayers sold the stock of the Manchester Biscuit Company so acquired, two hundred shares each, for $231.25 per share. In March, 1928, the taxpayers filed with the collector of internal revenue for South Dakota individual income tax returns for 1927, and in their returns reported a taxable profit from the sale of said stock in a sum equal to the difference between $100 per share and the sale price in 1927 of $231.25 per share. They paid income taxes on that basis. The taxpayers further allege in their complaints that the amounts paid by them as their 1927 income tax on the reported profits from the sale of said stock were erroneously and illegally paid and collected; that on July 31, 1929, they filed written claims for refund of the sums so paid by each .of them with the Commissioner of Internal Revenue, and alleged in- said claims for refund that they, in fact, each sustained a taxable loss for the year 1927 by reason of said sales. Attached to the complaints were Exhibit A, income tax return of taxpayer for 1927, and Exhibit B, claim of taxpayer for refund. These claims for refund were rejected by the Commissioner of Internal Revenue, and the present suits followed. The demurrers interposed by the government to the taxpayers’ complaints were on the ground that the complaints did not state facts sufficient to constitute a cause of action. The court sustained the demurrers, judgments of dismissal were entered, and this appeal was taken therefrom. The contention of appellants is, as we gather it from their brief, that taxable income resulted in the year 1920 from the stock purchase transactions in that year between the taxpayers and the corporation ; that the statute and regulations applicable are section 213 (a) of' the Revenue Act of 1918 (40 Stat. 1065), and a part of article 33, Regulations 45, under the Revenue. Act of 1918, which read respectively as follows: “Sec. 213. That for the purposes of this title * * * the term ‘gross income’— “(a) Includes gains, profits, and income derived from salaries, wages, or compensation for personal service * * * of whatever kind and in whatever form paid, * * * or gains or profits and income derived from any source whatever. The amount of all such items shall be included in the gross income for the taxable year in which received by the taxpayer.” “Art. 33, Regulations 45. * * * Compensation paid an employee of a corporation in its stock is to be treated as if the corporation sold the stock for its market value and paid the employee in cash. * * * ” The further contention of appellants is that no taxable income resulted from the sale of the stock in 1927, but in fact a loss resulted to the taxpayers, as appears by taking as the basis the market value of the stock in 1920 instead of the cost of such stock to the taxpayers, it being conceded that the sale price of the stock in 1927 was less than the market value thereof in 1920; that the error of the taxpayers in making their income tax returns in 1927 consisted in using as a basis the actual cost to them of the stock in 1920, instead of the fair market value as provided in Treasury Decision 3435, which was afterward incorporated as part of article 31, Regulations 69, relating to the Revenue Act of 1926, and which reads as follows: “Where property is sold by a corporation to a shareholder, or by an employer to an employee, for an amount substantially less than its fair market value, such shareholder of the corporation or such employee shall include in gross income the difference between the amount paid for the property and the amount of its fair market value. In computing the gain or loss from the subsequent sale of such property its cost shall be deemed to be its fair market value at the date of acquisition.” Appellants further contend that if any tax was due the United States by reason of the receipt of the stock by the taxpayers in 1920, such tax was barred by the statute of limitations on March 15, 1926, and all liability extinguished. See section 250 (d), Revenue Act 1918 (40 Stat. 1082); section 1106 (a), Revenue Act 1926 (26 USCA § 1249 note). The contention of appellee is that it is at least doubtful from the decisions whether any taxable income arose in 1920 at the time the stock was received, inasmuch as the transaction of 1920 was not within the strict letter of the provision contained in article 33, Regulations 45, under the Revenue Act of 1918 (above quoted); and inasmuch as the provisions contained in Treasury Decision 3435 were not in force until 1923. See Salvage v. Commissioner (C. C. A.) 76 F.(2d) 112; Commissioner of Internal Revenue v. Van Vorst (C. C. A.) 59 F.(2d) 677; Robinson v. Commissioner (C. C. A.) 59 F.(2d) 1008; Taplin v. Commissioner (C. C. A.) 41 F.(2d) 454. The further contention of appellee is that appellants are precluded from claiming the benefit of the provisions of Treasury Decision 3435 (part of article 31, Regulations 69, under the Revenue Act of 1926); and, finally, that said Treasury Decision has no application to the cases at bar. We think the contentions of appellee are well founded. We pretermit discussion of the first contention. When the appellants made out their income tax returns for the year 1927, they included the stock transaction in controversy. Larkin in his return (Exhibit A) stated that his stock had been acquired between 1914 and 1920 at a cost of $27,075.50; that it was sold by him in 1927 for $56,716; that the expense of sale was $86.96; that the net gain was $29,552.54. The statutes used by the taxpayers for determining the gain or loss in said stock transactions were sections 202 (a) and 204 (a) of the Revenue Act of 1926, which read as follows: “Sec. 202. (a) Except as hereinafter provided in this section, the gain from the sale or other disposition of properly shall be the excess of the amount realized therefrom over the basis provided in subdivision (a) or (b) of section 204 [section 935 of this title], and the loss shall be the excess of such basis over the amount realized.” 44 Stat. 11 (26 USCA § 933 (a). “Sec. 204. (a) The basis for determining the gain or loss from the sale or other disposition of property acquired after February 28, 1913, shall be the cost of such property.” 44 Stat. 14 (26 USCA § 935 (a). Nothing was stated to the effect that the stock had been acquired in whole or in part as compensation for services, although article 33 of Regulations 69 had been in force as part of former Regulations since prior to 1920. Nor was mention made in said income tax returns of the provision (article 31, Regulations 69) upon which the taxpayers now rely, and which has been quoted above. This paragraph was not in existence in 1920. It was first promulgated in 1923 as Treasury Decision 3435, II-l Cumulative Bulletin, 50, and was later incorporated in the Regulations. It thus seems plain that at the time of making the tax returns for 1927, the taxpayers considered the stock transaction of 1920 as a plain purchase of stock and that article 33 and article 31 of Regulations 69 had no application. Later on, however, in July, 1929, the taxpayers apparently concluded that the paragraph above quoted from article 31, Regulations 69, did have application to their income tax returns for the year 1927, and that the returns actually made by them were erroneous. Demand for refund accordingly was made on the Commissioner of Internal Revenue, and this being refused, the present suit was brought. The income tax returns of the taxpayers for the year 1920 are not before us, so that we are not advised of their contents; but return of the taxpayer Larkin for the year 1927 is before us as Exhibit A, made a part of the complaint. From this exhibit we learn nothing whatever about the stock transaction of 1920, but instead we are advised that the stock was acquired by the taxpayers from 1914 to 1920. We learn nothing to the effect that the stock was acquired in payment in whole or in part for services rendered. A plain purchase and sale of stock was stated and was relied upon both by the taxpayer and by the Commissioner of Internal Revenue. The tax was paid. After the statute of limitations had run against the collection of any tax that might have been due for the year 1920, the taxpayer claimed error in his return for the year 1927. The error was not a mistake in the figures of calculation, but was an omission by the taxpayer to state the true character, as now claimed, of the stock transaction of 1920. In Gregory v. Helvering, 293 U. S. 465, page 469, 55 S. Ct. 266, 267, 79 L. Ed. 596, 97 A. L. R. 1355, the court said: “The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” While this is true, yet the expression “by means which the law permits” opens up a field of inquiry. In Askin & Marine Co. v. Commissioner (C. C. A.) 66 F.(2d) 776, page 778, the court said: “While the commissioner must investigate returns to satisfy himself of their correctness in fact and law, a taxpayer may not benefit at the expense of the government by misrepresenting facts under oath; by succeeding in having the commissioner accept its representations as the truth; and by claiming later that what it represented to be true might have been found false had the commissioner refused to have faith in the sworn return.” See, to the same effect, Stearns Co. v. United States, 291 U. S. 54, 54 S. Ct. 325, 78 L. Ed. 647; Commissioner v. Liberty Bank & Trust Co. (C. C. A.) 59 F.(2d) 320; Edward G. Swartz, Inc. v. Commissioner (C. C. A.) 69 F.(2d) 633; Bothwell v. Commissioner (C. C. A.) 77 F.(2d) 35. In the Stearns Case the court said (291 U. S. 54, page 61, 54 S. Ct. 325, 328, 78 L. Ed. 647): “The applicable principle is fundamental and unquestioned. ‘Fie who prevents a thing from being, done may not avail himself of the nonperformance which he has himself occasioned, for the law says to him, in effect: “This is your own act, and therefore you are not damnified.” ’ Dolan v. Rodgers, 149 N. Y. 489, 491, 44 N. E. 167, and Imperator Realty Co. v. Tull, 228 N. Y. 447, 457, 127 N. E. 263; quoting West v. Blakeway, 2 Man. & G. 729, 751. Sometimes the resulting disability has been characterized as an estoppel, sometimes as a waiver. The label counts for little. Enough for present purposes that the disability has its roots in a principle more nearly ultimate than either waiver or estoppel, the principle that no one shall be permitted to found any claim upon his own inequity or take advantage of his own wrong. Imperator Realty Co. v. Tull, supra. A suit may not be built on an omission induced by him who sues.” We think the taxpayers are precluded by their conduct, as shown in their complaints, including exhibits, from maintaining the present suits. Furthermore, in our opinion, the paragraph from article 31, Regulations 69 (Treasury Decision 3435), is not applicable to the case of the taxpayers here presented. It is a rule of statutory construction that a statute should be considered as a whole, and not that its parts should be considered as separate enactments. Lewis’ Sutherland Statutory Construction (2d Ed.) §§ 344, 348; Costanzo v. Tillinghast, 287 U. S. 341, 345, 53 S. Ct. 152, 77 L. Ed. 350; Hellmich v. Hellman, 276 U. S. 233, 237, 48 S. Ct. 244, 72 L. Ed. 544, 56 A. L. R. 379; Van Dyke v. Cordova Copper Co., 234 U. S. 188, 191, 34 S. Ct. 884, 58 L. Ed. 1273; Bartlett Trust Co. v. Elliott (D. C.) 30 F.(2d) 700; Wainwright v. Pennsylvania R. Co. (D. C.) 253 F. 459, 465; In re Crook (D. C.) 219 F. 979, 987. We think the same rule of construction should be applied to Departmental Regulations. Treasury Decision 3435 (afterward incorporated into the Regulations) was intended to introduce and did introduce a new practice. By that ruling, an employee who was allowed by his company to purchase stock in the company at a price less than the fair market value thereof was required to include in his gross income for the year in which the stock was received the difference between the actual cost to him of the stock and its fair market value. This was not all. As owner of the stock he was obliged to state in his income tax report, if and when he sold the stock, the gain or loss, the same as any other owner. Brit since he had already reported as income at the time he acquired the stock the difference between the actual cost to him of the stock and its fair market value, he was allowed in reporting the sale to assume that the cost to him was the same as the fair market value, thus avoiding the possibility of a double taxation. The last sentence in Treasury Decision 3435 must be read in connection with what precedes. The provision of the last sentence applies-only to the class of persons mentioned in the first sentence. It is an adjustment provision. The taxpayers in the case at bar were not and could not be in such class of persons, and therefore the last sentence has no application to them. Again, Treasury Decision 3435 was prospective and not retroactive in its operation. Such is the rule in regard to statutes, absent language or surrounding circumstances plainly indicating the contrary. Lewis’ Sutherland Statutory Construction (2d Ed.) § 642; Brewster v. Gage, 280 U. S. 327, 337, 50 S. Ct. 115, 74 L. Ed. 457; United States v. Magnolia Co., 276 U. S. 160, 162, 48 S. Ct. 236, 72 L. Ed. 509; United States v. St. Louis, etc., Ry. Co., 270 U. S. 1, 3, 46 S. Ct. 182, 70 L. Ed. 435; Fullerton-Krueger Lumber Co. v. Northern Pacific, 266 U. S. 435, 45 S. Ct. 143, 69 L. Ed. 367; Cox v. Hart, 260 U. S. 427, 434, 43 S. Ct. 154, 67 L. Ed. 332; S. W. Coal & Improvement Co. v. McBride, 185 U. S. 499, 503, 22 S. Ct. 763, 46 L. Ed. 1010. And such we consider the better rule in regard to Departmental Decisions. Shearer v. Anderson (C. C. A.) 16 F.(2d) 995, 51 A. L. R. 534. See, also, 26 USCA § 1251, and as amended May 10, 1934 (48 Stat. 757, 26 USCA § 1251 (a). We are aware that the foregoing construction has not been uniformly placed upon Treasury Decision 3435, but we think it best accords with the language used, and also with the pertinent canons of construction. It follows that Treasury Decision 3435, relied upon by the taxpayers as the basis of their complaints, has no application to the facts set up. For the foregoing reasons, we think that the demurrers were rightly sustained. The judgments are 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_genapel2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. BLUE VALLEY MACHINE & MANUFACTURING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 20100. United States Court of Appeals, Eighth Circuit. Jan. 14, 1971. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Leonard M. Wagman, Morton Namrow, Attys., N.L.R.B., for respondent. Patrick E. Hartigan, Margolin & Kir-wan, Kansas City, Mo., for petitioner. Before VAN OOSTERHOUT and BRIGHT, Circuit Judges, and NEV-ILLE, District Judge. VAN OOSTERHOUT, Circuit Judge. Blue Valley Machine & Manufacturing Company has filed a petition to review the decision and order of the National Labor Relations Board finding it guilty of unfair labor practices hereinafter described. The Board has cross-petitioned for enforcement of its order. Jurisdiction is established. The Board’s order is reported at 180 NLRB No. 55. The Board, in agreement with the Examiner, found that the Company violated § 8(a) (5) and (1) of the National Labor Relations Act as amended, 29 U.S.C. A. § 151 et seq., by withdrawing recognition and failing to bargain in good faith with the Union, which was the representative of a majority of the Company’s employees, and by granting a unilateral wage increase of fifteen cents an hour. The Board also found that the Company violated § 8(a) (1) of the Act by failing to make a valid offer of reinstatement to unfair labor practice striker Robert Hambel. A careful examination of the record as a whole satisfies us that there is substantial evidence to support the Board’s determination that the Company violated § 8(a) (5) and (1) of the Act by withdrawing recognition and by failing to bargain in good faith with the Union, and by granting a unilateral wage increase. In reaching such determination we, like Board member Sagoria, place no reliance on the statement in footnote 21 of the Trial Examiner’s report to the effect that the Company’s withdrawal of its agreement on certain matters tentatively agreed upon in earlier negotiations constitutes evidence of bad faith. The Board’s order with respect to the violations just described will be enforced as well as the Board’s order that the Company bargain in good faith with the Union. We find no substantial evidentiary support for the Board’s determination that the Company failed to make a valid offer of reinstatement to Hambel. We do not question the Board’s determination that Hambel was engaged in an unfair labor practice strike or that Hambel made an unconditional request for reinstatement. On the reinstatement issue, the Trial Examiner’s finding, which was upheld by the Board, reads: “This officer [offer], made by the company officials, obviously with great reluctance and accompanied by comments and admonitions that tended to create an aura of restraint and coercion, carried an implied threat to the employee that, if he returned, his tenure might be very short-lived. The Trial Examiner concludes and finds that by this conduct the Respondent failed to make a valid offer of reinstatement to Hambel, and that in so doing it further violated Section 8(a) (1). Cf. Cello-Tape [Tak] Company, 143 NLRB 295, 303-304.” Cello-Tak Company, cited by the Examiner, lends no support to his finding. The facts in Cello-Tak Company differ materially from those in our present case. The only evidence offered on the reinstatement issue is that of Union organizer Stone and Company secretary Johnston. Stone accompanied Hambel to the Company offices on May 5, 1969, at which time a demand for reinstatement of Hambel was made. There is no substantial conflict in the testimony. Stone testified that he told the Company officers that the strike was over and that Hambel was making an unconditional request for reinstatement. On the relevant issue, Stone's testimony reads: “Mr. Johnson spoke up and said Bob could go back to work. Mr. Hambel’s first name is Bob. He asked if he wanted to come back right away or after lunch, and it was approximately 11 o’clock at that time. Mr. Hambel said he preferred to come back after lunch. Mr. Johnston said, ‘If you come back to work we are going to be watching you.’ Mr. Johnston was gesturing with his finger toward Mr. Hambel. He said, ‘If you come back to work we are going to watch you and watch you close. There is not going to be any roaming around the shop and talking to Haley and the other guys, staying on the job, we are going to watch you and watch you close.’ “After an intermission Mr. Johnston repeated this again. Mr. Johnson said to me, T hope there is no hard feelings,’ he said, ‘there is none on my part.’ And I said, ‘There is no hard feelings on my part,’ but I pointed out to Mr. Johnson that District 71, the union, had unfair labor practice charges in process with the National Labor Relations Board. Mr. Johnson said, ‘Yes, I know, but I don’t think that will amount to anything.’ Mr. Johnson says, ‘Bob, I hope there is no hard feelings, I hope you hold no hard feelings, I don’t hold no hard feelings against you.’ and Mr. Hambel nodded his head; * * Stone further testified that Hambel at a later date told him he did not go back to work because “he just couldn’t make himself go back to work there with the attitude Mr. Johnston had.” Johnston’s testimony includes; “Q. Can you explain what, if anything, was said to the people as they were gathered there, as far as how they should work in the shop? A. Yes, our superintendent was present in the office and he made his statement to our entire group of employees. This included several of the new hires and this type of statement went something like this, that previous to this time we have had a lot of trouble about people staying on the job, walking around the shop, bothering other people, talking to other people in excessive amounts, and we have been told by one of the new hires that they had been told they would have trouble if the old employees came back into the plant, so we wanted it understood, and our superintendent stated that they were all just alike in our employment excepting their seniority, and we did not wish these practices that had been going on over the last several months to continue.” We find no evidentiary basis for the Board’s finding of an implied threat to Hambel that his tenure would be short-lived if he returned to work. We further find no unreasonable conditions were imposed in the reinstatement negotiations. There is no indication that Union membership or activity would be subject to scrutiny or discriminatory action. The testimony goes no further than to show that the Company expected all employees, including Hambel, to observe reasonable work rules prescribed by the Company. The Board’s order will be enforced as to § 8(a) (5) and (1) violations consisting of withdrawing recognition, refusal to bargain in good faith, and the granting of the unilateral wage increase. The bargaining order will also be enforced. The Board’s order for reinstatement and back pay for Hambel is set aside and enforcement of such order is denied. . District Lodge, 71, International Association of Machinists & Aerospace Workers, AFL-CIO. Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_appel1_1_4	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant. BITUMINOUS CASUALTY CORPORATION, Appellant-Appellee, v. AETNA INSURANCE COMPANY, Appellant-Appellee, Helen L. Kletzker, Appellant-Appellee. Nos. 71-1599, 71-1612, 71-1618. United States Court of Appeals, Eighth Circuit. Submitted May 10, 1972. Decided June 8, 1972. Charles E. Gray, Gray, Friedman & Ritter, St. Louis, Mo., for appellant Bituminous Casualty Corp. John H. Cunningham, Jr., Willson, Cunningham & McClellan, St. Louis, Mo., for Aetna Ins. Co., appellant-appel-lee. Michael J. Ebeling, St. Louis, Mo., for Helen L. Kletzker. Before MATTHES, Chief Judge, and HEANEY and STEPHENSON, Circuit Judges. STEPHENSON, Circuit Judge. This is an appeal from a declaratory judgment entered by the trial court holding that two fire insurance policies were in effect on the date the insured suffered a fire loss and therefore each of the insurance companies involved must pay 50% of the loss sustained by the insured. The insured’s right to recover and the amount of her loss are not in dispute. The trial court’s Findings of Fact and Conclusions of Law are reported at 332 F.Supp. 860 (E.D.Mo. 1971). The material facts are not in dispute and are fully set out in the reported opinion. They will be repeated only to the extent necessary in presenting the views of this court. The insured (Helen L. Kletzker) owned an apartment building located in Maplewood, Missouri. Wenzlick Steve-ner & Company (insured’s manager) a Corporation engaged in the real estate business, managed the property for the insured commencing in 1937. In late July 1970 the insured’s manager contacted the Mercantile Insurance Agency (the Agency) and requested fire and extended coverage in the amount of $42,000 for three years with an inception date of August 18, 1970. The Agency promptly issued a policy with Bituminous Casualty Co. (Bituminous) in accordance with the terms requested, sending the original policy to insured’s manager and a copy to Bituminous. On August 13, 1970, 5 days prior to the policy inception date, the Agency was telephonieally advised by Bituminous that it desired to cancel the policy. The Agency promptly wrote a new policy with Aetna Insurance Company (Aetna) containing the same terms, including a policy inception date of August 18, 1970. The policy was not actually countersigned by the Agency until August 25, 1970, after which it was forwarded to the insured’s manager on August 31, 1970 with a note requesting the return of the Bituminous policy “for cancellation.” A fire occurred on insured’s premises August 28, 1970. Thereafter the insured filed proofs of loss with both Bituminous and Aetna. Bituminous then brought this declaratory judgment action seeking a determination as to coverage. The trial court concluded that “the Bituminous policy was not cancelled, there having been no mutual consent to cancel nor a five-day notice of cancellation given to the insured, as required by the cancellation clause in the insurance contract.” In substance, the trial court held that notice to the Agency was not notice to the insured under the terms of the policy and that while insured’s manager had become, through a course of conduct with the insured, an agent of the insured having the authority to accept notice of cancellation for her, the evidence showed that the Agency did not notify insured’s manager of Bituminous’ decision to cancel until three days after the fire and therefore the Bituminous policy was in effect at the time of the fire. The trial court further concluded that the policy with Aetna, which was countersigned by the Agency three days before the fire, was in effect even though the policy was not actually delivered until after the fire; that physical delivery of an insurance policy to the insured is not an essential element in binding the insurer to the terms of the policy. We agree with the trial court’s determination that the Aetna policy was in effect at the time of the fire. It is undisputed that the Agency was the general agent for Aetna, and, as such, it had the authority to issue policies with Aetna. Kratchman v. North British & Mercantile Ins. Co., 240 Mo. App. 297, 203 S.W.2d 483, 489 (1947); Bennett v. National Fire Ins. Co. of Hartford, 235 Mo.App. 720, 143 S.W.2d 479, 482 (1940). Delivery of the insurance policy to the insured is not essential to make it binding on the insurer unless there is an express agreement to that effect. Eyring v. Kansas City Life Ins. Co., 234 Mo.App. 328, 129 S.W.2d 1086, 1089 (1939); National City Bank of St. Louis v. Missouri State Life Ins. Co., 332 Mo. 182, 57 S.W.2d 1066 (1933). There was no showing in this record that delivery of the policy was a requisite to coverage. The undisputed evidence is that the Aetna policy was countersigned on August 25, 1970, three days before the fire, and therefore the coverage was complete. The mere fact that actual delivery of the policy occurred after the fire did not effect the coverage. See Baldwin v. Chouteau Ins. Co., 56 Mo. 151, 154-157 (1874); Cf. Keim et al. v. Home Mutual Fire & Marine Ins. Co. of St. Louis, 42 Mo. 38 (1867). Aetna additionally urges that since the trial court held that there was no effective cancellation of insured’s policy with Bituminous, the most that can be said is that the mailing by the Agency of the Aetna policy to insured’s manager asking for the return of the Bituminous policy constituted a new offer of insurance that was never accepted by the insured. However, since we disagree with the trial court’s conclusion that the Bituminous policy was not effectively cancelled we reject Aetna’s contention in this regard. The record discloses undisputed testimony that the procedure generally followed in the insurance industry is that if a company refuses coverage prior to the inception date of a policy, the agent immediately places the coverage in another company and no notice of cancellation is forwarded to the insured. This was the procedure followed by the Agency in this ease. The office procedures involved in formal issue of the policy and ultimately mailing the same to the insured or his representative follows routinely and sometimes takes several days. In this case the Aetna policy was routinely mailed out on August 31, 1970 and return of the Bituminous policy requested “for cancellation,” even though the latter policy had never really been in effect since it was cancelled before the inception date and a new policy issued with Aetna. The trial court in holding that Bituminous failed to give effective notice of cancellation to the insured emphasized that: 1) Under Missouri law a provision in an insurance policy for cancellation must be strictly complied with by the party seeking cancellation, Dyche v. Bostian, Mo.App., 229 S.W.2d 25 (1950), affirmed 361 Mo. 122, 233 S.W.2d 721 (1950); MFA Mut. Ins. Co. v. Southwest Baptist College, Inc., 381 S.W.2d 797 (Mo.1964); 2) implied authority authorizing notice to other than the insured “is a relinquishment of a stringent provision in the policy which is to the insured’s benefit. The right to rely upon this provision for personal notice is a present and continuing right.” Farrar v. Mayabb, 326 S.W.2d 337 (Mo.App.1959). While we agree with this statement as to the law of Missouri, we view the following discussion in Farrar, supra at 342, more pertinent to the problem here: We have examined a number of the cases which hold that the appointment of an insurance broker as ‘general agent’ to maintain insurance in force carries with it authority to receive notice of cancellation. Time and space will not permit the digesting and classifying of all these cases. Those interested will find a number listed in 45 C.J.S. Insurance § 450d(2), p. 95, note 36; Appleman on Insurance, vol. 8, sec. 5014, notes 51 and 54, and of course at ‘©=’229, Insurance, in the West Digest system. While the holdings in all the cases cannot be reconciled, we are impressed by the fact that they fall generally into two main classifications, (a) where the insured is a corporation or business house and the very necessities of the situation cry out for, and the conduct of the parties proclaims, an agency with complete power to represent the company in all matters pertaining to insurance coverage, (b) (and these are numerous) where the acceptance of notice of cancellation is but one step in the procurement of (other) satisfactory insurance. In many of these cases the question was whether a (later) policy was valid, and that depended upon whether the first coverage still existed. The ‘implied authority’ in this situation is upheld in order that the broker or agent can carry out his authority to secure satisfactory insurance. But it is further held that where the receipt of notice of cancellation is not for the purpose of replacing with other satisfactory insurance so as to ‘maintain’ the coverage, and the effect of the acceptance of such notice reaches to the end of doing the insured out of his coverage, as was done in this case, then the authority to waive or receive cancellation notice is not implied. (Footnotes omitted.) In the matter before us the Agency exercised its “implied authority” for the purpose of fulfilling its obligation to secure a $42,000 fire insurance policy for the insured. Had it failed to do so it could have been held liable. Hall v. Charlton, 447 S.W.2d 5, 9 (Mo.App.1969); KapPel Fabrics, Inc. v. R. B. Jones & Sons, Inc., 402 S.W.2d 49, 53 (Mo.App.1966). The action of the Agency in accepting notice of cancellation from Bituminous and in placing a new policy with Aetna was in accordance with the procedure that the record shows prevailed in the insurance industry. The insured through her manager did not seek two policies for $42,000 each, with the resultant double premiums. She also left the matter of choice of insurance company and the actual placing of the insurance (through her manager) to the Agency. Under these circumstances we are satisfied that the Agency had the implied authority to do whatever was necessary to procure the appropriate insurance, including the right to accept a notice of cancellation and the procuring of a new policy such as was done here. The Bituminous policy having been effectively cancelled, recovery can only be had against Aetna. Reversed and remanded for entry of judgment in accordance herewith. . The insured does ask that we clarify the judgment in her favor to the extent that interest be awarded at the rate of 6% commencing 60 days after presentation of proof of loss. The parties concede this is correct. Interest will be accordingly awarded the insured from December 23, 1970. . Albert Freeman, vice-president of the Agency, testified that the Agency had authority to bind or assign insurance contracts to either Bituminous or Aetna. No evidence to the contrary was offered by either party. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant? A. bank B. insurance C. savings and loan D. credit union E. other pension fund F. other financial institution or investment company G. unclear Answer:
songer_usc1sect	203	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". McWILLIAMS v. BLACKARD. No. 10677. Circuit Court of Appeals, Eighth Circuit. Nov. 13, 1936. Jesse Reynolds, of Clarksville, Ark., for appellant. Before GARDNER, SANBORN, and FARIS, Circuit Judges. GARDNER, Circuit Judge. This is an appeal from an adjudication of bankruptcy under section 75 (s) of the Bankruptcy Act as amended August 28, 1935 (11 U.S.C.A. § 203 (s), and which embodied a reference to a conciliation commissioner. The record discloses the following pertinent facts: On February 26, 1930, appellee executed his promissory note to appellant in the sum of $1,000, due one year after date, with interest at the rate of 10 per cent., which he secured by a mortgage on 80 acres of land located in Johnson county, Ark. He paid the interest on this note for 1931 and 1932. On January 5, 1931, he executed another note in the sum of $400, due one year after date, with interest at 10 per cent., to Guy Walton, which he secured by a mortgage on the same land. This note and mortgage in due course were sold and transferred to appellant. One payment of interest was made on this last-named note in 1932. There has been no payment on principal or interest on either of these notes since 1932. Appellant paid insurance on the mortgaged property for the years 1933, 1934, and 1935, in the sum of $87.20, and paid taxes for the years 1932, 1933, and 1934, in the sum of $93.92. On April 26, 1935, appellant commenced suit to foreclose these mortgages, and on the same date appellee filed petition for composition or extension under section 75 of the Bankruptcy Act (47 Stat. 1470, 48 Stat. 925, 1289) in the District Court of the United States for the Western District of Arkansas, and the cause was referred to the conciliation commissioner. Testimony was taken before the conciliation commissioner. Appellee offered a composition or extension proposal which was rejected, and on January 31, 1936, he filed an amended petition for adjudication under section 75 (s) of the Bankruptcy Act, as amended (11 U.S.C.A. § 203 (s). Appellant filed answer to appellee’s petition, in which he asserted that subsection (s) of section 75 was unconstitutional. The lower court overruled and denied appellant’s contention, and entered the adjudication from which this appeal was taken. It is the contention of appellant: (1) That subsection (s) of section 75 of the Bankruptcy Act, as amended, is unconstitutional ; and (2) that, if not, there was no probability of rehabilitation of the bankrupt. Appellee has filed no brief in this court. The decree appealed from was entered by the lower court before the opinion of this court in United States National Bank v. Pamp, 83 F.(2d) 493, was handed down. The facts in this case bring it clearly within the doctrine of the Pamp Case, and, on the authority of that case, the decree appealed from must be and is reversed, and the cause is remanded to the lower court, with directions to dismiss appellee’s petition. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11? Answer with a number. Answer:
songer_post_trl	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 some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant?" This doe not include attorneys' fees, but does include motions to set aside a jury verdict. 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". SHAPIRO & SON BEDSPREAD CORP., Plaintiff-Appellant-Cross-Appellee, v. ROYAL MILLS ASSOCIATES, a partnership, Isadore Gindi, Joseph Gindi, Sam Gindi, Joseph Home Decoration, Inc., and Roto-Print Machinery Corp., Defendants-Appellees, Royal Mills Associates, Isadore Gindi, Joseph Gindi, and Sam Gindi, Defendants-Appellees-Cross-Appellants. Nos. 544, 677, Dockets 84-7739, 84-7765. United States Court of Appeals, Second Circuit. Argued Dec. 21, 1984. Decided May 22, 1985. Donald L. Kreindler, New York City (Kreindler & Relkin, P.C., New York City, of counsel), for plaintiff-appellant-cross-ap-pellee. Ezra Sutton, Woodbridge, N.J., for defendants-appellees-cross-appellants. Before VAN GRAAFEILAND, PIERCE and WINTER, Circuit Judges. PIERCE, Circuit Judge: This case involved cross-suits before Robert Sweet, Judge, in the United States District Court for the Southern District of New York. It arose from a dispute between two competitors that manufacture bedspreads and accessories (hereinafter referred to simply as “bedspreads”). The plaintiff and appellant Shapiro & Son Bedspread Corp. (“Shapiro”) contends that the district court erred in dismissing its complaint of copyright infringement on a motion for summary judgment. The defendants and cross-appellants Royal Mills Associates, and three of its individual partners (“Royal”) claim error in the district court’s dismissal of their counterclaim, which alleged that Shapiro’s action was brought in bad faith and sought damages and a declaratory judgment that Shapiro’s claimed copyright was invalid. For the reasons hereinafter stated, we reverse the district court’s dismissal of Shapiro’s claim, and we affirm the dismissal of Royal’s counterclaim. Background The essential facts of this case are few and garnered from an undeveloped record, but are largely undisputed. On October 28, 1978, Shapiro published a new fabric design, entitled “6723-4 Lace Fantasy” (“Lace Fantasy”), to be incorporated into bedspreads. Lace Fantasy soon became Shapiro’s best-selling line, with sales aggregating more than 500,000 units from the design’s inception until this action was commenced on May 26, 1983. The bedspreads were distributed and sold in heat-sealed plastic bags. During the above period, all of the Lace Fantasy bedspreads distributed by Shapiro contained a printed flyer inserted into the heat-sealed bags containing the bedspreads. The flyer bore the words “Design Copyrighted.” In April, 1983, Shapiro learned that its competitor, Royal, was selling bedspreads under the name “Lace Splendor” with a design strikingly similar to Lace Fantasy, but at a lower price than Shapiro’s product. Shapiro then took steps to register a claim of copyright for its Lace Fantasy design. During this process, Shapiro became aware that the flyers it was inserting into the bags containing its bedspreads were legally insufficient to sustain a claim of copyright. The record indicates, and Royal concedes, that Shapiro took measures to affix an appropriate copyright notice to all bedspreads already manufactured but still in its possession, and to all those subsequently manufactured. Joint Appendix at 37-38, 122-25; Brief for Defendants-Appellees-Cross-Appellants at 6. The copyright registration form submitted to the Library of Congress contained, in addition to a copy of the flyer bearing the defective notice, a photograph of a Lace Fantasy bedspread with a sewn-in label bearing the typewritten words “Copyright by Everwear.” This copyright notice apparently was not identical to the corrected notice that was actually affixed to Shapiro bedspreads after the deficiency in the earlier notice was discovered. Royal claims this constitutes a misrepresentation, but does not contest the sufficiency of the labels now affixed by Shapiro, nor does it argue that the label submitted with the copyright registration application was insufficient. After it obtained registration of its copyright, Shapiro wrote to Royal demanding that Royal cease infringing the Lace Fantasy design. Royal rejected the demand, and this action followed. In a decision dated July 25, 1983, Judge Sweet denied Shapiro’s motion for a preliminary injunction. This decision was based on his finding that Shapiro’s publication of the Lace Fantasy design for close to five years, coupled with its failure to present evidence showing that a “cure” of the publication without proper notice had been effected, left Shapiro with only a slim chance of success on the merits and did not raise sufficiently serious questions going to the merits to make them a fair ground for litigation. Shapiro & Son Bedspread Corp. v. Royal Mills Associates, 568 F.Supp. 972 (S.D.N.Y.1983). By order dated February 10,1984, Judge Sweet granted Royal’s motion for summary judgment. This ruling, which is now before us, relied heavily upon his earlier denial of a preliminary injunction, and was predicated specifically upon the court’s determination that Shapiro had failed to demonstrate that it had made any effort to add proper notice of copyright to those bedspreads bearing deficient notice, and which had not yet been “distributed to the public” within the meaning of section 405(a) of title 17, U.S.Code. Accordingly, the court held Shapiro’s copyright to be invalid and dismissed the complaint. Some months later, by order dated August 9, 1984, Judge Sweet dismissed Royal’s counterclaim, which had alleged that Shapiro’s action was brought in bad faith and sought damages and a declaratory judgment that Shapiro’s copyright was invalid. Judge Sweet observed that his earlier holdings regarding Shapiro’s failure to cure its defective notice involved issues of first impression in this Circuit and elsewhere, and thus that Shapiro’s action was not brought with malice, but rather was colorable. He further found that Shapiro, in its application for registration of copyright, made no misrepresentations to the Register of Copyrights that would sustain a finding that the action was brought maliciously. Discussion A. The Shapiro Appeal Shapiro jeopardized its present claim of copyright in the Lace Fantasy design by publishing it without proper notice of copyright for the period October 1978 to April 1984, during which the only notice on the product was the words “Design Copyrighted” which appeared on the flyer inserted into the bags containing the bedspreads. Shapiro’s original notice was deficient in two respects: (1) it was not in the form specified by 17 U.S.C. section 401(b), which requires that in the case of a copyrighted design reproduced in or on a “useful article,” the legend “Copyright,” “Copr.” or the symbol © be followed by the name of the owner of copyright in the work; and (2) it was not “affixed to” the work, as required by section 401(c). In general, publication of a work without a proper notice of copyright affixed injects the work into the public domain. See 17 U.S.C. § 405(a) (1982); 2 M. Nimmer, Nimmer on Copyright § 7.14[A] (1984). Section 405(a), however, permits a defective notice to be cured and copyright to attach, if certain conditions are met: (1) proper notice was omitted from only a relatively small number of works distributed to the public; or (2) copyright registration for the work is effected within five years of the publication without proper notice, and a reasonable effort is made to add proper notice to all works that are distributed to the public after the omission of proper notice has been discovered; or (3) proper notice was omitted by a third party in violation of the copyright owner’s express written requirement that it be included. See 17 U.S.C. § 405(a) (1982). In view of the eoncededly large number of works bearing defective notice that Shapiro distributed (more than 500,-000), and of the absence of any suggestion that anyone other than Shapiro was responsible for the defective notice, it appears that the only applicable section 405 curative provision is subsection (a)(2). Consequently, the principal issue presented is whether Shapiro’s efforts to add proper notice to all works distributed to the public after the defectiveness of the original notice was discovered were “reasonable” within the meaning of section 405. If they were, Shapiro may be found to have cured its earlier omission of proper copyright notice by making a reasonable effort to add notice, and by effecting copyright registration within five years of the initial publication without notice. Shapiro would then have several possible remedies against infringers. See 17 U.S.C. §§ 501-509 (1982). If, on the other hand, Shapiro’s efforts were not “reasonable” within the meaning of section 405, it would have no valid claim to copyright in the Lace Fantasy design, and that design, by virtue of its publication without proper notice, now would be in the public domain. 17 U.S.C. § 405(a) (1982). The question whether efforts made to cure defective notice are “reasonable” has not yet been exhaustively examined by the courts. See 2 M. Nimmer, Nimmer on Copyright § 7.13JTB], at 7-94 (1984). It nevertheless seems clear that if no effort is made to add proper notice to copies distributed to the public after the defective notice is discovered, no cure is accomplished. When, however, some effort is made, the question whether it was “reasonable” is one of fact. Cf. In re M/T Alva Cape, 405 F.2d 962, 969 (2d Cir.1969) (whether precautions taken to avert explosion were “reasonable” requires full exploration of surrounding circumstances). Section 405(a)(2) requires reasonable efforts to add notice to “all copies ... that are distributed to the public in the United States after the omission has been discovered.” A fair reading of this language indicates that it covers all copies bearing defective notice at the time the defect is discovered, and which have not yet been distributed to the public — that is, all those copies which are distributed to the public after the defect is discovered. In Shapiro’s case, these copies include those in its own hands when the defective notice was discovered and thereafter, as well as those at an intermediate state in the distribution chain, having left Shapiro’s facilities but not yet sold to consumers. All of these are copies which bore defective notice, and which had not yet been distributed to the public within the meaning of section 405(a)(2). In dismissing Shapiro’s complaint, the district court held that “no action to affix the required notice [was taken] by Shapiro,” and accordingly granted Royal’s motion for summary judgment. Slip op. at 4 (S.D.N.Y. Feb. 3, 1984). In doing so, however, the court seems to have disregarded the inventory of defective bedspreads that Shapiro itself had on hand. Upon discovering that the notice was defective, it appears that Shapiro took prompt steps to correct the notice on the bedspreads in its inventory and to ensure that it shipped no further units without proper notice affixed. Consequently, the record does not support the conclusion that “no action” to cure the defective notice was undertaken by Shapiro. Rather, the question becomes .whether the efforts that were undertaken may be held to be unreasonable as a matter of law, in order to sustain the district court’s grant of summary judgment to the defendants. In our view, Shapiro’s actions cannot be deemed to be unreasonable as a matter of law. The number of bedspreads in Shapiro’s possession vis-a-vis those already shipped is a still-unresolved question of fact. Shapiro concedes, however, that although it re-la-belled the inventory still in its possession, it took no steps to add proper notice to those bedspreads already shipped to retailers but not yet sold to consumers. This decision, according to the affidavit of Shapiro’s president, was made because the bedspreads were typically sold in small quantities to numerous retailers, whose turnover of the bedspreads was rapid. In Shapiro’s view, efforts to add notice to these bedspreads would have been unavailing, chiefly because by the time the information regarding distribution of the product could be gathered and proper notice prepared and distributed, the defective inventory would already have been sold. Additionally, Shapiro asserts that attempts by retailers to properly “affix” notice to the bedspreads would render the bedspreads unsaleable to consumers, because the retailers would have to open the heat-sealed bags in which the bedspreads were contained and would not be able to re-seal those bags. Royal, however, chiefly relying upon Beacon Looms, Inc. v. S. Lichtenberg & Co., 552 F.Supp. 1305 (S.D.N.Y.1982), contends that Shapiro’s failure to undertake efforts to add proper notice to the already-distributed bedspreads rendered summary judgment appropriate in this case. We disagree. In Beacon Looms, which involved allegations of infringement of a design for curtain panels, the district court held that the sending of only 50,000 pressure-sensitive labels to customers, who had ordered 900,-000 panels in the preceeding nine months, was not a “reasonable” attempt to cure the omitted notice. Accordingly, the court granted a preliminary injunction against the assertion by the defendant of copyright in the curtain design. 552 F.Supp. at 1313-14. We do not believe that the rationale of Beacon Looms applies to the case before us. In Beacon Looms, there did not appear to be any evidence regarding the turnover rate of the panels distributed to retailers. Further, no notice at all had been affixed to the panels, possibly misleading a purchaser into believing no copyright was claimed. Finally, there was testimony in Beacon Looms that the purported copyright claimants themselves believed that the number of pressure-sensitive labels they had sent in order to remedy the defect was insufficient to cover the number of units remaining in the hands of retailers. Id. at 1313. Here, by contrast, the record suggests that there was a rapid turnover of inventory, which could lead to a finding that efforts to re-label product already shipped would have been unavailing; moreover, some form of notice, albeit defective, had been included, so that a purchaser would be aware that some proprietary-claim was being asserted. Other district court cases that have considered whether efforts to add curative notice are “reasonable” have also involved efforts by the copyright claimants to add notice to units no longer in their own possession. E.g., Florists’ Transworld Delivery v. Reliable Glassware Co., 213 U.S. P.Q. (BNA) 808 (N.D.Ill.1981). We do not, however, believe that the mere consideration of this factor elevates it to the status of a statutory requirement under section 405. Although such a factor is clearly relevant, the fundamental inquiry remains whether the efforts undertaken in a given case, viewed as a whole, were “reasonable.” See O’Neill Developments, Inc. v. Galen Kilbum, Inc., 524 F.Supp. 710 (N.D. Ga.1981). Here, where the record indicates that at least some of the bedspreads bearing defective notice and not yet distributed to the public were apparently properly relabelled, there remains an issue of fact as to how many were re-labelled compared to those not re-labelled. Further, there is an issue as to whether Shapiro’s efforts to relabel product already shipped would have been unavailing. In sum, there remains a material question of fact as to whether Shapiro’s efforts, taken as a whole, were reasonable. It is well-settled that summary judgment is improper where material issues of fact remain to be determined; the burden is upon the movant to show the absence of such issues, and we read the record in the light most favorable to the party opposing the motion. E.g., Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 54 (2d Cir.1985). We accordingly conclude that the district court’s grant of summary judgment on the question of the reasonableness of Shapiro’s efforts was error, and therefore reverse and remand for further proceedings in the matter. B. The Royal Cross-Appeal Royal has cross-appealed from Judge Sweet’s dismissal of its counterclaim, which sought a declaratory judgment that Shapiro’s copyright was invalid, and damages caused by Shapiro’s allegedly bringing this action in bad faith. Whether or not Shapiro ultimately prevails on its claim, however, we see no basis for a ruling that its action was brought in bad faith. Accordingly, we affirm the dismissal of Royal’s counterclaim. Royal also contends that in view of the alleged invalidity of Shapiro's copyright claim, Shapiro’s actions in notifying Royal’s customers that Royal was infringing Shapiro’s copyright and that this could have adverse legal consequences for sellers of Royal’s allegedly infringing product unlawfully interfered with Royal’s business. In our view, however, Shapiro’s actions were not improper, since if in fact Shapiro has a valid copyright in the Lace Fantasy design, as may prove to be the case, sellers of infringing works may indeed be subject to certain sanctions. 17 U.S.C. §§ 106, 501 (1982). Finally, Royal alleges that Shapiro “made a misrepresentation” to the Register of Copyrights by submitting, in connection with its copyright application, a photograph of a Lace Fantasy bedspread with a sewn-in copyright notice that was not identical to the one actually affixed to the bedspreads. This, Royal claims, warrants reversal of the district court’s grant of summary judgment to Shapiro on Royal’s counterclaims. We disagree. Since the notice submitted to the Register apparently complied with the statutory requirements, as did the notice actually affixed by Shapiro after it discovered the original defect, in our opinion any “misrepresentation” that may have taken place is de minimis and does not warrant reversing the dismissal of the counterclaim. Conclusion For the reasons hereinabove stated, we affirm the district court’s dismissal of Royal’s counterclaim, and reverse and remand the dismissal of Shapiro’s claim of copyright infringement for further proceedings on the question of the reasonableness of Shapiro’s efforts to cure the defective copyright notice packaged with its bedspreads. . Judge Sweet noted that "[t]he identity of size, dimension, curve and angle is so striking that the conclusion that Royal’s design was created by laying tracing paper on Shapiro's pattern would not be an unreasonable one.” 568 F.Supp. 972, at 979 (S.D.N.Y.1983). . Shapiro asserts on appeal that it had approximately 25,000 defectively-labelled bedspreads on hand, which it re-labelled. We are unable to find support in the record for this, but in any event do not rely upon this figure, noting only that the number of bedspreads re-labelled by Shapiro remains a material fact in dispute, bearing upon the reasonableness of Shapiro’s efforts. . Although section 405(a) speaks in terms of the “omission" of notice, "[t]he legal consequences are the same regardless of whether there has been an omission of any notice whatsoever, or whether an improper notice ... is used." 2 M. Nimmer, Nimmer on Copyright § 7.14, at 7-102 n. 1 (1984). This conclusion, moreover, is completely consistent with the language of section 405, which expressly relates to the "omission of the copyright notice prescribed by sections 401 through 403” — that is, the omission of proper notice, which encompasses the inclusion of defective notice. See also 17 U.S.C. § 406(c) (1982) (copies publicly distributed by authority of copyright owner without a notice containing name and date are considered to be published without notice and claims of copyright therein are governed by section 405). . We note, however, that by publishing the design for some 41/2 years before effecting copyright registration, Shapiro may no longer seek the remedies of statutory damages or attorney’s fees. 17 U.S.C. § 412 (1982). . We note that the time of "discovery” of improper notice, at least where the claimant has intentionally failed to include notice, has been considered by some to take place at the time of the first publication of the work. See Beacon Looms, Inc. v. S. Lichtenberg & Co., 552 F.Supp. 1305 (S.D.N.Y.1982); 2 M. Nimmer, Nimmer on Copyright § 7.13[B][3] (1984). Here, however, there was clearly some attempt made by Shapiro to protect its rights by including a copyright notice, albeit defective; in such a case, "discovery” of the omission of proper notice takes place when the claimant is apprised that the notice is for some reason insufficient for its intended purpose. Question: Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant? This doe not include attorneys' fees, but does include motions to set aside a jury verdict. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_genresp1	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. UNITED STATES of America ex rel. Alex BIRNBAUM, Appellant, v. Edward J. DOLAN et al. No. 19406. United States Court of Appeals, Third Circuit. Submitted Nov. 8, 1971. Decided Dec. 21, 1971. Alex Birnbaum, pro se. Lewis N. White, III, Asst. Prosecutor, New Brunswick, N. J. (John S. Kuhlthau, Prosecutor, Middlesex County, New Brunswick, N. J., on the brief), for Edward J. Dolan. John S. Fitzpatrick, Deputy Atty. Gen., Trenton, N. J. (George F. Kugler, Jr., Atty. Gen. of N. J., Stephen Skillman, Asst. Atty. Gen., Trenton, N. J., on the brief), for Dale G. Cordy. Before VAN DUSEN and ROSEN, Circuit Judges and LAYTON, Senior District Judge. OPINION OF THE COURT PER CURIAM: Appellant has appealed from the Order of the District Court dismissing his civil rights complaint as demonstratively frivolous and insufficient on its face. In January of 1967, an assault and battery, and a robbery occurred in Jamesburg, New Jersey. On March 20, 1969, a robbery occurred in Point Pleasant, New Jersey. Birnbaum was arrested in connection with the Point Pleasant robbery. Detective Cordy of the New Jersey State Police interviewed Birnbaum at his place of confinement because there were similarities between the crimes. At the August 28, 1969, interview, Birnbaum said he would appear at a lineup if counsel were provided. At the September 4, 1969, lineup, Birnbaum was identified as the perpetrator of the February offenses. Birnbaum claims that the lineup was unconstitutional. Defendant Dolan, the county prosecutor, handled the resulting litigation for the government. On January 12, 1971, the New Jersey Superior Court granted a motion dismissing the charges of atrocious assault and battery, which took place in January, 1967. On January 13, 1971, the same court ruled that the lineup identification was inadmissible against Birnbaum in any state criminal proceeding. Birnbaum was acquitted of the January 1967 charges two days later. During this entire period, he was incarcerated in connection with the March robbery. Birnbaum brought a civil rights action on October 20, 1970, based on 42 U. S.C. § 1983 in the District Court against Dolan and Cordy for damages due to his being subjected to an unusually long confinement prior to trial and an improper lineup. The complaint was dismissed in November of 1970 because it was not only too general, but also because it sought to enjoin a state criminal prosecution. Birnbaum has filed a timely appeal. Section 1983 actions are often brought by persons who have had little or no legal assistance in preparing their petitions, but who may be suffering from the infringement of an important civil right, with the result that such complaints are liberally construed by reviewing courts. At some point, however, a complaint may be so vague that, despite a liberal reading, it must be dismissed for failure to state a claim upon which relief could be granted. First, appellant claimed that he wanted his trial transferred to federal court because the slow pace of the state prosecution was depriving him of his right to a speedy trial. The enjoining of a criminal proceeding in a state court is an extreme measure designed only for those rare situations in which irreparable injury would result to the defendant. The language of 28 U.S.C. § 2283 clearly intends that an injunction to stay criminal proceedings in a state court would be rarely issued by a federal court. Only last term, the Supreme Court reaffirmed that concept when it held that only under extraordinary circumstances where the likelihood of irreparable loss to the defendant is both great and immediate, and he is unable to defend himself in one prosecution, should a federal court enjoin a pending state criminal prosecution. Appellant has not alleged bad faith either in his arrest or the manner of the prosecution of his case. It follows that appellant has not set forth sufficient reasons which might have justified his request for enjoining the state criminal action, and the District Court properly denied such a request. Second, appellant claims that defendants’ actions in furtherance of the prosecution of his case gave rise to damages compensable under Section 1983. This contention is without merit in the instant case. State officers, such as defendant Dolan, acting in good faith in the pursuance of their official duties, are shielded from Section 1983 damage suits, as long as their actions are not clearly outside their jurisdictions. Therefore, appellant’s second contention must be dismissed. Third, appellant argues that because he was subjected to illegal lineup, he should be compensated in damages. However, since the lineup identifications were not used against him, and we are presented actually with the question whether an abstract violation of a constitutional right which has no harmful consequences to the defendant entitles him to money damages under Section 1983, there is no merit to this argument. In the light of the foregoing, the decision of the District Court will be affirmed. . In Negrich v. Hohn, 379 F.2d 213, 215 (3rd Cir. 1967), while determining that a pro-se complaint would be dismissed, the Court held that “The complaint is insufficient because it is broad and conclusory. Its insufficiency lies in its failure to state facts in support of its conclusions.” . Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Appellant has not attempted to set forth special fact situations which might prove bad faith on the part of the prosecution, as a possible basis for assessment of damages. See, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Also, we cannot overlook the termination of the charges against plaintiff arising from the 1967 occurrences making moot much of the relief sought. See Caldwell v. Craighead, 432 F.2d 213, 218 (6th Cir. 1970). . Pierson v. Kay, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) ; Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1966). . Negrich v. Hohn, 246 F.Supp. 173 (W.D.Penn.1965), aff’d, 379 F.2d 213 (3rd Cir. 1967). 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_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. Billy Joe MAGWOOD, Petitioner-Appellant, Cross-Appellee, v. Fred SMITH, Commissioner, Alabama Department of Corrections; Willie E. Johnson, Warden, Holman Unit, Respondents-Appellees, Cross-Appellants. No 85-7270. United States Court of Appeals, Eleventh Circuit. June 4, 1986. J.L. Chestnut, Turner & Williams, Robert H. Turner, Selma, Ala., for petitioner-appellant, cross-appellee. Ed Carnes, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees, cross-appellants. Before VANCE and CLARK, Circuit Judges, and HENDERSON, Senior Circuit Judge. HENDERSON, Senior Circuit Judge: Billy Joe Magwood, an Alabama state prisoner under sentence of death, petitioned the United States District Court for the Middle District of Alabama for a writ of habeas corpus, alleging nine grounds for relief. The district court rejected eight of the alleged errors, but granted the writ because the state trial judge erroneously rejected two mitigating circumstances during the sentencing phase of trial. We affirm. The facts of this case are straightforward and uncontested. On January 3, 1979, Billy Joe Magwood, a black male, was released from the Coffee County, Alabama jail where he had been serving a sentence for drug possession. Prior to his release, Magwood on several occasions had expressed an intense desire to retaliate against Coffee County Sheriff Neil Grant-ham for perceived injustices during his incarceration. On the morning of March 1, 1979, Magwood returned to the jail and shot Sheriff Grantham as the sheriff entered the building. This shooting was witnessed by Deputy Sheriff Thomas Weeks, who recognized Magwood from his prior imprisonment. Magwood was arrested later that day and charged with capita] murder. Magwood’s court-appointed counsel requested the Circuit Court of Coffee County to investigate Magwood’s competency to stand trial. Pursuant to Ala.Code § 15-16-20, the court ordered two local physicians, Dr. Donald Crook and Dr. Bancroft Cooper, to examine Magwood. The doctors conducted their examinations on June 6, 1979, and both found that Magwood was presently sane. Despite this report, the court ordered Magwood committed to Alabama’s Searcy Hospital for further tests by a three-member lunacy commission pursuant to Ala.Code § 15-16-22. On August 16, 1979, the lunacy commission reported that Magwood suffered from paranoid schizophrenia, was presently insane and probably was insane at the time of the murder. The court then ordered Magwood to remain at Searcy Hospital for treatment until his competency was restored. In April of 1980, Magwood was declared competent and was returned to Coffee County for trial. On June 26, 1980, Mag-wood’s counsel moved the court for public funds to retain a consulting psychiatrist, but the court denied the request. On April 15, 1981, the State of Alabama moved for a re-examination of Magwood’s mental condition due to the passage of time since the last examination at Searcy Hospital. Mag-wood’s counsel acquiesed to the motion and the court ordered Dr. Douglas McKeown, a clinical psychologist, to examine Magwood. Dr. McKeown expressed his belief that although Magwood suffered from paranoid schizophrenia, he knew the difference between right and wrong on the day of the murder. Magwood was tried in June of 1981 in the Circuit Court for Coffee County. His principal defense was insanity. To establish insanity, Magwood relied on the report of the lunacy commission and the deposition testimony of Dr. William Rudder, a psychiatrist and member of the commission. In rebuttal, the State offered the testimony of Drs. Crook, Cooper and McKeown. The jury convicted Magwood of capital murder and recommended a death sentence. At the sentencing hearing, the court found one circumstance supporting the death penalty: murder of an on-duty police officer. It also found two mitigating factors: Magwood’s age at the time of the murder (27) and his lack of significant prior criminal history. The court specifically considered and rejected two proposed mitigating circumstances relating to Magwood’s allegedly diminished mental condition at the time of the murder. Based on this evaluation, the court sentenced Magwood to death. This conviction and sentence were upheld on direct appeal, Magwood v. State, 426 So.2d 918 (Ala.Crim.App.1982), aff'd, 426 So.2d 929 (Ala.), cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983), and in state writ of error coram nobis proceedings, Magwood v. State, 449 So.2d 1267 (Ala.Crim.App.), late appeal denied, 453 So.2d 1349 (Ala.1984). On July 20, 1983, Magwood petitioned the United States District Court for the Middle District of Alabama for a writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254. The district court ordered a psychiatric evaluation of Mag-wood on July 13, 1984, which showed Mag-wood to be sane. Since Magwood did not request an evidentiary hearing, the district court then addressed the merits of Mag-wood’s petition based on the briefs and record of the case. The court rejected Magwood’s challenge to the guilt phase of his trial. The court, however, held that the state trial court committed clear error when it rejected the two proposed mitigating factors concerning Magwood’s allegedly diminished mental condition at the time of the crime. Accordingly, the district court “remanded” the case to the Circuit Court of Coffee County for resentencing in light of these two now-established mitigating factors. Magwood v. Smith, 608 F.Supp. 218 (M.D.Ala.1985). Magwood appeals the denial of habeas corpus relief on eight of the grounds alleged and the State of Alabama cross-appeals the grant of the writ on the remaining ground. We will address each allegation of error in turn. I. Magwood’s Appeal Magwood first contends that he was denied his sixth amendment right to counsel when Dr. Cooper and Dr. Crook examined him, without notice to counsel, pursuant to a court order and later testified at the trial to rebut Magwood’s insanity defense. The source of this argument is Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), in which the Supreme Court of the United States held that an accused who had not raised the issue of his mental competency possesses fifth amendment and sixth amendment rights during a court-ordered psychiatric examination if testimony by the examining psychiatrist is offered against the accused at trial. See also Cape v. Francis, 741 F.2d 1287, 1292-97 (11th Cir.1984), cert. denied, — U.S. —, 106 S.Ct. 281, 88 L.Ed.2d 245 (1985); Booker v. Wainwright, 703 F.2d 1251, 1256-59 (11th Cir.), cert. denied, 464 U.S. 922, 104 S.Ct. 290, 78 L.Ed.2d 266 (1983); Spivey v. Zant, 661 F.2d 464, 473-76 (5th Cir.Unit B 1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982); Battie v. Estelle, 655 F.2d 692, 699-703 (5th Cir.1981). Based on the relevant case law, we find no violation of Magwood’s sixth amendment rights. A review of the chronology of events surrounding the examination establishes this point. In an undated motion filed sometime in May, 1979, Magwood’s counsel asked the trial court “to institute an investigation as to the sanity of said Defendant under the provisions of Title 15-16-20, Code of Alabama 1975.” Record on Appeal, Exhibit A, Yol. II, p. 381. The court granted this motion on May 31, 1979. In its order, the court set June 19, 1979, as the date for a hearing to determine Mag-wood’s competency and, pursuant to § 15-16-20, ordered Dr. Cooper and Dr. Crook to examine Magwood in the interim and to testify at the hearing concerning the re-suits of their examination. Record on Appeal, Exhibit A, Vol. II, p. 382. The physicians examined Magwood six days later on June 6, 1979, and both testified at the June 19, 1979, hearing. Magwood’s counsel requested the examination and were aware of the time frame in which it would take place. As such, they had enough notice of the examination and ample opportunity to advise their client. This situation stands in marked contrast to Estelle v. Smith, in which counsel had no notice of the examination. See Estelle v. Smith, 451 U.S. at 458-59, 101 S.Ct. at 1871, 68 L.Ed.2d at 366. Moreover, Magwood cannot claim surprise at the use of the physicians’ testimony. The Alabama trial court ordered the June 6, 1979, examination to determine Magwood’s competency to stand trial. Both physicians limited their psychiatric testimony to this issue. Neither expressed an opinion about Magwood’s sanity at the time of Sheriff Grantham’s murder. This again varies from the facts in Estelle v. Smith, in which the psychiatrist examined Smith to determine his competency to stand trial, but testified about Smith’s future dangerousness. See Estelle v. Smith, 451 U.S. at 470-71, 101 S.Ct. at 1877, 68 L.Ed.2d at 374. See also Cape v. Francis, 741 F.2d 1287, 1297 (11th Cir.1984), cert. denied, — U.S. —, 106 S.Ct. 281, 88 L.Ed.2d 245 (1985) (resolution of Estelle v. Smith sixth amendment claim “turns upon the actual use of the testimony at trial”). As a last resort, Magwood requests this court to instigate a heightened inquiry because the testimony of mental competency came not from a psychiatrist, but from two local physicians. Although this distinction might influence the physicians’ credibility as experts, it has no effect on our analysis of Magwood’s rights. Magwood’s counsel had sufficient notice of the examination and were not surprised by the use of testimony derived from that examination. There was no sixth amendment violation in this instance. Magwood next complains that he was denied effective assistance of counsel when the state trial court denied his request for public funds to hire a consulting psychiatrist. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court noted the importance of a psychiatrist’s assistance in establishing an insanity defense and held that a state has an obligation under the Constitution to provide an indigent defendant with “access to a competent psychiatrist” if the defendant’s “sanity at the time of the offense is to be a significant factor at trial.” 470 U.S. at —, 105 S.Ct. at 1097, 84 L.Ed.2d at 66. See also Martin v. Wainwright, 770 F.2d 918, 933-35 (11th Cir.1985); Bowden v. Kemp, 767 F.2d 761 (11th Cir.1985); Blake v. Kemp, 758 F.2d 523, 529-33 (11th Cir.), cert. denied, — U.S. —, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985). It was clear almost from the time of Magwood’s arrest that his sanity was likely to be “a significant factor at trial.” We find, however, that Magwood was provided sufficient psychiatric assistance to satisfy the requirements of Ake. Six doctors conducted psychiatric examinations of Mag-wood before his trial. The three members of the state lunacy commission concluded that Magwood was insane at the time of their examination and probably was insane at the time of the crime. This conclusion was admitted in evidence through the commission’s report and through Dr. Rudder’s deposition testimony. Dr. McKeown also testified about Magwood’s mental condition at the time of the crime. Although he believed that Magwood suffered from paranoid schizophrenia on March 1, 1979, he concluded that Magwood knew the difference between right and wrong. Thus, four experts gave opinions concerning Mag-wood’s mental condition on the date of the crime and three experts gave evidence highly favorable to Magwood’s insanity defense. In contrast, the defendant in Ake v. Oklahoma was examined by several psychiatrists to determine his competency to stand trial, but none of these experts testified about his mental condition at the time of the crime. As such, there was no expert testimony supporting or contradicting Ake’s insanity defense. See Ake, 470 U.S. at —, 105 S.Ct. at 1091, 84 L.Ed.2d at 59. Magwood clearly was provided with “access to a competent psychiatrist” and, as such, was able to present a viable insanity defense. Although additional psychiatric testimony might have been desirable, it was not required under the Constitution. As the Supreme Court noted in Ake, an indigent defendant has no “constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed....” 470 U.S. at —, 105 S.Ct. 1097, 84 L.Ed.2d at 66. See also Martin v. Wainwright, 770 F.2d 918, 934-35 (11th Cir.1985); Finney v. Zant, 709 F.2d 643, 645 (11th Cir.1983). In his third allegation of error, Mag-wood charges that Alabama imposes the death penalty in a racially discriminatory manner. In support of this argument, he cites statistics that a majority of pre-Furman executions in Alabama involved blacks and that a majority of 1983 death row inmates were black. Magwood did not request an evidentiary hearing on this issue in the district court. Although we doubt that these statistics establish discriminatory application of the death penalty in Alabama, we need not resolve this claim because it is procedurally barred by Alabama law. A federal habeas corpus court will not address an issue if the petitioner may not pursue that issue in state court because of a procedural default unless he can overcome this impediment by showing cause for and actual prejudice from the default. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Alabama has contemporaneous objection rules that preclude appellate review of issues that could have been raised at trial, Wood v. State, 416 So.2d 794 (Ala.Crim.App.1982), Moore v. State, 415 So.2d 1210 (Ala.Crim.App.), cert. denied, 459 U.S. 1041, 103 S.Ct. 459, 74 L.Ed.2d 610 (1982), Fagan v. State, 412 So.2d 1282 (Ala.Crim.App.1982), and coram nobis review of issues that could have been raised on direct appeal, Dobard v. State, 455 So.2d 281 (Ala.Crim.App.1984), Magwood v. State, 449 So.2d 1267 (Ala.Crim.App.), late appeal denied, 453 So.2d 1349 (Ala.1984). Since Magwood could have asserted the discriminatory application issue in state court and failed to do so, he is thereby barred from pursuing it in federal court. Moreover, Magwood made no effort to establish the necessary “cause” and “actual prejudice” to overcome this procedural bar. Consequently, we must reject this allegation of error. Magwood’s fourth claim also is precluded by procedural default. Magwood contends that the state trial judge should have questioned the jury venire with respect to possible racial prejudice, even though Magwood’s counsel made no request for such an inquiry. Magwood did not pursue this issue during the trial and cannot now raise the issue in further state proceedings. Absent a showing of cause and actual prejudice, he cannot seek review in a federal forum. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Since Magwood has not demonstrated cause and actual prejudice, the district court properly found that he is now estopped from asserting this claim. Magwood’s charge of ineffective assistance of counsel was presented to the state coram nobis court and, as such, is ripe for federal habeas corpus resolution. Mag-wood alleges five errors of trial counsel, which he contends deprived him of adequate representation. These claimed errors are: (a) failure to object to the testimony of Dr. Crook and Dr. Cooper; (b) failure to inquire of the jury venire about possible racial prejudice; (c) failure to obtain a bench warrant for Dr. Rudder of the lunacy commission; (d) failure to subpoena the other two members of the lunacy commission; (e) failure to conduct a full investigation of the insanity defense. For the performance of an attorney to rise to the level of a constitutional violation, it must be established that (1) the conduct of trial counsel was unreasonable under the circumstances and (2) a reasonable probability exists that the trial results would have been different but for the unreasonable conduct. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Cron ic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Boykins v. Wainwright, 737 F.2d 1539 (11th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985). Applying this standard to the conduct of counsel in this case, we find no constitutional violation. The failure to object to the testimony of Dr. Crook and Dr. Cooper is not grounds for relief because, as we have already noted, such an objection would have had no legal basis. Counsel did not question the jury on possible racial prejudice because of their desire to keep race out of the trial. Mag-wood’s trial attorneys testified at the cor-, am nobis hearing that they based this decision on their experience as trial lawyers in Coffee County and their knowledge of local racial attitudes. Record on Appeal, Exhibit P, Vol. I, pp. 72-73, 80-81, 84-85. We agree that this was a reasonable strategy under the circumstances and one best left to the sound discretion of trial counsel. Cf. Moore v. Maggio, 740 F.2d 308, 317-18 (5th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985). The record discloses that Mag-wood’s trial lawyers secured a subpoena for Dr. Rudder of the lunacy commission, but that Dr. Rudder did not appear at trial. The trial court was uncertain whether Dr. Rudder actually had been served with the subpoena. His deposition was then read to the jury in lieu of oral testimony. Mag-wood now contends that counsel should have obtained a bench warrant for Dr. Rudder. Magwood, however, has failed to demonstrate a reasonable probability that live testimony would have changed the trial results in this particular case. Although live testimony might have had a greater impact than a deposition, Dr. Rudder’s deposition was highly favorable to Magwood since it concluded that Magwood was probably insane on the date of the crime. As the district court noted, this deposition “was as favorable to petitioner as could be hoped for from any trial testimony.” Magwood v. Smith, 608 F.Supp. at 223. A similar analysis applies to counsel’s failure to subpoena the other two lunacy commission members. Their findings were presented to the jury in the commission’s report and in the testimony of Dr. Rudder. As such, Magwood has failed to demonstrate a reasonable probability that their testimony would have affected the outcome of the trial. After a thorough review of the record, we also find that counsel conducted an extensive investigation of Magwood’s sanity. Counsel deposed various experts, reviewed a variety of documents, including Magwood’s files from the Veterans Administration and the state mental hospital, and interviewed Magwood’s relatives. The lawyers elected not to use all of this information during the trial, but this was a strategic decision based on the potentially harmful effect of part of that evidence. See Record on Appeal, Exhibit P, Vol. I, pp. 69-70, 74-79. These alleged errors, taken separately or together, do not amount to a constitutional denial of effective assistance of counsel. Most involved matters of trial strategy and none affected the result of the trial. Magwood next challenges the constitutionality of Ala.Code § 15-16-23. This statute requires the trial court to suspend the execution of a person under sentence of death if “it is made to appear to the satisfaction of the trial court that the convict is then insane.” The basis of this argument is that the statute leaves the determination of sanity to the trial judge’s unbridled discretion. Magwood maintains that a petitioner “simply is not placed on notice by the statute as to what evidence is needed to satisfy the statute’s requirement.” The district court did not address the merits of this issue because it found that Magwood lacked standing to challenge the statute. When the issue of Magwood’s sanity was raised in the district court, the court ordered Magwood examined by the psychiatric staff of the Taylor Hardin Secure Mental Facility in accordance with the standards for present insanity set forth in Gray v. Lucas, 710 F.2d 1048 (5th Cir.), cert. denied, 463 U.S. 1237, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1983). Since this evaluation showed Magwood to be presently sane, the district court simply declined to reach the merits of this argument and held that Magwood lacked standing to challenge § 15-16-23. Magwood v. Smith, 608 F.Supp. at 224. The fact that Magwood is presently sane for purposes of this federal litigation does not necessarily preclude a finding that he is insane as a matter of Alabama state law under § 15-16-23. Consequently, Magwood did have standing and we address the merits of this argument. We begin our analysis with the principle of statutory construction that “if a statute can be made constitutionally definite by a reasonable construction the court is under a duty to give it such a construction.” United States v. Thomas, 567 F.2d 299, 300 (5th Cir.1978). Although § 15-16-23 itself does not specify how the trial court should determine the present sanity of a death-row inmate and the Alabama appellate courts have not yet definitively construed the statute, there is ample guidance in Alabama common law. In determining whether an accused is competent to stand trial, Alabama courts must determine whether the accused has “sufficient present ability to consult with an attorney with a reasonable degree of rational understanding and whether he has rational as well as factual understanding of the proceeding against him.” Atwell v. State, 354 So.2d 30, 35 (Ala.Crim.App.1977), cert. denied, 354 So.2d 39 (Ala.1978). See also Holland v. State, 376 So.2d 796 (Ala.Crim.App.), cert. denied, 376 So.2d 802 (Ala.1979). Cf. Gray v. Lucas, 710 F.2d 1048, 1054 (5th Cir.), cert. denied, 463 U.S. 1237, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1983); Jones v. Smith, 599 F.Supp. 1292 (S.D.Ala.1984), aff'd, 772 F.2d 668 (11th Cir.1985). We are aware of the distinction between an inquiry into an accused’s competency to stand trial and a death row inmate’s sanity at the time of execution. The two situations, however, are sufficiently analogous that the standards used to determine competency should provide any necessary instruction for § 15-16-23 purposes. Moreover, the trial court actually employed a similar standard when it rejected Mag-wood’s § 15-16-23 motion. The court held that “Magwood’s attempt to invoke Section 15-16-23 and obtain a stay of execution of the sentence of death is without merit. The totality of the evidence conclusively shows he is not presently insane. He appears sane, competent and capable of assisting counsel in matters pertaining to the writ of error, sentence or otherwise.” Record on Appeal, Exhibit P, Vol. I, p. 180. Accordingly, we hold that § 15-16-23 is constitutional. Cf. Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 94 L.Ed. 604 (1950); Ford v. Wainwright, 752 F.2d 526 (11th Cir.) (per curiam), cert. granted, — U.S. —, 106 S.Ct. 566, 88 L.Ed.2d 552 (1985); Goode v. Wainwright, 731 F.2d 1482 (11th Cir.1984) (per curiam). Magwood also attacks the district court’s finding that he is presently sane. The district court made the finding of present sanity pursuant to the stipulated factors set out in Gray v. Lucas, 710 F.2d 1048 (5th Cir.), cert. denied, 463 U.S. 1237, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1983) and the psychiatric evaluation prepared by the staff of the Taylor Hardin Secure Mental Facility. Magwood offered no new evidence of present insanity. This factual and legal basis provides more than adequate support for the district court’s finding. Finally, Magwood accuses the state prosecutor of prosecutorial misconduct by making a judgmental statement to the jury during his sentencing-phase final argument. The prosecutor concluded: “I submit to you ladies and gentlemen — I am just going to say this in conclusion — the only appropriate punishment for the brutal killing of Sheriff Neil Grantham is death by electrocution.” Record on Appeal, Exhibit A, Vol. II, pp. 347-48. Magwood contends that this statement diminished the jury’s sense of responsibility for imposing the death sentence. See Caldwell v. Mississippi, — U.S. —, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Magwood did not object to this statement at the trial or challenge it in subsequent state proceedings. This procedural default in state court precludes review of this issue in federal court. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Since Mag-wood has not overcome this bar by showing cause and actual prejudice, we need not reach the merits of this issue. In so holding, we do not imply that the prosecutor’s comment might otherwise constitute reversible error. II. The State of Alabama’s Cross-Appeal The grant of the writ of habeas corpus was predicated on the district court’s finding that the trial court erred in rejecting two proposed mitigating circumstances. The two factors at issue are: (2) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance; ' (6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. Ala.Code § 13-11-7. The state trial court specifically considered and rejected these factors. In its final order, the court stated that “Mag-wood did not kill Grantham under influence of extreme [mental] or emotional disturbance and when the three bullets were fired into the body of Grantham, Magwood had the capacity to appreciate the criminality of his act. Magwood’s conduct was contrived, calculated and previously designed with the capacity to conform his conduct to the requirements of law.” Record on Appeal, Exhibit A, Vol. II, pp. 370-71. The Alabama Supreme Court sustained this finding as a correct application of the Alabama death penalty statute. See Ex parte Magwood, 426 So.2d at 932. The district court characterized this finding as a factual determination and reviewed it pursuant to the criteria set out in 28 U.S.C. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. UNITED STATES of America, Appellee, v. Frederick D. KRAEMER, Appellant. No. 86-5258. United States Court of Appeals, Eighth Circuit. Submitted Dec. 1, 1986. Decided Jan. 26, 1987. Frederick Dale Kraemer, Fargo, N.D., pro se. Lynn E. Crooks, Asst. U.S. Atty., Fargo, N.D., for appellee. Before McMILLIAN, ARNOLD, and BOWMAN, Circuit Judges. PER CURIAM. Appellant Frederick Kraemer appeals the district court’s denial of his 28 U.S.C. § 2255 motion for vacation of his sentence. For reversal, Kraemer argues that there is newly discovered evidence that the prosecution’s major witness perjured himself, that the prosecution knew or should have known of the perjury, and that the prosecution withheld material exculpatory evidence from him. He also argues that the district court erred in refusing to grant him an evidentiary hearing on his claims, and that it erred in not making an explicit finding about whether the ends of justice would be served by allowing him to raise the same issue in his § 2255 motion that previously was decided on direct appeal. We affirm. I. Kraemer was convicted on April 23,1984, of violations of 18 U.S.C. § 2314 (interstate transportation of property known to be stolen, converted, or taken by fraud), 18 U.S.C. § 1341 (mail fraud), and 18 U.S.C. § 371 (conspiracy). He appealed the convictions and the denial of his motion for new trial to this court, which affirmed his convictions. United States v. Kraemer, 767 F.2d 929 (8th Cir.1985). The facts of the case are rather complicated. In the fall of 1982, appellant was a practicing attorney in Fargo, North Dakota. He was asked to take over the case of Marie Michaeloff, who was in prison on shoplifting charges in Minnesota, in an attempt to obtain a post-conviction release. Kraemer negotiated with Marie’s husband, Dale Michaeloff, who was a travel agent. It is not at all clear what Kraemer said his fee would be — anywhere from $10,000 to $30,000. Michaeloff purportedly said that he did not have any cash to pay Kraemer, but that he could give him some airline tickets as “collateral.” There is considerable dispute about what happened next. Kraemer obtained about $40,000 worth of tickets to various destinations in the names of himself, his family, his girlfriend Charlotte Skjonsby, a/k/a Charlotte Mees, and her family. Kraemer claimed that Michae-loff had simply given him the tickets, and that he (Kraemer) did not know that there was anything wrong with them. Michae-loff claims that he agreed to write up the tickets but only to give photocopies to Kraemer, which he could hold as proof of the collateral. Michaeloff testified that Kraemer came to the Dollar Travel Agency in Minneapolis, Minnesota, where he was working, and stole the actual tickets while Michaeloff was waiting on a customer. Mi-chaeloff also testified that he had nothing to do with any larger scheme to defraud the airlines. (T. 278-79). This is the testimony which Kraemer claims was perjured. What is not disputed is that the airlines never have received payment for the tickets. It is also undisputed that Kraemer took the tickets back to Fargo, North Dakota, and that he and his girlfriend began submitting the tickets to the airlines for cash refunds. Some of the refunds were obtained through the mail, with letters giving false reasons why the tickets could not be used. They received over $35,000 in refund checks, which were deposited in Kraemer’s bank account. Kraemer was able to cash these tickets in, although the airlines had never been paid for them, because of the complicated process by which the individual airlines receive money from travel agents. At the time of the events described above, a division of the commercial airlines trade association known as the Air Traffic Conference of America (ATC) accredited all travel agencies, collected money from them for all the tickets they sold, and then disbursed the money to the individual airlines. After a travel agent was approved by ATC, ATC sent it blank airline ticket stock, and each airline provided it with a validation stamp. The travel agency was supposed to guard this blank ticket stock very carefully and to use it strictly in numerical order. Each week, the travel agent sent a report to ATC listing each ticket issued. The money paid for the tickets, minus the agency’s commission, was supposed to be deposited in a designated bank account. The agreement between the travel agency and ATC authorized ATC to withdraw the amount of money given in each report from this account. ATC then distributed it to the airlines. All this took some time. Once the ticket was issued with the proper airline validation stamp on it, the airline would honor it, either for travel or for a refund, presuming that the holder could not have obtained it without paying for it. On July 12, 1983, Kraemer met with two North Dakota Crime Bureau agents to talk about a matter unrelated to this case. At the meeting, he told them he knew about something that would “knock their socks off.” The next day, and at numerous later meetings with state and federal agents, he said that his clients, the Michaeloffs, were involved in a huge “ticket scam” in which their travel agency, Dollar Travel, issued hundreds of thousands of dollars worth of airline tickets, did not pay ATC for them, and then went bankrupt. Kraemer claimed at trial that he did not know about this scheme until December 1982, after he had cashed in his tickets. In one interview with FBI agents, however, he admitted that he knew when he took the tickets that there was something wrong with them. He did in fact cash in at least one ticket in 1983. Dollar Travel Agency closed in mid-October 1982. In the three weeks preceding the closing, the agency issued about $440,000 worth of tickets, including the ones given to Kraemer. The agency sent reports on the tickets to ATC, but never deposited any money to pay for them. Garrett Barry, the owner of Dollar Travel, testified at Kraemer’s trial that he had the money but did not deposit it because he had some lawsuits pending against ATC. At the time of Kraemer’s trial, Barry was under investigation by the FBI. He took the fifth amendment when asked what had happened to that money. The airline ticket scam did not end in 1982. Airlines Reporting Corporation (ARC), the successor to ATC, filed a suit in federal court in Minnesota in 1985, alleging civil RICO violations and fraud in the issuance of airline tickets. The defendants are Dollar Travel, Garrett Barry, the Mi-chaeloffs, Kraemer, and other travel agencies and individuals. ARC alleged that in September and October of 1982 and between February and June of 1985 the travel agency defendants had issued airline tickets worth over $3 million without paying ARC for them. The agencies then went out of business. The district court granted a preliminary injunction against all the defendants restraining them from committing any further fraud against ARC and the airlines. This order is now on appeal in this court (Nos. 86-5138 and 86-5155), with argument having been heard in December 1986. As newly discovered evidence of Dale Michaeloff’s perjury, Kraemer offered a copy of a long affidavit submitted in the civil suit by William Z. Pentelovitch, ARC’s attorney. The affidavit summarizes his knowledge of the ticket scam based on extensive discovery in state court suits, which still are pending. Kraemer also submitted an eighty-one page “summary” of evidence obtained from ATC and ARC. This consisted primarily of lists of the tickets reported sold by four travel agencies (including Dollar Travel) but for which funds were never remitted. The affidavit and other documentation indicate that Dale Michaeloff probably was a major player in the scheme, but ARC has never been able to obtain service on him, and he has not been deposed. Kraemer argues that this new evidence shows that Michaeloff had a strong motive to lie about Kraemer’s actions, and that if the jury had known of it, they would have decided his case differently. Kraemer contends that the government’s case depended on proof that he actually stole the tickets from the travel agency. Kraemer asserts that in order to convict him, the jury must have believed that Michaeloff was an innocent businessman trying to help his wife, and that all of his testimony was truthful. A review of the transcript, however, shows that the government did not rely only on this theory. In his closing argument, the prosecutor pointed out to the jury that they could find Kraemer guilty whether they believed Michaeloff’s version or not, because even if Kraemer did not steal the tickets from Michaeloff, the evidence showed that he knew that they had been “stolen, converted, or taken by fraud,” 18 U.S.C. § 2314, and that he nevertheless transported them across a state line and used the mail to obtain cash refunds for them. (T. 712-13, 716). A review of the transcript shows that there was a great deal of conflicting testimony from Kraemer, Michaeloff, and Barry, and the jury well may have believed that they were all lying. Kraemer’s assertion that he took the tickets and requested refunds on them in complete ignorance of any wrongdoing is not very plausible in the first place, given the circumstances, and it did not stand up at all well under crossex-amination. After his conviction, Kraemer filed a motion for new trial based on newly discovered evidence. The motion was denied as without merit and he appealed this denial in his direct appeal of the conviction. The newly discovered evidence he submitted at that time consisted of copies of other fraudulent airline tickets that he claimed were filled out by Dale Michaeloff, and other documents intended to show that Mi-chaeloff himself was one of the principals in the ticket scheme. The evidence was thus somewhat different, but it was intended to show the same thing that Kraemer now seeks to show, namely, that Michae-loff committed perjury at Kraemer’s trial. Appellant has made the same argument before, both in his motion for new trial and on direct appeal. II. Appellant cannot raise the same issues in a § 2255 petition that have been decided on direct appeal or in a new trial motion, United States v. Gaus, 751 F.2d 1506, 1507 (8th Cir.1985) (per curiam); United States v. Sanders, 723 F.2d 34, 36 (8th Cir.1983) (per curiam). Kraemer recognizes this in his brief, but argues that the court should consider his motion because there is a substantial amount of newly discovered evidence — the Pentelovitch affidavit and the summary of information obtained from ARC. While it is true that this evidence is new and was not available earlier, it is merely cumulative. Kraemer argues that when the district court refuses to hear a § 2255 petition on grounds that the issues were previously decided, it must make a finding that the “ends of justice would not be served” by allowing reconsideration. He bases this argument on Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), a case involving successive § 2255 motions. It is far from clear that Sanders v. United States requires such a finding. Even if we accept the argument that it does, a rehearing in Kraemer’s case is not necessary because the new evidence merely reinforces evidence considered before. Even if we consider Kraemer’s arguments on their merits, he is not entitled to relief. One of his arguments is that the district court erred in refusing to grant him an evidentiary hearing to determine the truth and materiality of his allegations, based on newly discovered evidence that Michaeloff committed perjury at his trial. Kraemer cites Lindhorst v. United States, 585 F.2d 361 (8th Cir.1978), for the proposition that when newly discovered evidence is the basis for a § 2255 motion, the petitioner should prevail if the evidence meets the requirements for granting a new trial motion based on newly discovered evidence. The requirements are: (1) the evidence must be in fact newly discovered, that is, discovered since the trial; (2) facts must be alleged from which the court may infer diligence on the part of the movant; (3) the evidence relied upon must not be merely cumulative or impeaching; (4) it must be material to the issues involved, and (5) it must be of such nature that, on a new trial, the newly discovered evidence would probably produce an acquittal. Lindhorst, 585 F.2d at 365 n. 8 (quoting United States v. Pope, 415 F.2d 685, 691 (8th Cir.), cert. denied, 397 U.S. 950, 90 S.Ct. 973, 25 L.Ed.2d 132 (1969)). Appellant has not shown that his voluminous new evidence is not “merely cumulative or impeaching,” and, most importantly, he has not shown that if a new trial were held, it probably would result in an acquittal. At a second trial, if Michaeloff’s testimony were thoroughly impeached, Kraemer probably still would be convicted. His own lack of credibility as a witness, the testimony of law enforcement personnel about his admissions, his knowledge that the Michaeloffs had no money, the very high dollar value of the tickets in relation to his fee, and certain other facts would probably have convinced the jury that he knew the tickets were obtained by fraud. That is all that is required by the statute under which he was convicted: Whoever transports in. interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud ... shall be fined not more than $10,000 or imprisoned not more than ten years, or both. 18 U.S.C. § 2314. “ ‘[An evidentiary] hearing must be granted when the facts alleged in the motion would justify relief, if true____ United States v. Peltier, 731 F.2d 550, 554 (8th Cir.1984) (per curiam) (quoting Smith v. United States, 635 F.2d 693, 696 (8th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1397, 67 L.Ed.2d 368 (1981)). If the facts alleged in Kraemer’s motion were proven true, it would not prove him innocent. It would only prove that Michaeloff was also guilty of criminal acts and would not entitle Kraemer to any relief. Kraemer also argues that his conviction should be overturned because the prosecutor failed to disclose material exculpatory evidence to him as required by Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). This argument also fails, for two reasons. First, although impeachment evidence does fall within the Brady rule, United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985), the evidence is only “material” if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 105 S.Ct. at 3384. Accord United States v. Peltier, 800 F.2d 772, 777 (8th Cir.1986). As was noted above, even if the defense had been able completely to discredit Michaeloff, the jury likely would have found Kraemer guilty anyway. In addition, Kraemer does not actually allege that the prosecutor had evidence of Michaeloff’s participation in the ticket fraud. He argues that the information was “available” to the government and that they “could have checked” Michaeloff’s story by requesting business records (ticket sales reports submitted by Dollar Travel) from ARC. At the time of the trial, Garrett Barry already was under investigation by the F.B.I., and the prosecutors’ closing arguments and their questioning of Michaeloff indicate that they were suspicious about his story. However, Kraemer has not shown that they had in their possession any hard evidence that Michaeloff was part of the ticket scam, or that they knowingly allowed him to lie on the witness stand. The government is not required to search out exculpatory evidence for the defendant. United States v. Riley, 657 F.2d 1377, 1386 (8th Cir.1981). For the above reasons, the judgment of the district court is affirmed. . The Honorable Paul Benson, Senior United States District Judge for the District of North Dakota. . There was testimony from Marie Michaeloffs former lawyer that he had not been able to get full payment from the Michaeloffs, and that he told Kraemer that they had no money when he handed over his files on the case. . Skjonsby was a co-defendant in the case. She pled guilty to one count of the indictment. . Kraemer also asserts that Skjonsby perjured herself. At the trial she testified that Kraemer forged her signature on one of the refund checks; at her sentencing hearing she testified that his secretary did it. Kraemer has no new evidence on this point, and even if true it would not have made a difference in the result. . The same functions have been performed by the Airlines Reporting Corporation, Inc., since January 1, 1985. 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_state	21	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". UNITED STATES of America, Plaintiff-Appellee, v. Alexander TOWNS, Defendant-Appellant. No. 87-5602. United States Court of Appeals, Fourth Circuit. Argued March 11, 1988. Decided March 29, 1988. Russell P. Butler (Keiffer, Ditrani, Johnston, Butler & Reinstein, Camp Springs, Md., on brief), for defendant-appellant. Hollis Raphael Weisman, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., Baltimore, Md., on brief), for plaintiff-appellee. Before WIDENER and CHAPMAN, Circuit Judges, and McMILLAN, United States District Judge for the Western District of North Carolina, sitting by designation. CHAPMAN, Circuit Judge: This appeal presents the question of whether the Army and Air Force Exchange Service (AAFES) is an agency of the United States so that theft from the AAFES causes the government to suffer an actual property loss, subjecting the person accused of the theft to prosecution under 18 U.S.C. § 641. We conclude that AAFES is an agency of the United States, and a theft of its property causes property loss to the United States and 18 U.S.C. § 641 is applicable, and we affirm. I Appellant was convicted before a United States Magistrate of the theft of two “Pillow Sacks” from the Army and Air Force Exchange Service at Walter Reed Army Medical Center in Silver Spring, Maryland. He was sentenced to pay a fine of $25, plus a $25 special assessment. Appellant appealed to the United States District Court for the District of Maryland and claimed that property of the AAFES was not property of the United States and that he could not be found guilty under 18 U.S.C. § 641. The district court ruled against the appellant and sustained his conviction, 668 F.Supp. 454. The appellant has raised the same issue on appeal to our court. II There is no contention that theft or shoplifting from an AAFES store does not cause loss to the AAFES. The question is whether such loss constitutes a loss to the United States so that it may be the subject of a prosecution under 18 U.S.C. § 641. The appellant relies upon our decision in Keane v. United States, 272 F. 577 (4th Cir. 1921), in which we held that the Post Exchange at Fortress Monroe was not such a department of the United States and that one who conspired to defraud an agent of the Post Exchange should not be deemed guilty of conspiracy to defraud the United States. The precedential value of Keane ended with Standard Oil Co. of California v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611 (1942). In that case the question presented was whether the Post Exchange constituted an arm of the government of the United States or a department thereof. The court concluded: From all of this, we conclude that post exchanges as now operated are arms of the Government deemed by it essential for the performance of governmental functions. They are integral parts of the War Department, share in fulfilling the duties entrusted to it, and partake of whatever immunities it may have under the Constitution and federal statutes. 316 U.S. 485, 62 S.Ct. 1170. In Brethauer v. United States, 333 F.2d 302 (8th Cir.1964), the court was faced with a criminal prosecution for defrauding the United States under 18 U.S.C. § 1001, and the issue was raised whether an Army Post Exchange constituted an agency of the United States within the false statements statute. The Eighth Circuit found that under Standard Oil Co. of California v. Johnson “it is compellingly clear that a Post Exchange, although created by regulations, is an arm of the Government and an agency within the meaning of 18 U.S.C. § 1001.” Id. at 305. In Champaign-Urbana News Agency v. J.L. Cummins News Co., 632 F.2d 680 (7th Cir.1980), the court concluded that AAFES is an instrumentality of the United States for the purposes of federal antitrust legislation, that it is an integral part of the Department of Defense, and that it is an arm of the United States Government. In United States v. Hopkins, 427 U.S. 123, 96 S.Ct. 2508, 49 L.Ed.2d 361 (1976), the court answered the argument that the exchange services are not agencies of the federal government because they operated with “nonappropriated funds.” The court found that the exchange services are created and administered pursuant to the general authority granted to the Secretary of the Army and the Secretary of the Air Force by 10 U.S.C. §§ 3012 and 8012, that its nonappropriated-fund status did not change its character, and that the employees of the exchange were employees of the United States. Id. at 127, 96 S.Ct. at 2511. In Army and Air Force Exchange Service v. Sheehan, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982), the court stated, The AAFES, like other military exchanges, is an “ ‘ar[m] of the government deemed by it essential for the performance of governmental functions ... and partake[s] of whatever immunities it may have under the [C]onstitution and federal statutes.’ ” 456 U.S. at 733-34, 102 S.Ct. at 2121-22. We find no merit to appellant’s additional claim that 18 U.S.C. § 641 is void for vagueness. AFFIRMED. . Title 18, § 641 reads, in pertinent part: Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; ... if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. 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_const1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. J. W. McTIERNAN, Plaintiff-Appellant, v. Marvin FRANKLIN, Acting Secretary of the Interior of the United States of America, et al., Defendants-Appellees. No. 74-1266. United States Court of Appeals, Tenth Circuit. Argued Nov. 11, 1974. Decided Jan. 7, 1975. Jay R. Bond, Oklahoma City, Okl., for plaintiff-appellant. George Verity, Oklahoma City, Okl. (David T. Burleson, El Paso, Tex., on the brief), for defendants-appellees El Paso Nat. Gas Co., Inexeo Oil Co., Getty Oil Co., Freeport Oil Co. and R. G. Anderson. Peter B. Bradford, Oklahoma City, Okl. (Ray G. Moss, Oklahoma City, Okl., on the brief), for defendant-appellee Northern Nat. Gas Co. Dirk D. Snel, Dept, of Justice, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., William R. Burkett, U. S. Atty., James M. Peters, Asst. U. S. Atty., Oklahoma City, Okl., Edmund B. Clark, Dept, of Justice, on the brief), for defendant-appellee Secretary of the Interi- or. Richard L. Dugger, Dist. Atty., Sayre, Okl., for defendant-appellee Bd. of County Commissioners of Roger Mills County, Oklahoma. Wallace E. Robertson, Oklahoma City, Okl., for defendant-appellee, Statex Petroleum, Inc. Before MURRAH, HILL and HOLLOWAY, Circuit Judges. HILL, Circuit Judge. This action results from a Board of Land Appeals’ (Board) rejection of certain non-competitive oil and gas lease offers because of uncertain title. The applicant, J. W. McTiernan, filed suit in the United ■ States District Court for the Western District of Oklahoma seeking, by amended pleadings, reversal of the Board’s decision and an order directing it to reconsider the lease offers on the basis that the United States owned the minerals in question. The district court dismissed the action, and we affirm. At issue are five tracts of land located in Roger Mills County, Oklahoma. In 1939 or 1940 these tracts were sold for delinquent taxes and purchased at a tax resale by the County’s Board of Commissioners. Some time thereafter the Commissioners sold these tracts to the United States, reserving to the County all mineral rights for a period of fifty years. In December, 1971, J. W. McTiernan filed five non-competitive oil and gas lease offers covering these tracts with the Bureau of Land Management. The offers were rejected for the reason that the minerals were not yet owned by the United States. McTiernan appealed to the Board of Land Appeals. He contended that the County’s mineral reservations were void, thereby vesting title thereto in the United States as a matter of law, because the County acquired and sold the tracts in the state’s taxing process under which a grantee obtains a fee simple absolute. The Board acknowledged that McTier-nan had some support for his position but, because deeds to the tracts and government title opinions stated that the mineral rights were reserved to the County, found that title to the minerals was uncertain. On June 27, 1973, it affirmed the Bureau of Land Management’s decision on the grounds “that oil and gas lease offers may properly be rejected in the exercise of administrative discretion when there is a ‘mere uncertainty regarding title to oil and gas deposits.’ ” On July 16, 1973, McTiernan instituted suit against the Acting Secretary, alleging that the Board’s decision was an abuse of discretion because the evidence before it established that title to the mineral deposits was vested in the United States. The complaint requested that the Board’s decision be reversed and that a writ of mandamus be issued directing the Secretary to accept McTiernan’s lease offers. McTiernan’s subsequent motion to make the Secretary an additional party defendant was granted and an amended complaint was filed. A second amended complaint was filed on December 5, 1973, listing various oil and gas lessees of Roger Mills County, and the Board of County Commissioners, as defendants. This complaint requested that title to the lands in question be quieted in the United States. All of the defendants filed motions to dismiss. At the hearing on these motions McTiernan orally amended his pleadings, deleting therefrom his request for mandamus and instead requesting the court to reverse the Board’s decision and direct it to reconsider the lease offers on the basis that the United States owned the minerals. On April 4, 1974, the court dismissed the action on the grounds (1) the Secretary, acting through the Board, properly exercised his discretion in refusing to grant the leases; (2) that McTiernan lacked standing to sue; and (3) that the action was barred as to all defendants other than the Secretary by the 90-day statute of limitations for filing oil and gas contests. On appeal McTiernan contends (1) the Board’s decision was improper because it was based on the erroneous finding that title to the mineral rights was uncertain, and (2) title to the mineral rights is vested in the United States as a matter of law because the County’s reservation thereof is void under Oklahoma law. We do not believe the Secretary’s decision to reject McTiernan’s lease offers was improper. The Mineral Leasing Act, 30 U.S.C. § 181 et seq., gives the Secretary discretionary power to accept or reject oil and gas lease offers. Although a tract, if leased, must go to the first qualified applicant, the Secretary may refuse to issue any lease at all on a given tract. Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). Such is the situation here. McTiernan contends the Secretary abused this discretion because his decision refusing the offers was not premised on the fact that title to the minerals was vested in the United States under Oklahoma law. Although he proffered some support for this position, the deeds and title opinions which stated that the mineral rights were reserved to the County made such a conclusion questionable. Because the reservations may be valid, and the minerals therefore not subject to the Secretary’s disposition, the decision refusing McTiernan’s offers was proper. Under these circumstances the only alternative available to the Secretary, and the course McTiernan apparently believes should have been taken, would have been to administratively determine title to the mineral rights. Such a decision, however, can only be made in a quiet title action. Since McTiernan’s oil and gas lease offer does not give him a vested property right, Hannifin v. Morton, 444 F.2d 200, 203 (10th Cir. 1971), he has no standing to question title to the mineral rights. Clark v. Holmes, 31 Okl. 164, 120 P. 642 (1912). We therefore find it unnecessary to consider the effect of Oklahoma law on the mineral rights in question. Affirmed. . 30 U.S.C. § 226-2 provides in part: “No action contesting a decision of the Secretary involving any oil and gas lease shall be maintained unless such action is commenced within ninety days after the final decision of the Secretary . . See, e. g., 30 U.S.C. § 226(a), which provides: “All lands subject to disposition under this chapter which are known or believed to contain oil or gas deposits may be leased by the Secretary.” (Emphasis added). . 43 CFR § 2091.1 provides in part: “ [Applications . . . must be rejected . when approval ... is prevented by: (a) Withdrawal or reservation of the lands; * * * * * * (e) The fact that for any reason the land has not been made subject ... to the operation of the public land laws.” Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. SUSQUEHANNA TRUST & SAFE DEPOSIT CO. v. UNITED TELEPHONE & TELEGRAPH CO. et al. (Circuit Court of Appeals, Third Circuit. June 15, 1925.) No. 3309. 1. Corporations <@=477(l), 590(5) — Mortgage of after-acquired property valid; what property covered by mortgage given by corporation before consolidation determined. A mortgage by a public service corporation of after-acquired property is valid, but on. consolidation of the mortgagor with another corporation does not extend to property contributed by the latter, nor to other property of a new debtor, which has merely assumed the debt of the mortgage containing the after-acquired property clause. 2. Corporations <@=478 — Scope of after-acquired property clause in mortgage stated. A mortgage of its property by a corporation, containing an after-acquired property clause, extends only to property then owned and subsequently acquired by the mortgagor or by another in virtue of the mortgagor’s rights. 3. Estoppel <©=26 — Who are estopped by after-acquired property clause in mortgage stated. The estoppel raised by an after-acquired property clause in a mortgage to assert that the mortgage does not cover all the property and rights which it purports to cover operates against the mortgagor corporation and persons claiming under and in privity with it, but does not operate against others not so related, who desire to contest the lien on the ground that the property in question was acquired by another in its own right. 4. Appeal and error <@=1022(3) — Findings of master on conflicting evidence, approved by court, reversibla only for plain error. An appellate court will be slow to reverse findings of fact by a master, approved by the judge, on controverted evidence. 5. Evidence <@=230(3) — Admissions by mortgagor as to after-acquired property may be admissible in evidence. Admissions made by a mortgagor corporation after' execution of the mortgage, against the interest of the mortgagee, are not binding on the mortgagee, but may be admissible in evidence in a controversy between it and another on the question of fact whether certain property was after-acquired property of the mortgagor. Appeal from the District Court of the United States for the Middle District of Pennsylvania; Charles B. Wjtmer, Judge. Suit in equity by the Susquehanna Trust <& Safe Deposit Company against the United Telephone & Telegraph Company and others. From the decree, complainant appeals. Affirmed. Charles M. Clement, of Sunbury, Pa., and John G. Beading and Henry C. Hicks, both of Williamsport, Pa., for appellant. J. Fred Schaffer, of Sunbury, Pa., and Charles L. Miller and John E. Malone, both of Lancaster, Pa., for appellees. Before BUFFINGTON and WOOLLEY, Circuit Judges, and MOBBIS, District Judge. WOOLLEY, Circuit Judge. This case had its rise in the early days of the telephone, when numberless local corporations, not realizing the operative and commercial scope of the invention, built short lines and established small systems in limited areas. They did this largely on borrowed money. The outcome of these adventures, as their history shows, was feeble success or complete failure, resulting ultimately in receiverships or absorption by' larger concerns. After purchase or merger, properties thus acquired, being already pledged for money borrowed, were usually pledged again by the absorbing corporations, and still again by larger absorbing corporations, until on the original properties rested many liens of different sizes and priorities. The instruments creating such liens — whether mortgages or deeds of trust — frequently contained clauses covering after-acquired property and on foreclosure there often arose the question as to which of many instruments was paramount in. respect to property thus acquired and, accordingly, which of many liens thereon was first. That was the situation and that is the question in this case. Three telephone companies, all incorporated under the laws of Pennsylvania, are here involved. They are: North & West Branch Telephone Company, Central Commercial Telephone Company, and United Telephone & Telegraph Company. In this group, the United (as its name denotes) is the absorbing company; the other two are the companies absorbed. The North & West Branch was chartered in 1896 for the transaction of the telephone business in certain counties of Pennsylvania. Among them was Lycoming county, which embraces the borough of Jersey Shore, the area here in controversy. In 1900, this company executed a first mortgage on all its property, then owned and thereafter to be acquired, and delivered it to the Susquehanna Trust & Safe Deposit Company (the complainant in this suit) as trustee to secure $100,000 of its bonds. These bonds were issued and sold and with the money received the North & West Branch built lines in Lycoming 'county and (the complainant maintains) had by July, 1901, built a part of a line in the borough of Jersey Shore and had installed at least one telephone. The Commercial Company also was chartered to construct and operate a telephone system in certain counties of Pennsylvania including Lycoming county, and under authority of an ordinance, granted to it and its successors by the borough of Jersey Shore, it constructed at least one short line in that territory. On July 1, 1901, the Commercial sold all its property to the United. Immediately thereafter the latter company proceeded to enlarge and extend the system in the borough of Jersey Shore and by the spring of 1902 had completed it. In • the meantime the United had executed and delivered to the Equitable Trust Company, one of the respondents, its mortgage for $2,000,000 covering all its property. In August, 1902, following negotiations and in compliance with the provisions of an Act of the Assembly of Pennsylvania expressly passed for the purpose, the North & West Branch disposed of all of its corporate rights, franchises and privileges and conveyed all its property, subject to all of its debts and liabilities, to the United Company, and then ceased to exist. Having absorbed the rights and properties of these two companies, the United continued the operation of the lines which another had started and it had completed in the borough of Jersey Shore. Some years later the United went into the hands of receivers. Defaults in interest payments on its assumed obligations occurring, the Susquehanna Trust & Safe Deposit Company, the mortgagee of the North & West Branch, by permission of the court, instituted a proceeding to foreclose its mortgage. Immediately there arose a question as to whether the mortgage of the North & West Branch, held ’ by the Susquehanna Trust & Safe Deposit Company, covered the telephone line in the borough of J ersey Shore as after-acquired property within the terms of the mortgage. The answer to that question depended upon whether the extension of the line by the United, after it had acquired the property of the Commercial, was an extension of the Commercial’s property or was an extension of .the property of the North & West Branch and was, therefore, after-acquired property of that company within the clause of its mortgage, binding upon the United when it acquired the property of the North & West Branch subject.to its liens. This question, having grown into an active dispute, was presented to the District Court of the United States for the 'Middle District of Pennsylvania by bill of complaint filed in this ease by the Susquehanna Trust & Safe Deposit Company against the United Telephone & Telegraph Company, William B. McCaleb, its receiver, and the Equitable Trust Company, its mortgagee, in which the complainant asserted that at the time of the sale of the property to the United the North & West Branch had constructed and owned a very small partially constructed line in the borough of J ersey Shore, alleged that the extensions by the United were extensions of that line and therefore were after-acquired property covered by its mortgage and prayed that the court declare the mortgage of the United to the Equitable Trust Company secondary and subordinate to the mortgage of the North & West Branch, and that the purchaser at a sale on foreclosure of the latter mortgage will take title to the property therein described, including that in the borough of Jersey Shore, free and discharged •from the lien of the mortgage of the United to the Equitable Trust Company. The court referred the matter to a master who resolved all questions of fact against the complainant and, pn applying the law to the facts he had. found, recommended a decree denying priority to the lien of the mortgage of the North & West Branch on property in the borough of Jersey Shore and prescribing a plan of sale and method of distributing the proceeds in the foreclosure proceedings. After a hearing on exceptions, the court adopted the report of the master and embodied his recommendations in the decree now appealed from. Notwithstanding the many assignments of error, all the points for argument and all questions involved in this appeal narrow down to two propositions: First, did the trial court err, as a matter of law, in affirming the master’s conclusions of law that the North & West Branch mortgage to the complainant, under its after-acquired property clause, does not cover the telephone property afterwards constructed in the borough of Jersey Shore by the United Company? Second, did the trial court err in sustaining the master’s findings of fact that the Jersey Shore property was not built by the United as an accession or addition to the North & West Branch telephone property? The answer to the first question real ly depends upon the answer to the second, for, as stated by Mr. Justice Field as long ago as the decision in Thompson v. White Water Valley R. Co., 132 U. S. 68, 73, 10 S. Ct. 29, 33 L. Ed. 256, the validity of mortgages given by pubEe utüity companies upon property not in, existence at the time but subsequently acquired is not an open question, citing Galveston Railroad Co. v. Cowdrey, 78 U. S. (11 Wall.) 459, 20 L. Ed. 199. In that case there were several deeds of trust which in terms covered after-acquired property. The court held (481) that they estopped the company (the grantor there or the mortgagor here) and aE persons claiming under them, and in privity with them, from asserting that they did not cover all the property and rights which they professed to cover. The court said: “Had there been but one deed of trust, and had that been given before a shovel had been put into the ground towards constructing the railroad, yet if it assumed to convey and mortgage the railroad, which the company was authorized by law to build, together with its superstructure, appurtenances, fixtures, and roEing stock, these several items of property, as they came into existence, would become instantly attached to and covered by the deed, and would have fed the estoppel created thereby. No other rational or equitable rule can be adopted for such eases.” See, also, Porter v. Pittsburgh Steel Co., 122 U. S. 267, 283, 7 S. Ct. 1206, 30 L. Ed. 1210, Branch v. Jesup, 106 U. S. 468, 1 S. Ct. 495, 27 L. Ed. 279, and Commercial Trust Co. v. Chattanooga Ry. & L. Co. (D. C.) 281 F. 856, 859, and eases therein cited. Whüe this indubitably is the law of mortgages and deeds of trust covering after-acquired property, yet it does not go to the extent of holding that, under the usual after-acquired property provision, the lien of such a mortgage or deed' of trust, on consolidation of a mortgagor corporation with another, spreads to the property contributed by the other constituent. Met. Tr. Co. v. Chicago, etc., R. Co., 253 F. 868, 871, 165 C. C. A. 348; certiorari denied 248 U. S. 586; nor does it extend to other property of a new debtor who, as here, has merely assumed the debt of the mortgage containing the after-acquired property clause. Miss. Valley Tr. Co. v. Sou. Tr. Co. (C. C. A.) 261 P. 765, 767. A mortgage containing such a clause extends only to the property, presently and prospectively held, which it professes to cover (Thompson v. White Water Valley R. Co., supra), and only to property then owned and subsequently acquired by the mortgagor or by another in. virtue of the mortgagor’s rights (New York, etc., Co. v. Louisville R. Co. [C. C.] 102 F. 382). And so, the estoppel (which such an instrument raises) from asserting that the .mortgage does not cover all the property and rights which it professes to cover operates against the mortgagor company and against aE persons claiming under and in privity with it, but it does not operate against others not so related who desire to contest the Een of such an instrument as to whether the property in question has been afterward acquired by the mortgagor or under the rights of the mortgagor, or by another under its own rights. Trust Company of America v. City of Rhinelander (C. C.) 182 F. 64, 69. This particularly is the situation of the Equitable Trust Company, mortgagee of the United Company under a mortgage which antedates the purchase by the United of the property of the North & West Branch, and which therefore antedates any relation between those two companies. When one in this position raises such a question, the contest becomes purely one of fact. Thus we come to the second question: Did the trial court err in sustaining the master’s finding of fact that the Jersey Shore property was not.'buUt by the United as an accession or addition to the North & West Branch telephone property? On this question the substance of the master’s findings is that neither the North & West Branch, nor the United as successor of the North & West Branch, ever had any municipal authority to buüd telephone lines in the borough of Jersey Shore; that the Commercial, and its successors, had such municipal authority; that the Commercial started the line in question and the United, as the successor of the Commercial, completed it; that, accompanying the deed from the North & West Branch to the United, conveying aE its property to the latter, there was attached a map, expressly made a part of the deed, which showed that the line of the North & West Branch did not extend west of Larry’s creek in Lycoming county and did not enter the borough of Jersey Shore; that the North & West Branch had no lines in the borough of Jersey Shore at the time it executed the mortgage to the complainant or at the time it sold its property to the United; that after its purchase of the Commercial property the United began the extension and enlargement of the Commercial’s line in Jersey Shore and completed it prior to the time the United bought the property of the North & West Branch; that the extension made by the United was an extension of or an accession to the line of the Commercial and not of the line or under the rights of the North & West Branch; and that, in consequence, the property which the United thus acquired was acquired in its own right and not under rights of the North & West Branch to which it had succeeded by purchase. Mississippi Valley Trust Co. v. Southern Trust Co. (C. C. A.) 261 F. 765, 767. The master made these findings on conflicting evidence and the learned trial court approved them by its decree. Under the familiar rule, this appellate court will be slow to reverse findings of fact made by a master and approved by the judge on controverted evidence. In order, however, to determine whether in making these findings these two judicial officers made a clear mistake of fact or inadvertently disregarded or clearly misapprehended the evidence, we have read the record. Speaking negatively, we have failed to find error; speaking affirmatively, we have made the same findings. In announcing our judgment we do not regard it necessary to review and appraise the testimony in this opinion. We shall advert only to one matter on which the appellant, in urging error, has laid particular stress, which is the admission in evidence of the map accompanying the deed by which the North & West Branch conveyed its property to the United and which did not show any lines of the North & West Branch extending into the borough of Jersey Shore, thereby indicating that lines of the North & West Branch in the borough of Jersey Shore did not exist. The defendants argue that the map showing no line of the North & West Branch in that borough operates as an estoppel against the Susquehanna Trust & ,Safe Deposit Company, the mortgagee, in enforcing the mortgage of the North & West Branch against property in the borough of Jersey Shore. With this contention the master and the court seemed impressed. The Trust Company, however, holds that the mortgage antedated the act of the North & West Branch in embodying such a map in its deed of conveyance to the United and therefore it, the mortgagee, is not bound by what it regards as res inter alios acta. We are of opinion that in a measure the Trust Company is right; that is, the Trust Company mortgagee is not bound and therefore is not estopped by this admission of the mortgagor against its interest, made subsequent to the execution of the mortgage. Yet this admission of the mortgagor against interest was evidence. While not estopping or binding the mortgagee, it was admissible like other evidence to prove the issue of fact then under consideration as to whether the North & West Branch had any property in the borough of Jersey Shore at the time of the conveyance; that is, at the time when privity between the two companies first arose, which was after the United had completed the extension of the Commercial’s line, and, accordingly, to prove whether this property was or was not property of the mortgagor falling under the after-aequired property clause of its mortgage. We do not regard the map either with the confidence of the respondents or with the concern of the complainant as evidence weighing heavily in determining this issue of fact, for without the map we think the evidence amply sustains the master’s findings. Applying the law to the facts, the decree is affirmed. 39 S. Ct. 184, 63 L. Ed. 434. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. PEOPLE of the State of New York, Appellants, v. Gamble LATROVE, Jr., James P. Knowles, and William S. Erichs, Trustees of Thermlo-dyne Radio Corporation, Bankrupt, Appellees. Circuit Court of Appeals, Third Circuit. October 31, 1928. No. 3897. Albert Ottinger, Atty. Gen. (Robert P. Beyer, Deputy Asst. Atty. Gen., of counsel), for appellant. James I. Boyce, of Wilmington, Del. (Ralph M. Arkush, of New York City, of counsel), for appellees. Before WOOLLEY and DAVIS, Circuit Judges, and KIRKPATRICK, District Judge. See, also, 26 F.(2d) 716. PER CURIAM. Affirmed, on the opinion of Judge Morris in 26 F.(2d) 713. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_typeiss	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. In the Matter of AIR AND SPACE MANUFACTURING, INC., Debtor. Kenneth K. IRVING and Ralph D. Irving, Appellants, v. Homer E. CAPEHART, Trustee in Reorganization, Appellee. No. 16709. United States Court of Appeals Seventh Circuit. April 29, 1968. Frank E. Gilkison, Jr., Muncie, Ind., John R. Carr, Jr., Donald A. Schabel, Indianapolis, Ind., for appellants, White, Haymond, Pierce, Beasley & Gilkison, Muncie, Ind., Buschmann, Carr & Scha-bel, Indianapolis, Ind., of counsel. Alan I. Klineman, Indianapolis, Ind., for debtor. Homer Earl Capehart, Jr., Klineman, Rose & Wolf, Krieg, DeVault, Alexander & Capehart, Indianapolis, Ind., for ap-pellee. Before DUFFY, Senior Circuit Judge, and SCHNACKENBERG and FAIRCHILD, Circuit Judges. DUFFY, Senior Circuit Judge. A motion by the trustee to dismiss the appeal was taken with the ease. We deny the motion to dismiss and proceed to consider the case on the merits. On March 21, 1967, a petition for a reorganization of Air and Space Manufacturing, Inc. under Chapter X of the Bankruptcy Act, was filed in the District Court by three of its creditors. On April 7, 1967, the petition was approved by the Court as properly filed, and Homer E. Capehart, Esq., was appointed trustee. An order confirming him as trustee was entered on July 5, 1967. On July 10, the trustee petitioned for an extension of time to file a plan of reorganization. On August 8, 1967, the trustee petitioned for a further extension to file such a plan, and the Court extended the time to September 1, 1967. No plan was filed and no further extensions were sought or granted. In his petition filed October 5, 1967, the trustee reported that he had investigated the feasibility of reorganizing the debtor as a going business, but had concluded that it would be in the best interests of all persons to liquidate the real and personal property of the debtor. The Court entered an order on October 5, 1967, directing the trustee to offer the personal and real property of debtor for sale at public auction on November 14, 1967. The order also directed certain persons including the Irvings, claiming liens on debtor’s property, to show cause on October 19, 1967, why the property of debtor should not be sold free and clear of the claimed security interests or liens, with said security liens, if valid, to attach to the proceeds of the sale. The Irvings and the trustee filed a stipulation at the hearing on October 19, 1967, wherein it was recited that the trustee agreed that the real estate of the debtor upon which the Irvings claimed a first mortgage lien, should not be sold for less than $235,000 without the consent of the Irvings. Further, that the Irvings enter no objection to the sale of the real estate free and clear of their lien, and that the lien, to the extent valid, attach to the proceeds from the sale. On October 26, 1967, the trustee reported to the Court the terms of an offer from Ben Selig to purchase all of the assets of the estate. The creditors and stockholders were notified that the proposed auction sale had been postponed and that debtor’s property had been appraised at $355,723.75. On November 20, 1967, appellant Kenneth K. Irving tendered an offer to purchase all of the assets. The Selig offer and the Irving offer were considered at a hearing before the Court on November 20, 1967. The Court took both offers under advisement until December 1, 1967. Kenneth K. Irving tendered an amended offer on November 24, 1967 wherein he increased the cash portion of his previous offer by $18,000. At the hearing on December 1, 1967, two cash offers were made, the higher of the two being from the Toledo Industrial Machine Corporation, in the total amount of $333,000. These offers were considered by the Court along with the Selig and Irving offers. The Court announced its intention to approve the Toledo offer but granted the parties concerned time to file objections to such offer. Objections were filed. Thereafter, the trustee filed, his response to the objections. The Court approved the sale of debtor’s assets to Toledo. This appeal followed. We consider first the claim of appellants that the District Court lacked jurisdiction to authorize a liquidation of the debtor’s assets in a Chapter X proceeding. • Appellants urge that as no plan of reorganization had been filed, the provisions of Section 236(2) of the Bankruptcy Act became applicable. Section 236(2) provides that if no plan of reorganization is proposed within the time fixed or extended by the judge, the judge shall, after a hearing on notice, enter an order either adjudging the debt- or a bankrupt and directing that bankruptcy be proceeded with, or dismissing the proceedings under Chapter X “as in the opinion of the judge may be in the interests of the creditors and stockholders.” Appellants argue that in view of the wording of the statute, the Court had no jurisdiction or power to entertain the trustee’s petition to sell the debtor’s property free and clear of liens, and that all of the proceedings had on such petition are null and void. This case poses the unique problem of reconciling, if possible, 11 U.S.C. § 516 (3) with 11 U.S.C. § 636(2). A number of cases, including several from this Circuit, have upheld the power of a district judge in a Chapter X proceeding, to order the sale of assets under 11 U.S.C. § 516(3). In Re Lorraine Castle Apts. Bldg. Corp., Inc., 149 F.2d 55 (7 Cir., 1945); In Re Marathon Foundry & Machine Co., 228 F.2d 594 (7 Cir., 1955); Frank v. Drinc-O-Matic, Inc., 136 F.2d 906 (2 Cir., 1943); In Re V. Loewer’s Gambrinus Brewery Co., Inc., 141 F.2d 747 (2 Cir., 1944); In Re Solar Mfg. Corp., 176 F.2d 493 (3 Cir., 1949); In Re The Sire Plan, Inc., 332 F.2d 497 (2 Cir., 1964). With reference to 11 U.S.C. § 636(2), Eemington states that in such a ease, 11 U.S.C. § 636(2) states the judge shall dismiss the proceeding or adjudge the debtor bankrupt and proceed with the bankruptcy. Eemington also states that the Court “ * * * cannot order liquidation of the estate. Chapter X contemplates either a dismissal or liquidation in ordinary bankruptcy. It does not contemplate a liquidation in a Chapter X proceeding.” The foregoing view may be contrasted with another Eemington view in discussing 11 U.S.C. § 516(3), power of sale. “That a sale may force liquidation is not a controlling consideration, although authority to sell may be refused where the result would be enforced liquidation, or would make reorganization impossible.” It should be noted that 11 U.S.C. § 516(3) states “Upon the approval of a petition, the judge may, in addition to the jurisdiction, powers, and duties in this chapter * * * ” (Emphasis supplied). In our view, this language can only mean that under appropriate circumstances, the court has the power to order a sale in spite of the language used in 11 U.S.C. § 636(2). Had the assets of the debtor been perishable, it is clear the court would have the power to authorize a sale thereof. Here, much of the machinery was precision equipment stored and unused in an unheated building. Such storage involved considerable expense to the estate. The Court found it would be in the best interests of the creditors and the estate that such machinery and equipment be sold promptly to avoid further deterioration. In Re The Sire Plan, Inc., 332 F.2d 497 (2 Cir., 1964) the Court upheld the District Court’s decision to sell an uncompleted hotel before a reorganization plan was submitted by the trustee. The Court, at page 499, said “ * * * the partially constructed building is a ‘wasting asset’ and can only deteriorate in value the longer it remains uncompleted.” The general rule dispositive of this issue was stated in In the Matter of Northern Ill. Development Corp., 324 F.2d 104, 108 (7 Cir., 1963) — “It has been recognized that where a sale of all the assets of a debtor in a proceeding designed for the purpose of effecting reorganization rather than liquidation is justified because of the existence of an emergency warranting such sale the fact that the sale is not in aid of a reorganization plan and will in effect result in a liquidation does not require that the sale await a liquidation in a straight bankruptcy proceeding.” We find no error in the District Court’s determination. The stipulation between the trustee and the Irvings dated October 19, 1967, is of controlling importance. It was signed by the two attorneys for the trustee and by an attorney for the Irvings, and was approved by the District Judge. There is no claim here that the signing of the stipulation by Irvings’ attorney was obtained by fraud or that such signature was not authorized by the Irv-ings. True it is the attorney for the Irvings now says that the stipulation was signed under the belief that the property of the debtor was to be sold at an auction sale November 14, 1967 theretofore authorized by the Court, and that the provision therein for sale “at public or private sale” had been overlooked. The stipulation is not so restrictive as to limit the auction sale to November 14, 1967. We hold the Irvings are bound by the stipulation. We hold specifically that the Irvings are bound by the provision of the stipulation — “The Irvings enter no objection to the sale of the real estate free and clear of their alleged lien, with their lien, to the extent valid, to attach to the proceeds from the sale.” A further provision of the stipulation provides that “ * * * if the property of the Debtor is sold in bulk, including both real and personal property, the Trustee shall have the sole right to apportion the proceeds from said sale as between the real and personal property, so long as the Trustee apportions at least two hundred thirty-five thousand ($235,-000) Dollars to the real estate. * * * ” The Irvings strongly urge that the $235,000 upset price mentioned in the stipulation was a minimum limit, but claim that the trustee is now seeking to have it also regarded as the maximum limit. The provision in paragraph 3 of the stipulation is that “If the property of Debtor is sold in bulk, including both real and personal property, the Trustee shall have the sole right to apportion the proceeds from said sale as between real and personal property, so long as the Trustee apportions at least $235,000 to the real estate. * * * ” This provision of the stipulation does not give the trustee unlimited arbitrary authority in apportioning the proceeds of the sale between real and personal property. The District Court should pass judgment on the reasonableness of any such apportionment that may be made by the trustee. Appellants contend that the District Court committed error when it did not accept their bid for the real and personal property since they allege it was the highest bid. The District Court held that “The validity of the alleged liens of the Objectors having been challenged by the Trustee, the Court has the discretionary power to order said property sold free and clear of such liens, in order to preserve the value of the res, pending the ultimate determination as to which party is entitled to the proceeds (Citations omitted).” We agree with the Court on this holding. A sharp difference of opinion has been presented as to whether the Irvings’ proof on file herein is prima facie evidence of its validity and amount. The trustee argues that such a claim in a Chapter X proceeding is not prima facie evidence of either its validity or amount, citing In Re Annin & Co., 95 F.2d 381 (2 Cir., 1938), a case which arose under 77B of the Bankruptcy Act. However, Remington expresses a contrary view. He relies on Whitney v. Dresser, 200 U.S. 532, 26 S.Ct. 316, 50 L.Ed. 584 (1906) which interpreted section 57(f) of the Bankruptcy Act. Since section 57(f) is very similar to section 196 of the Chandler Act, 11 U.S.C. § 596, Remington reasons that the Whitney doctrine is applicable to Chapter X reorganizations. We agree that such a rule may be valid as a general proposition but it is not controlling here. The validity of the lien has been challenged. The Court should pass on the question of validity of the lien without being bound by such a rule. We hold that in evaluating a lien claimant’s bid, it need not be assumed that the lien is valid. The amount of the lien should be determined after both sides have had the opportunity of submitting proof. The order of the District Court dated December 31, 1967, approving a sale of debtor’s property and overruling appellants’ objections to the sale, is affirmed. The case is remanded to the District Court for further appropriate proceedings not inconsistent with this opinion. Affirmed. . The Irvings claim the amount due on the debt secured by their first mortgage was $306,945 as of June 30, 1967. . The Irvings contend that their bid was at least $32,000 greater than the Toledo bid. Irvings’ bid was not a complete cash offer. The offer contemplated the satisfaction of a first mortgage which the Irvings held on the real estate of the debtor. . 11 U.S.C. § 636(2). . 11 Remington on Bankruptcy, Sec. 4667 at 508 and 509 (Rev.Ed.1961). . 11 Remington on Bankruptcy, Sec. 4400 at 93 (Revised Ed., 1961). . 11 Remington on Bankruptcy, Sec. 4524, at pp. 244, 245 (Rev.Ed., 1961). Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_appfed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Lisa Kay HOWARD, by next friend and mother, Brenda Howard LEE, and Laura Michelle Howard, by next friend and mother, Brenda Howard Lee; Mary A. Parris, Widow of Allie Parris, deceased; John Howard and Brenda Howard Lee, as Joint Administrators of the Estate of Ronald Howard, Plaintiffs-Appellants, v. Paul M. ALFREY and Duff's Enterprises, Inc., Defendants, Parris Roofing and Sheet Metal Company and American Casualty Company of Reading, Pennsylvania, Intervenors-Appellees. No. 82-8191. United States Court of Appeals, Eleventh Circuit. Feb. 10, 1983. E. Lamar Gammage, Jr., Cedartown, Ga., for plaintiffs-appellants. Smith, Shaw, Maddox, Davidson & Graham, William E. Davidson, Jr., C. Wade Monk, Rome, Ga., for intervenors-appellees. Before HILL and VANCE, Circuit Judges, and TUTTLE, Senior Circuit Judge. JAMES C. HILL, Circuit Judge: This appeal asks us to determine whether a workers’ compensation insurer is entitled to subrogation rights granted under Tennessee law when the insurer makes initial direct payments consistent with the Tennessee award schedule, but it is later determined that the award is payable under Georgia law. Georgia does not allow subrogation in this context. The district court ruled that Georgia courts would recognize the insurer’s subrogation rights for the payments unilaterally paid under the Tennessee schedules. We disagree and reverse. I. The facts leading to this proceeding are not disputed. Allie Parris and Ronald Howard died as a result of an automobile collision in Murray County, Georgia on March 6, 1980. Both decedents were residents of Tennessee and were employees of Parris Roofing & Sheet Metal Company. Parris Roofing is located in Tennessee, but does a considerable amount of business just over the state line in Georgia. When the accident occurred, decedents were engaged in the course of employment. American Casualty Company provides workers’ compensation insurance to Parris Roofing. Following the accident, Parris Roofing and American Casualty initiated direct payment to the dependents/survivors of decedents. These payments were calculated pursuant to the Tennessee Workers’ Compensation Act, which authorizes weekly payments of $107.00 for 400 weeks. Tenn.Code Ann. § 50-1010. On February 25,1981, however, the dependents/survivors of both decedents applied for a hearing under Georgia Workers’ Compensation Act. The claimants selected Georgia because Georgia law provides slightly higher weekly benefits of $110.00 per week for 400 weeks. See Ga.Code Ann. § 114r-413. In addition, unlike the Tennessee Act, the Georgia Act does not grant employees or insurers subrogation rights. An Administrative Law Judge (ALJ) considered the case and determined that Georgia had jurisdiction over the claims. Accordingly, the ALJ awarded compensation benefits to claimants under Georgia law. At the request of American Casualty, the ALJ also granted the insurer dollar for dollar credit for the payments already paid to claimants. As of the date of the ALJ’s order, American Casualty had paid $9,059.00 to the survivors/dependents of Allie Parris and $9,059.00 to the survivors/dependents of Ronald Howard. Thereafter, all payments were made at the higher Georgia levels. In addition, American Casualty paid claimants the difference between the $9,059.00 paid to each group of survivors/dependents and the amount which would have been paid under Georgia law from the date of decedents’ death until the date of the ALJ’s order. The survivors/dependents also filed three related wrongful death actions in federal district court. Defendants in these actions were Paul M. Alfrey, the driver of the trailer truck which struck Allie and Parris’ truck, and Alfrey’s employer, Duff Enterprises. The actions were consolidated in the district court, but ultimately were set-tied. On July 21, 1981, however, Parris Roofing and American Casualty moved to intervene in an effort to assert a subrogation lien. Accompanying the motion was a complaint in which the intervenors asserted a vested right under the Tennessee subrogation statute to recover so much of the proceeds of any settlement as would reimburse them for the benefits paid under the Tennessee Act. The plaintiffs did not respond to the intervenors complaint; however, defendants did respond. At the consent of all parties, intervention was granted. Shortly thereafter, the intervenors and defendants filed cross-motions for summary judgment on the subrogation claim. Defendants, intervenors, and plaintiffs all filed briefs with respect to the summary judgment motions. Upon consideration of the briefs, the district court granted the intervenor’s motion and denied defendants’ motion. The court treated the latter motion as that of both defendants and plaintiffs. Plaintiffs now appeal this judgment of the district court. II. Initially, appellees argue that appellants are barred procedurally from objecting to the district court’s summary judgment for failure to respond to appellees' intervening complaint. Pursuant to Rule 24(c) of the Federal Rules of Civil Procedure, appellees’ motion to intervene was accompanied by a complaint setting forth the alleged subrogation rights under Tennessee law. Because appellants failed to respond, appellees maintain that appellants have admitted the allegations made in the complaint as prescribed in Rule 8(d). Rule 8(d) provides: EFFECT OF FAILURE TO DENY. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. Fed.R.Civ.P. 8(d) (emphasis supplied). In analyzing the applicability of Rule 8(d), the obvious question is whether appellees’ intervening complaint is a pleading to which a responsive pleading is required. Appellees analogize their complaint to an original complaint to which a responsive pleading is required. Fed.R.Civ.P. 7(a). Appellants maintain that this argument was raised and rejected in Youngstown Sheet & Tube Co. v. Lucey Products Co., 403 F.2d 135 (5th Cir.1968). Neither position is entirely correct; however, we find in Youngstown persuasive dictum so as to conclude that appellants’ failure to respond to the intervening complaint does not preclude this appeal. In Youngstown, the former Fifth Circuit observed that nothing in Rule 7(a) or any other Rule indicated whether a response was allowed or required to a complaint in intervention. 403 F.2d at 139. In light of this ambiguity, the court suggested that perhaps Rule 8(d) does not demand a denial of facts in intervention. Id. Nevertheless, the court refused to commit itself on a definite construction of Rule 8(d), since such a construction was not essential to the disposition of the appeal. Id. Instead, the court relied upon the facts and circumstances of the ease and on the premise that federal rules should permit adjudication of the merits of a dispute whenever possible. Id. at 139-40. Similarly, it is unnecessary in this case to proclaim a hard and fast rule. Rule 8(d) may or may not apply to a complaint accompanying a plea of intervention. What is important is that the issue of appellees’ subrogation rights was adequately presented to the district court. Defendants filed a responsive pleading to the intervenors’ complaint and appellants later adopted that position. All parties, including appellants, filed briefs with respect to the cross motions for summary judgment. Moreover, the district court treated defendants’ summary judgment motion as the plaintiffs’ motion as well. In fact, the court concluded its order, “ACCORDINGLY, intervenors’ summary judgment motion is GRANTED; plaintiffs’ and defendants’ motions for summary judgment are DENIED.” Record, at 364. Recognizing that “[rjules of practice and procedure are devised to promote the ends of justice, not to defeat them,” Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941), we reject appellees’ argument that appellants are estopped from bringing this appeal. III. Turning to the merits of the appeal, the general principle of law with respect to an insurer’s subrogation rights when a conflict of law arises is as follows: As to third-party actions, if compensation has been paid in a foreign state and suit is brought against a third-party in the state of injury, the substantive rights of the employee, subrogated insurance carrier and the employer are ordinarily held governed by the laws of the foreign state 4 A. Larson, The Law of Workmen’s Compensation § 88.00 (1982). The critical question therefore is whether the disputed cornpensation was paid under Tennessee or Georgia law. Appellees maintain that because initial direct payments were calculated under the Tennessee Act, that Tennessee subrogation rights vested immediately upon the insurer’s voluntary payment. Appellants urge that the Georgia ALJ effectively transferred total jurisdiction to Georgia and that all amounts were paid under the Georgia Act. In support of the claim that Tennessee subrogation rights vested immediately upon payment, appellees rely upon Spengler v. Employers Commercial Union Insurance Co., 131 Ga.App. 443, 206 S.E.2d 693 (1974) (application for cert. denied). Spengler, however, is weak support for this position. Initially, Spengler is a decision by the Georgia Court of Appeals construing the effect of repeal of the Georgia subrogation statute and not its Tennessee counterpart. In addition, Spengler was a consolidated appeal by insurance companies who had paid compensation to claimants as required under Georgia law. The insurance companies also complied with the notice of claim requirements which at that time were embodied in the Georgia Act and were necessary to preserve subrogation and lien rights. 131 Ga.App. at 443-44, 206 S.E.2d at 695. Thereafter, the individual claimants initiated lawsuits against third-party tort-feasors. While these suits were pending, however, the Georgia subrogation statute was repealed. Id. The Georgia Court of Appeals ruled that because compensation had been paid properly under the Georgia Compensation Act, and notice requirements had been satisfied, the insurers’ subrogation rights had vested prior to the statutes repeal. Moreover, the court could find nothing to suggest that repeal of the statute warranted retroactive application. 131 Ga.App. at 447-48, 206 S.E.2d at 697. Nowhere in Spengler, however, is there any indication that the original compensation paid was arguably payable under the law of another state. In contrast, the present case raises a significant question as to whether appellees’ payments were made under the Tennessee Worker’s Compensation Act or whether they were made and calculated pursuant to the Georgia Act from the initial date of injury. Clearly, the ALJ anticipated that appellants’ rights under the Georgia Act arose on the date of the accident and that compensation was payable under Georgia law from that point onward. After determining that Georgia had jurisdiction over the claims, the AU also addressed the subrogation issue. The real issue in this case is the subrogation rights of the employer /insurer. Under Tennessee Law they would have such a right whereas under Georgia’s Law there is no subrogation. While this is not directly a payment of compensation it does for all practical purposes directly effect what compensation benefits, if any, will be paid. Should the claimants make a substantial recovery from the third party tort-feasor the subrogation aspects could result in claimants having to reimburse the defendants 100% of any payments made and/or losing entitlement to any future payments. The ultimate effect of this could result in a claimant receiving no actual compensation benefits. The legislature of this state in its wisdom repealed the subrogation laws. I see no reason why this claimant should be denied benefits in Georgia merely to give an employer/insurer subrogation rights our legislators rejected. Record, at 22. Appellees vigorously maintain that the ALJ was without power to determine the applicability of Tennessee subrogation rights. Assuming appellees are correct, it does not appear that the ALJ’s observation was intended to decide the issue. Indeed, at the time of his order, there was not a foreseeable settlement or award to which appellees could claim a subrogated interest. What is significant from his observation is that the ALJ clearly expected that the amount awarded claimants under the Georgia Act would not be encumbered by a Tennessee subrogation lien. Moreover, it was upon this assumption that appellees were granted full dollar for dollar credit towards the Georgia award for the earlier amounts paid, so long as the earlier payments were supplemented to equal the amount properly payable under Georgia law. The decision to grant such credit for direct payments is a discretionary decision on the part of the ALJ. See Ga.Code Ann. § 114-415 (1981 Supp.); General Motors Corp. v. Dover, 239 Ga. 611, 238 S.E.2d 403 (1977); Sprayberry v. Commercial Union Insurance Co., 140 Ga.App. 758, 232 S.E.2d 211 (1976). Acting within this discretion, the ALJ therefore allowed appellees to apply payments calculated under Tennessee Act towards satisfaction of their liability under the Georgia statute. In so doing, the earlier direct payments were deemed part of the Georgia award. See Ga.Code Ann. § 114-415 (1981 Supp.). By entering an award consistent with Georgia law, giving credit under Georgia law for appellees direct payments, and requiring supplemental payments so that the total award would equal the amount payable under Georgia law, the ALJ effectively rendered all payments made by appellees payments under the Georgia Compensation Act. The essence of appellees’ argument in its intervention plea, however, assumes appellees are entitled to double credit for these payments. Appellees want their earlier payments applied against their Georgia liability and at the same time want the same payments credited under the Tennessee Act. Had appellees not received credit for their earlier payments or had appellees received less than dollar for dollar credit, their claim that payments were made under the Tennessee Act would be more persuasive. As it stands, however, this is a Georgia Worker’s Compensation case and all payments thus made have been under the Georgia Worker’s Compensation Act. The district court’s summary judgment recognizing that Tennessee subrogation rights may be claimed by appellees therefore is REVERSED. . The record indicated that payments of benefits on the Howard claim actually was initiated upon demand of Donald Detrick, the Tennessee attorney for Lisa and Michelle Howard. Record, vol. 2, at 213-14. The record, however, does not indicate that Detrick demanded payment consistent with Tennessee law. . Georgia repealed its subrogation statute (Ga. Code Ann. § 11AA03) in 1972. See generally Intex Products, Inc. v. Roper Corp., 160 Ga.App. 579, 580, 287 S.E.2d 610, 611 (1981). . Rule 24(c) provides in part: “A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.” Fed.R.Civ.P. 24(c). . Rule 7(a) limits the number of allowable pleadings: There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer. Fed.R.Civ.P. 7(a). Neither the Rule nor its accompanying notes indicate whether a responsive pleading is required to an intervenor’s complaint. . Appellees are unable to point to any case law suggesting that subrogation rights vest similarly under the Tennessee Act. . At one time, the decision to give credit was not even discretionary. A compensation board simply was not authorized to give credit. Such payments were considered gratuities in the absence of an approved agreement or award. Reliance Ins. Co. v. Richardson, 137 Ga.App. 678, 224 S.E.2d 812 (1976); see Mason v. City of Atlanta, 124 Ga.App. 849, 186 S.E.2d 285 (1971). Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_issuearea	K	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. TENNESSEE v. ARKANSAS No. 77, Orig. Decree entered December 14, 1981 DECREE IT IS ORDERED, ADJUDGED AND DECREED THAT: 1. The boundary line between the States of Tennessee and Arkansas in the area in controversy is fixed as geodetically described in Exhibit A, appended hereto, and as shown on Appendix E to the Special Master’s Report filed with this Court on April 13, 1981. Said Exhibit E is incorporated by reference herein. 2. The costs of this proceeding shall be divided equally between the parties. EXHIBIT “A” TENNESSEE-ARKANSAS STATE BOUNDARY IN THE ELMOT BAR-ISLAND 30 SECTOR OF THE MISSISSIPPI RIVER The following is a description, by geodetic position (North American Datum) of the locus of the Tennessee-Arkansas State Boundary that became fixed in the abandoned Fletcher Bend Channel that bounds Elmot Bar-Island 30 on the North and West. This boundary, lying between North Latitude 35° 40' 30.8" and North 35° 45' 34.6" and West Longitude 89° 52' 35" and West Longitude 89° 57' 31.5", begins at the head of Elmot Bar-Island 30 Chute Channel and thence runs Northwestward, Southwestward, Southward and Southeastward, along fixed (dead) thalweg and last steamboat navigation course in the abandoned Fletcher Bend Channel to the foot of Elmot Bar-Island 30 Chute Channel. The Locus of the said Tennessee-Arkansas State Boundary is depicted on the 1973-1975 Mississippi River Hydrographic Survey and is described as beginning at the head of the Elmot Bar-Island 30 Chute Channel at Point P-1 at North Latitude 35° 44' 30.8" and West Longitude 89° 52' 35"; Thence North to Point P-2, Lat. 35° 44' 16.8" and Long. 89° 52' 35"; Thence Northward to Point P-3, Lat. 35° 44' 28.7" and Long. 89° 52' 38"; Thence Northwestward to Point-4,, Lat. 35° 44' 42" and Long. 89° 53'; Thence Northwestward to Point-5, Lat. 35° 45' and Long. 89° 53' 22"; Thence Northwestward to Point-6, Lat. 35° 45' 10" and Long. 89° 53' 35"; Thence Northwestward to Point-7, Lat. 35° 45' 17.8" and Long. 89° 53' 47"; Thence Northwestward to Point-8, Lat. 35° 45' 25.5" and Long. 89° 54'; Thence Northwestward to Point-9, Lat. 35° 45' 34.6" and Long. 89° 54' 18"; Thence Westward to Point-10, Lat. 35° 45' 33.5" and Long. 89° 54' 30"; Thence Southwestward to Point-11, Lat. 35° 45' 29.7" and Long. 89° 54' 40"; Thence Southwestward to Point-12, Lat. 35° 45' 23.8" and Long. 89° 54' 47"; Thence Southwestward to Point-13, Lat. 35° 45' 15.6" and Long. 89° 55'; Thence Southwestward to Point-14,, Lat. 35° 45' and Long. 89° 55' 30"; Thence Southwestward to Point-15, Lat. 35° 44' 46.5" and Long. 89° 56'; Thence Southwestward to Point-16, Lat. 35° 44' 36.6" and Long. 89° 56' 20"; Thence Southwestward to Point-17, Lat. 35° 44' 27.9" and Long. 89° 56' 40"; Thence Southwestward to Point-18, Lat. 35° 44' 18.9" and Long. 89° 57'; Thence Southwestward to Point-19, Lat. 35° 44' 10.1" and Long. 89° 57' 14"; Thence Southwestward to Point-20, Lat. 35° 44' and Long. 89° 57' 23"; Thence Southwestward to Point-21, Lat. 35° 43' 39.2" and Long. 89° 57' 31"; Thence Southward to Point-22, Lat. 35° 43' 23.9" and Long. 89° 57' 31.5"; Thence Southward to Point-28, Lat. 35° 43' and Long. 89° 57' 28.5"; Thence Southward to Point-24, Lat. 35° 42' 42.6" and Long. 89° 57' 25"; Thence South to Point-25, Lat. 35° 42' 21.3" and Long. 89° 57' 25"; Thence Southward to Point-26, Lat. 35° 42' and Long. 89° 57' 23"; Thence Southward to Point-27, Lat. 35° 41' 43.6" and Long. 89° 57' 23.5"; Thence Southward to Point-28, Lat. 35° 41' 26.1" and Long. 89° 57' 21"; Thence Southeastward to Point-29, Lat. 35° 41' 11.4" and Long. 89° 57' 12"; Thence Southeastward to Point-80, Lat. 35° 41' and Long. 89° 57' 03.5"; Thence Southeastward to Point-31, Lat. 35° 40' 56.4" and Long. 89° 57'; Thence Southeastward to Point-32, Lat. 35° 40' 30.8" and Long. 89° 56' 34" at the foot of the Elmot Bar-Island 30 Chute Channel. 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_applfrom	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). HAROLD J. WARREN, INC., d/b/a Professional Realty Co., Defendant, Appellant, v. FEDERAL MUTUAL INSURANCE COMPANY, Plaintiff, Appellee. No. 6958. United States Court of Appeals First Circuit. Heard Oct. 3, 1967. Decided Dec. 8, 1967. Thomas J. Carens, Boston, Mass., with whom Roche & Leen, Boston, Mass., was on brief, for appellant. John E. Lecomte, Boston, Mass., with whom Princi & Lecomte, Boston, Mass., was on brief, for appellee. Before ALDRICH Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. This is an appeal from a declaratory judgment that a certain fire insurance policy issued by plaintiff on defendant’s, building is null and void. The basis for this judgment is the district court’s finding that in making claim against the plaintiff insurer under the policy for a fire loss in its building, defendant wil-fully misrepresented and overstated the amount of the loss, thereby attempting to defraud or gain an advantage in negotiating with the plaintiff. The principal question raised is whether the evidence adduced supports this finding. The insured building is a four story structure of Class A construction consisting of brick walls with reinforced steel and poured concrete structural ceilings and floors. It is located on Massachusetts Avenue in Boston and contains stores and offices. Among other things, the policy provided coverage for physical damage and loss of rents. It also contained the following Massachusetts statutory “Fraud and Concealment Clause”: “This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.” Mass.Gen. Laws ch. 175, § 99. Following the fire, which occurred in April 1965, the defendant corporation, through one Warren, its president, and Winnick, its treasurer, hired an experienced public adjuster named Milton to represent it in adjusting its fire loss. The company through Warren also engaged an architect named Larkin to draw plans and specifications for work to be done on the building. These plans encompassed both fire and nonfire damage repairs and alterations. Plaintiff insurance company retained one Stratton as its adjuster. Milton who had full authority to act for the defendant, submitted a claim to Stratton for some $40,680 which was later revised to $67,-698.46. Stratton testified that there was also a rental loss claim for an additional $12,000. Because of failure to agree on amount, the parties went to reference under the Massachusets statute. The referees awarded the defendant some $42,967 for damages to the building, plus $3,000 for rental loss. Before this award was returned, plaintiff notified defendant it was -denying all liability under the policy and commenced this diversity action to have the policy declared null and void. Defendant contends that the referees' award may not be collaterally attacked unless there was evidence of fraud before the district court that was not before the referees. It claims there was no such evidence here. We do not agree. From our reading of the record it seems clear that new evidence of fraud was presented at the trial but even if this were not the fact, defendant’s conclusion does not follow. Under the reference statute, the sole function of the referees is to determine the amount of loss — not the ultimate liability Of course, the issue of fraud presents a question of ultimate liability. Gechijian v. Richmond Ins. Co., 298 Mass. 487, 11 N.E.2d 478 (1937) and Gechijian v. Richmond Ins. Co., 305 Mass. 132, 25 N.E.2d 191 (1940). These cases clearly voice the strong Massachusetts policy against insurance fraud. The parties may not consider themselves free to bargain over terms with disregard of the actual amount of loss. In Gechijian 1 the court stated at 488-489, at 479 of 11 N.E.2d: “In our opinion a design on the part of the insured to gain a position of advantage in the settlement of the loss through false representations is a fraudulent design and the making of such representations knowingly for that purpose is an ‘attempt to defraud’ within the meaning of those words as used in the policy, even though the insured may not have expected or intended ultimately to obtain more than compensation for the actual loss. * * * The policy does not contemplate that after a loss the insured and insurer shall occupy the positions of vendor and vendee, free to haggle over the price of the property destroyed without regard to its true value.” An analysis of the evidence in the light of these principles shows that the district court’s finding of fraud was clearly justified. The first item in the revised claim was a contract for $44,100 with New England Partition & Fixture Company, based on plans and specifications drawn by defendant’s architect. Stratton requested a breakdown of this sum from Milton but was unable to get it prior to reference. At an early stage in the reference proceedings defendant conceded that $7,320 of the $44,100 represented non-fire damage and should not have been included. Moreover, the architect testified and Warren himself admitted that New England’s bid was for both fire and nonfire work. In any event, because of Warren’s testimony that the plans had been drawn at his direction and that he had brought the architect through the building pointing out certain things to him, there can be no doubt of his awareness that the specifications were for both fire and nonfire damage. Another pertinent item in the revised claim is $8,750 for third floor ventilating and air-conditioning. There was evidence from which the district court could reasonably conclude that this amount represented the cost of replacing all the air-conditioning on the third floor and that the repairs for fire damage actually amounted to little more than $3,000. Indeed, Milton had previously received a fire damage estimate of approximately $3,000, an estimate that was supported by an expert produced by plaintiff. In fact the company that submitted the $8,750 bid indicated that only one of the air-conditioning units appeared to be damaged and that it had bid on replacing all the air-conditioning on the third floor, not merely the fire damage. Defendant also claimed a fee of $3,678 for the architect who had drawn the plans but there is a question whether any new plans were needed in order to repair the fire damage. As pointed out in the district court’s opinion, a 1960 plan showing the building as it existed before the fire was available. In addition, no explanation was given as to why any plans were needed for the fourth floor since the evidence is clear there was no significant fire damage on that floor. Still another indication of fraud is the claim for rental loss. Despite the original claim for $12,000, a breakdown of which Stratton was unable to get, Winnick testified at the' trial that the actual rent loss was $6,025 and that all but $750 of this amount had been paid subject to refund. We are concerned here, of course, not merely with the question of whether excessive figures were submitted but also whether this was done wilfully. “Intent to defraud is not to be presumed and the trier of fact should make all reasonable allowance for lack of knowledge or sound judgment or for honest mistake on the part of the insured as well as for the tendency to believe that which is to one’s own interest * * Gechijian, supra, 298 Mass. at 489, 11 N.E.2d 479. Milton, Winnick and Warren, however, were well apprised of the damage done to the building, the repairs required and the time it would take to make them. It is only reasonable, for example, that the district court would find that Winnick, the treasurer and also the building manager, was well aware of the amount of rental loss and that Warren and Milton, who inspected the building after the fire, would be aware that the amount of fire damage on the fourth floor was negligible. It should be noted that defendant’s excessive claim of fourth floor damage is not explained by its admission that $7,320 had been improperly included. Quite apart from the question of whether fraud may have already been committed at that time, the subsequent breakdown of New England’s $44,100 bid reveals that $17,200 was allocated to the fourth floor. Nor can defendant derive any comfort from the fact that these misrepresentations were made by Milton. It is well settled in Massachusetts that an agent’s attempt to defraud is attributable to his principal, if the agent is acting within the scope of his authority. As stated in Bockser v. Dorchester Mut. Fire Ins. Co., 327 Mass. 473, 478-479 99 N.E.2d 640, 642, 24 A.L.R.2d 1215 (1951): “Any other result would tend to circumvent the public policy which calls for the enforcement of the clause in the Massachusetts standard policy now before us. * * * All that would be necessary is a complete delegation by the insured of the responsibility for the adjustment of the loss to a third party whose acts might be disavowed * * There is no doubt that Milton was acting within the scope of his authority all through the negotiations and proceedings here. Finally, since it is clear that the findings of the district court on the question of fraud in no way interfered with the proper function of the referees, Rule 52(a) Fed.R.Civ.P. applies. From our examination of the record certainly the findings of the district court upon which the judgment is based cannot be said to be “clearly erroneous.” Affirmed. . Mass.Gen.Laws ch. 175, § 99 et seq. . “A company which in compliance with section one hundred or one hundred and one D joins in reference proceedings shall not thereby be held to have waived any legal defence to the claim in respect to which the reference proceedings are held and such proceedings shall fix only the amount of the loss sustained by the insured * * Mass.Gen.Laws ch. 175, § 101 E. . The record of the proceedings before the referees was introduced in evidence without objection. 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_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. SHELL OIL COMPANY, Plaintiff-Appellee, v. FOSTER-WHEELER CORPORATION, Defendant-Appellant. No. 14104. United States Court of Appeals Seventh Circuit. Aug. 1, 1963. Paul Wagner, John M. Ferguson, Belle-ville, 111., Wagner, Conner, Ferguson, Bertrand & Baker, East St. Louis, 111., of counsel, for appellant. William C. Dunham, John W. Leskera, Howard F. Boman, East St. Louis, 111., Oehmke, Dunham, Boman & Leskera, East St. Louis, 111., of counsel, for ap-pellee. Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and GRANT, District Judge. GRANT, District Judge. Appellee, Shell Oil Company, brought this action to recover from appellant, Foster-Wheeler Corporation, the amount which Shell was compelled to pay Golden Kennerly as a result of a judgment obtained by Kennerly against Shell. Each party filed a Motion for Summary Judgment. Defendant’s Motion was denied. Plaintiff’s Motion was granted and defendant, Foster-Wheeler, brought this appeal. On April 7, 1953, Golden Kennerly, an employee of Foster-Wheeler, sustained injuries when he fell from a scaffold used in the construction of a new refinery on property of the plaintiff, Shell Oil Company. Kennerly sued Shell in the Circuit Court of St. Clair County, Illinois, charging willful violation of the Illinois Scaffold Act (Secs. 60-69, Chap. 48, 111. Rev.Stat.) by knowingly permitting the erection of a scaffold which was not safe, without a guardrail, with loose boards, while the construction of the project was under the joint charge and control of Shell and Foster-Wheeler. In its Answer Shell denied that it had, or exercised, any joint control with Foster-Wheeler, or any other construction companies, and further, answered that the work in question was being undertaken and done by Foster-Wheeler. Shell, acting through its insurers, and its attorneys, tendered Foster-Wheeler the defense of said case, which was refused. Shell Oil Company had engaged Foster-Wheeler to do a portion of the construction work on a distilling unit at its Rox-ana, Illinois refinery. The written contract, admitted in evidence at the trial and made a part of this proceeding, provided, under the heading “Scope of Work” that the contractor (Foster-Wheeler) shall diligently execute and perform the following work: “The Contractor will provide mechanical design and prepare all drawings and specifications, and will furnish all labor and materials, ship, unload, deliver to site, suitably store all materials as required, construct and erect the complete 60,000 Bbl./Day Crude Distillation Unit at Purchaser’s Wood River, Illinois, Refinery, in accordance with the attached Exhibit ‘C,’ entitled ‘Description of 60,000 Bbl. Crude Distillation Unit, Wood River, Illinois Refinery, Shell Oil Co.,’ dated September 13, 1951, and the addendum thereto entitled Exhibit ‘D’.” Further provisions of the contract authorized Shell to inspect as the work progressed and for a final inspection before acceptance. The construction contract also provided that: “The contractor shall enforce the Purchaser’s instructions regarding photography, signs, advertisement, fires and smoking, and shall not trespass, nor unreasonably encumber the Purchaser’s premises outside the site of erection, unloading and storage of materials.” The Illinois Scaffold Act (Secs. 60-69, Chap. 48, Ill.Rev.Stat.) under which that State Court action was brought, provided in pertinent part, as follows: “Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structures within the provision of this act, shall comply with all the terms thereof.” (Emphasis supplied.) At the close of the evidence in the case, the Court, at Kennerly’s request, instructed the jury in the language of the above statute. The Court, however, refused to give Shell’s proffered instruction numbered 11, reading as follows: “The Court instructs the jury that before the plaintiff can recover in this case he must prove that Shell Oil Company, the defendant, had charge of the erection or construction of the refining unit in question before the terms of the Statute shall apply to said defendant.” (Emphasis supplied.) The jury returned a verdict for Kennerly for $77,000.00. Shell appealed and the Illinois Supreme Court affirmed. (Kennerly v. Shell Oil Company, 13 Ill.2d 431, 150 N.E.2d 134.) Following payment of that judgment Shell brought this action against Foster-Wheeler. It was originally filed in the Circuit Court of St. Clair County, Illinois, then removed to the United States District Court for the Eastern District of Illinois. In this action Shell contends that Foster-Wheeler was guilty of active violation of the Scaffold Act, but that any claimed acts or omissions of Shell bear, at the most, but a passive relationship to the cause of injury. The Complaint alleges that the injury to Kennerly was produced solely through negligence on the part of the defendant, Foster-Wheeler; that Foster-Wheeler was primarily negligent and that Shell should be reimbursed for the expenditures made by it to Kennerly in the original action. The pertinent portions of the several defenses set forth in Foster-Wheeler’s answer herein were summarized by the District Court as follows: “ * * * jn its third defense (Foster-Wheeler) alleges that Shell failed to comply with the Act; that Shell was the owner and that the buildings were jointly occupied and controlled by Shell and Foster-Wheeler; that Foster-Wheeler was controlled and directed by Shell; that the effect of the general verdict was to find Shell guilty of all charges made in the amended complaint; that the charges made by Shell in the instant case are the same charges made against Shell by Kennerly; and that Shell was a joint tort-feasor. “By its fourth defense it alleges that Kennerly’s amended complaint charged Shell as being the owner, jointly occupying the building with Foster-Wheeler and controlling and directing the construction thereof; that the effect of the general verdict was to find Shell guilty of all charges ; that Shell had actual knowledge that the scaffold was defective; and that the effect of the verdict was finding Shell guilty of active negligence. “The fifth defense alleges that Kennerly’s amended complaint charges Shell with willfully and knowingly failing to comply with the Act and jointly occupying and controlling the building with Foster-Wheeler; that the effect of the general verdict was to find Shell guilty of all charges; that the jury had evidence that Kennerly informed Shell that the scaffold was dangerous; and that the verdict was in effect finding Shell guilty of active negligence. “By its sixth defense the defendant says that Kennerly’s amended complaint charges that Shell failed to comply with the Act and jointly occupied and controlled the building with Foster-Wheeler and Foster-Wheeler was controlled by Shell; that the effect of the general verdict was to find Shell guilty of all charges; that the Act imposed a nondelegable duty upon the owner and grants no right of indemnity or subrogation or contribution.” All of the record was stipulated and each party filed a Motion for Summary Judgment. The District Court found for the plaintiff, 209 F.Supp. 931. From that judgment the defendant brought this appeal. We are asked to decide: (1) Whether Kennerly v. Shell Oil Company, 13 Ill. 2d 431, 150 N.E.2d 134, is res judicata of this proceeding, and (2) whether the rule against indemnity between tortfeasors applies between parties, one of whom is the active and primary wrongdoer and the other bears but a passive relationship to the cause of the injury. The District Court answered both questions in the negative and we are in full agreement with that position, so ably set forth in the reported case, 209 F.Supp. 931. That opinion of Judge Juergens is an exhaustive analysis of all the prior proceedings and a well-reasoned analysis of the applicable law. We fully approve of and concur in the determination of the case on the grounds and for the reasons so well expressed by the District Court. We adopt the opinion of the District Court as our own in the disposition of this appeal. For the reasons set out in 209 F.Supp. 931, supra, the judgment appealed from is affirmed. Affirmed. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_r_stid	01	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is a respondent. TEXAS CITY REFINING, INC., et al., Appellants, v. A. F. KLAVENESS & CO., A/S, Appellee. No. 18573. United States Court of Appeals Fifth Circuit. March 31, 1961. Rehearing Denied April 29, 1961. Robert Eikel, Houston, Tex., for appellants. Bryan F. Williams, Jr., of Royston, Rayzor & Cook, Galveston, Tex., for appellee. Before TUTTLE, Chief Judge, and RIVES and JONES, Circuit Judges. JONES, Circuit Judge. The M/V Kingsville was an oceangoing general cargo vessel under the Norwegian flag and owned by the appellee, A. F. Klaveness & Co., A/S, a Norwegian corporation. The S/T Four Lakes is an ocean-going tank ship of United States registry and was operated, at the time of the occurrences giving rise to this litigation, under a bareboat charter by the appellee, Texas City Refining, Inc., a Delaware corporation. The Kings-ville has a length of 505 feet and a breadth of 64 feet 3 inches. The Four Lakes has a length of 504 feet and a breadth of 68 feet. The two vessels were in a collision and this appeal is from a decree of the district court finding that the Four Lakes and those in charge of her navigation' were at sole fault with respect to the collision. The collision occurred in the slip of Port Tampa, Florida. The slip, sometimes called the “canal” is approximately 3600 feet long and, as found by the district court, is approximately 160 feet wide. The slip runs in a general east-west direction and the only entrance for ships is' at the westerly end. To enter the slip a vessel must proceed through a cut and make a turn of about 65 degrees. The collision occurred in the early afternoon of January 14, 1958. The weather, sea and tide were normal. Just prior to the collision the Kingsville was moored near the slip entrance at a dock adjacent to a phosphate elevator. The trial court found that she was properly and adequately moored, with a sufficient number of lines of adequate type, strength and condition to secure her position during the passage of another vessel in the slip, if the other vessel be navigated with care. The Kingsville’s mooring lines, the court found, were secured in a seamanlike manner, her port side was well alongside her moorings, and her beam extended into the slip only as far as was necessary for a ship of her breadth. The Four Lakes came to the slip bound for an oil terminal east of the dock at which the Kingsville was moored. When the Four Lakes reached the entrance to the slip she made fast a tug by a single headline. From the district court findings we quote: “As the Four Lakes drew abeam of Kingsville to pass to the starboard of the moored vessel, the Four Lakes failed to keep sufficiently clear of the Kingsville and the port side of the Four Lakes was in collision with the starboard side of the Kingsville. The collision was caused either by the Four Lakes striking the Kings-ville in the first instance, or by passing so close to her under the circumstances as to cause the Kings-ville to surge away from the dock because of the passage of the Four Lakes in such close proximity to the Kingsville. In either event the Four Lakes and those in charge of her navigation were at fault in navigating her too close to the center of the channel as she drew abreast of the Kingsville and hence too close to the Kingsville for safe passage. Because of the heavily laden condition of the Four Lakes and engine maneuvers which she made in too close a proximity to the Kingsville the casualty and resulting damage occurred.” The district court found that the Four Lakes was solely at fault for the collision and that the Kingsville was free from fault. A decree for the libellant, the appellee here, was entered and the cross-libel of the appellant was dismissed. In seeking to procure a reversal of the district court’s decree, the appellant challenges most of its material findings. The appellant contends that it was clearly established, without substantial evidence to the contrary, that the lines by which the Kingsville was moored were slack, old and inadequately placed, that as the Four Lakes passed the Kingsville surged, one or more of her inadequate lines parted and she moved away from her mooring and struck the passing Four Lakes. To this factual hypothesis the appellant would apply the rule thus announced by the Supreme Court: “The collision being caused by the Louisiana drifting from her moorings, she must be liable for the damages consequent thereon, unless she can show affirmatively that the drifting was the result of inevitable accident, or a vis major, which human skill and precaution, and a proper display of nautical skill could not have prevented.” The Louisiana, 3 Wall. 164, 70 U.S. 164, 18 L.Ed. 85. If the facts, as established by the evidence, were as the appellant insists, and the collision occurred because the Kings-ville broke loose from her moorings by reason of her lines being inadequate and improperly placed, then the doctrine of The Louisiana would be applicable. The appellee, answering the contentions of the appellant, cites as the law applicable the following: “A vessel properly moored to the pier or to the shore, like a properly anchored vessel, has the highest degree of privilege. If she is damaged by a moving vessel, the latter is prima facie at fault.” Griffin, Collision 373, § 158. If the facts, as established by the evidence, are as the district court found them to be and the Kingsville was properly moored and was, in fact, damaged by the moving Four Lakes, then the principle quoted from Griffin is applicable and the decree from which this appeal stems must be affirmed. Each of the appellant’s specifications of error challenged a finding of fact made by the district court. Our duty both begins and ends with a consideration of whether or not the findings of the trial court are clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; Ohio Barge Line, Inc. v. Oil Transport Company, Inc., 5 Cir., 1960, 280 F.2d 448. We have addressed ourselves to that task. A discussion of the evidence would make no contribution to jurisprudence. We will content ourselves by saying that the evidence clearly sustains the district court’s findings. Its judgment is 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_applfrom	E	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). George E. PENLAND, Jr., et al., Plaintiffs, Vernon Ward, Plaintiff-Appellant, v. WARREN COUNTY JAIL; Billy Delaney, in his official capacity as Sheriff of Warren County, Tennessee; and H.T. Pelham, in his official capacity as County Executive of Warren County, Tennessee, Defendants-Appellees. No. 85-5439. United States Court of Appeals, Sixth Circuit. Argued April 15, 1986. Decided August 1, 1986. David Kozlowski (argued), Legal Services of South Central Tennessee, Inc., Tullahoma, Tenn., for plaintiff-appellant. Robert W. Boyd, Jr. (argued), McMinnville, Tenn., for defendants-appellees. Before LIVELY, Chief Judge, MERRITT and JONES, Circuit Judges. MERRITT, Circuit Judge. Plaintiffs appeal the District Court’s order denying certification of their proposed class action and the magistrate’s adverse ruling on two substantive issues in their prisoner civil rights action over conditions in a small county jail on the Cumberland plateau in Tennessee. Plaintiffs George Penland and Jimmy Earls filed this action pro se while serving time at the Warren County Jail in Tennessee. Later, able counsel filed an amended complaint in their action, stating a claim under 42 U.S.C. § 1983 (1982) and addressing eight issues: prisoner idleness, health care, mail, discipline, fire safety, food, access to courts, and visitation. The plaintiffs also sought, under Fed.R.Civ.P. 23(b)(2), certification of a class composed of all present and future prisoners at the Warren County Jail (and a subclass composed of all pretrial detainees held at the jail). District Judge Taylor denied plaintiffs' motion for class certification. The parties consented, under 28 U.S.C. § 636(c)(1) (1982), to have the action heard by a magistrate. Penland and Earls were released from jail before their case was tried, but plaintiff Vernon Ward then intervened. The magistrate ruled in plaintiffs’ favor on all substantive issues except prisoners’ access to courts and their visitation conditions. Plaintiffs appealed to the District Court, under 28 U.S.C. § 636(c)(4), and Judge Hull affirmed the magistrate’s order. The defendants did not appeal the District Court’s order, and their counsel states that they are taking measures to comply with the magistrate’s opinion. Plaintiffs wished to appeal, but, because the parties had agreed that the magistrate should try the case and that appeal of right would be to the District Court under 28 U.S.C. § 636(c)(1) & (4), plaintiffs could not appeal to the Court of Appeals as of right. Rather, they moved the Sixth Circuit for leave to appeal under 28 U.S.C. § 636(c)(5). The Court heard the matter en banc, and Judge Contie writing for the Court granted plaintiffs’ motion for leave to appeal on questions of class certification, access to the courts, and prisoner visitation rights. Pen-land v. Warren County Jail, 759 F.2d 524 (6th Cir.1985) {en banc). Judge Contie’s opinion holds that the two substantive issues were “substantial and important question^] of law that ha[d] not directly been addressed by this court,” 759 F.2d at 531, but he stated no holding on any of the issues. This appeal followed. On plaintiffs’ motion to certify the proposed class action, the District Court found that all the requirements of Fed.R.Civ.P. 23(a) were met: (1) the members of the proposed class are so numerous that joinder would be impracticable, (2) questions of law or fact are common to the proposed class, (3) the proposed named representatives’ claims would be typical of the claims of class members generally, and (4) the named representatives, and their counsel, would fairly and adequately protect the interests of the class. Nevertheless, Judge Taylor denied certification on grounds that certifying a class action was “neither necessary to protect the interests of the desired class, nor is it a superior method for providing the relief asked for in this type of lawsuit.” The Judge held that any declaratory or injunctive relief ordered in a non-class-action suit would “likely inure to the benefit of other similarly situated individuals,” so there was no need for the action to go forward as a class action. (Quoting Inmates, Washington City Jail v. England, 516 F.Supp. 132 (E.D.Tenn. 1980)). Despite Judge Taylor’s denial of class certification, this suit has been treated as a class action almost from its inception. Judge Contie, speaking for our en banc Court, criticized the denial of class certification: The “superior method” criterion has been held relevant, however, only to class actions sought to be certified under F.R. C.P. 23(b)(3). Moreover, this court has specifically held that notice to class members is not required in all F.R.C.P. 23(b)(2) class actions, although notice may be given in a particular case under F.R.C.P. 23(d)(2) if any of the interests listed therein merit protection. Thus, there exists a substantial likelihood that the class certification issue was decided on a ground inconsistent with a decision of this court. Whether the district court and the magistrate actually failed to follow precedent is a question that we leave to the panel assigned to hear this case. 759 F.2d at 531 (emphasis added, citations omitted). Since all the named plaintiffs in this action have been released from jail, under normal procedure we must either dismiss the action as moot or certify it as a class action. We agree with the en banc Court’s criticism of the procedure followed below and we reverse the District Court’s refusal to certify this suit as a class action under Fed.R.Civ.P. 23(b)(2). See also Johnson v. City of Opelousa, 658 F.2d 1065, 1069-70 (5th Cir.1981). Moving to the substantive points of this appeal, plaintiffs argue that conditions in the Warren County Jail concerning prisoners’ visitation and prisoners’ access to courts or legal representation violate the first amendment rights of the prisoners and of their visitors. This jail is located in a rural Tennessee county, and we note that measures that are achievable in larger institutions may not be reasonable in the smallest of local jails. The first amendment, as construed, sets up a balancing test in these situations and requires an examination of reasonable alternatives available. See Bounds v. Smith, 430 U.S. 817, 830, 97 S.Ct. 1491, 1499, 52 L.Ed.2d 72 (1977) (held, in prisoner’s right of access to courts suit, that the first amendment is satisfied if the goal of meaningful access is achieved by any of the alternative means available); accord, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581, 100 S.Ct. 2814, 2829-30, 65 L.Ed.2d 973 (1980) (Justice Burger, in a plurality opinion, exhorts trial judge to consider reasonable alternatives to barring press from criminal trial). The record is completely lacking in evidence concerning alternative methods of access to courts and visitation. The record lacks complete information detailing present jail conditions in relation to prisoners’ access to courts, to legal representation, and to legal resource material and conditions concerning prisoners’ visitation rights and facilities. Therefore, we remand this matter to the District Court for the court to assess present jail conditions relative to plaintiffs’ claims in comparison with reasonable alternatives. . We are informed by counsel that plaintiff Ward was released from the jail while the matter was still pending, and that the District Court informed defendants that it would not entertain any motions to dismiss on mootness grounds. 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_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. BELL CAB CO., Inc., v. COPPRIDGE. No. 9265. United States Court of Appeals District of Columbia. Argued Oct. 9, 1946. Decided Dec. 9, 1946. Mr. Joseph Bulman, of Washington, D. C., with whom Messrs. Walter M. Bastian and Sidney M. Goldstein, both of Washington, D. C., were on the brief, for appellant. Mr. Rowland F. Kirks, of Washington, D. C., with whom Messrs. Frank H. Myers and Geoffrey Creyke, Jr., both of Washington, D. C., were on the brief, for appellee. Before GRONER, Chief Justice, and CLARK and WILBUR K. MILLER, Associate Justices. Myrtle Coppridge sued Bell Cab Company, Ernest Travis and Alvin Schmidt in the District Court of the United States for the District of Columbia to recover damages for injuries sustained by her when the Bell cab, operated by Travis, in which she was a passenger, was struck by an automobile driven by Schmidt. Schmidt failed to present any defense and Travis was not served with process, so the Bell Cab Company was the only active defendant. It answered, and filed a cross claim against Schmidt. The jury found against both Schmidt and the cab company and, at the court’s direction, found for Bell Cab Company against Schmidt on the cross claim in a sum equal to that awarded to Miss Cop-pridge. The taxicab company seeks a reversal of the judgment against it. The accident occurred in the intersection of Franklin and 4th Streets, N. E. The taxicab was traveling eastwardly on Franklin, which is what is known as a “through street.” Schmidt’s automobile was moving northwardly on 4th Street and was faced with a stop sign at the entrance to the intersection with Franklin. An apartment building at the southwest corner somewhat restricted the area of vision of drivers proceeding as Travis and Schmidt were moving. The cab was in the second lane from the righthand or south curb of Franklin Street. Travis approached the intersection at about 25 miles per hour; when he reached it, he reduced his speed, looked to his right and saw the Schmidt car about 75 feet away. He felt that Schmidt was at a safe distance for him to cross the intersection. He then looked to his left and, when he glanced back to the, right, the Schmidt automobile, which had disregarded the stop sign, was “right on him.” Versions of the accident given by Miss Coppridge, the cab driver and Schmidt are in substantial agreement. The appellant argues that its motion for a directed verdict should have been granted because its driver proceeded across the intersection with an abundance of caution after observation showed that Schmidt’s car was a safe distance away; that it was Schmidt’s negligence in speeding through a stop sign and that negligence alone which caused the collision. Without doubt Schmidt’s negligent operation of his car was the primary cause of the accident. It may be conceded also that Travis used ordinary care in the operation of liis car when he entered the intersection without stopping, relying on the protection of the stop sign and on his judgment of the speed of Schmidt’s car and its distance from him. But a taxicab operator, like any other common carrier, does not discharge his legal duty by exercising ordinary care for the safety of his passenger. The law holds him to the exercise of the highest degree of care. Travis reckoned that Schmidt was traveling between 40 and 45 miles per hour. Although Travis had the right of way at the intersection, nevertheless it remained for the jury to say whether he exercised the highest degree of care to avoid a collision with a car approaching from an intersecting street at an excessive rate of speed. The jury had the right to conclude, as it did, that the extraordinary care due from a taxicab driver required either that he stop, or that he be prepared to stop almost instantly, should the other car fail to observe the stop sign and so fail to yield the right of way. The cab company offered to prove that Schmidt had entered a plea of guilty in Traffic Court to the charge of failure to give right of way, but the trial court refused to admit the evidence. This is assigned as error. If it be conceded that the proffered proof was erroneously excluded, it seems plain that the error was harmless. Such evidence would have established nothing except that Schmidt was negligent in running the stop sign. This was amply proved otherwise and was not disputed. The appellant also complains of the court’s refusal to instruct the jury that if Schmidt violated traffic regulations as to the right of way between vehicles and restrictions as to speed, such violations were negligence as a matter of law, and if they were the proximate cause of Miss Coppridge’s injury she would be entitled to a verdict against Schmidt. We regard such a charge as unnecessary because, at the instance of the appellee, the court told the jury that Schmidt had entered no defense and that a verdict for Miss Coppridge against him should be returned in an amount which would compensate her for her injuries; and at the instance of Bell Cab Company the jury was instructed that, if it should determine the negligence of Schmidt to have been the sole cause of the collision, Miss Coppridge could not recover against Bell Cab Company but only against Schmidt. Furthermore, and also at the instance of Bell Cab Company, the jury was instructed that, while there were two defendants, it did not follow from that fact alone that if one were liable both were liable, and “if you should find that only one defendant is liable, then your verdict in favor of the plaintiff should be rendered against that defendant alone.” The rejected instruction would have added nothing to those which were given, and so the court was justified in declining to use it. , Finally, the appellant’s criticism of the instruction given on the authority of Francis v. Fitzpatrick, 67 App.D.C. 69, 89 F.2d 813, does not seem to us to be well founded. Affirmed. Francis v. Fitzpatrick, 67 App.D.C. 69, 89 F.2d 813; Dixon v. Great Falls & Old Dominion Railway Co., 38 App.D.C. 591. Carson v. Green Cab Co., 186 Wis. 566, 203 N.W. 394; Bland v. Hershey, 60 App.D.C. 226, 50 F.2d 991, 992, in which wo quoted approvingly the following from Fitts v. Marquis, 127 Me. 75, 140 A. 909: “No driver, and especially no driver of an automobile, has leave to approach an intersection without using reasonable, watchfulness and caution to have his vehicle under control. When approaching a highway crossing, as elsewhere on the public ways, eternal vigilance is essential to the practical matter of driving automobiles.” This is true regardless of whether the intersection is controlled by stop lights or stop signs and regardless of whetner a traffic regulation technically gives to one approaching ear the right of way over another. “The jury is instructed that the degree of care to be shown by a common carrier to its passenger is paramount to the right of the common carrier to pursue its right-of-way in respect to another ear. If you find the defendant, Bell Cab Company, in the exercise of its right-of-way, did not exercise the highest degree of care with respect to the plaintiff and this failure to so act resulted in injury to the plaintiff, then your verdict must be for the plaintiff against the defendant, Bell Cab Company.” 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_casetyp1_1-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal". LOCKHART v. UNITED STATES. Circuit Court of Appeals, Ninth Circuit. November 25, 1929. Rehearing Denied December 17, 1929. No. 5788. Ervin P. Dailey, of Seattle, Wash. (Arthur E. Simon, of Seattle, Wash., of counsel), for appellant. Anthony Savage, U. S. Atty., and Tom De Wolfe, Asst. U. S. Atty., both of Seattle, Wash. Before BUDKIN, DIETRICH, and WILBUR, Circuit Judges. RUDKIN, Circuit Judge. This is an appeal from a judgment of conviction under two counts of an information — the first charging the unlawful possession of intoxicating liquor; the second, the maintenance of a common nuisance. The undisputed facts are as follows: Pour prohibition agents searched the private dwelling of the appellant without a search warrant, and found therein, and in the basement underneath, 15 gallons of alcohol, 3 gallons of gin, 17 quarts of beer, and some whisky; the quantity not being stated. After searching the private dwelling, one of the agents went before a United States commissioner and procured a search warrant, under and by authority of whieh the agents searched a garage a few feet back of the dwelling, and found therein 140 gallons of alcohol, a part of which at least had been stored there by the appellant on the previous evening. A motion was interposed to suppress all testimony obtained upon the search, on the ground that the seareh was. in violation of the constitutional rights of the appellant. This motion was apparently supported by af-' fidavits and opposed by counter affidavits. When the case was called for trial, the court refused to pass upon the motion to suppress, stating that police court cases would not be tried two or three times, that the motion to suppress would be considered at the trial, and, if found meritorious, the appellant would receive the benefit of it. Upon the trial, testimony was offered establishing the facts as above set forth, and at the conclusion of the trial the motion to suppress was granted as to the liquor found in the dwelling house, but denied as to the liquor found in the garage. The charge to the jury is not in the record, but we must presume that the jury was properly instructed to disregard the testimony suppressed by the court. The application for the seareh warrant, the search warrant itself, and the affidavits supporting and opposing the motion to suppress, are not incorporated in the bill of exceptions, and cannot be considered. Beach v. United States (C. C. A., No. 5674) 35 F.(2d) 837, decided November 12, 1929. The other matters and rulings to which we have referred are all' embodied in the bill of exceptions, however, and are properly before us for review. That the testimony concerning the liquor found in the dwelling was highly prejudicial to the appellant on the trial of the nuisance charge does not admit of serious question. A place where intoxicating liquor is stored is not in itself a nuisance unless the liquor is kept therein for sale or barter or other commercial purposes. Street v. Lincoln Safe Deposit Co., 254 U. S. 88, 92, 41 S. Ct. 31, 65 L. Ed. 151, 10 A. L. R. 1548; United States v. Reisenweber (C. C. A.) 288 F. 520; Feinberg v. United States (C. C. A.) 2 F.(2d) 955, 958. Testimony tending to show that the liquor was stored in the garage for a brief period, with other circumstances, might be sufficient to sustain the charge of maintaining a nuisance, but admittedly the ease of the government was greatly strengthened by proof that a large quantity and variety of liquor was kept at the same time by the same party in his dwelling on the same premises. The question for decision therefore is this, May a court admit incompetent, prejudicial testimony before a jury and cure the error by withdrawing the testimony from the consideration of the jury at the close of the trial? That this may be-done as a general rule is well settled; but there is an exception to the general rule as well established as the rule itself. The exception is thus stated in Waldron v. Waldron, 156 U. S. 361, 383, 15 S. Ct. 383, 389, 39 L. Ed. 453: “There is an exception, however, to this general rule, by virtue of whieh the curative effect of the correction, in any particular instance, depends upon whether or not, considering the whole case and its particular circumstances, the error committed appears to have been of so serious a nature that it must have affected the minds of the jury despite the correction by the court.” In Maytag v. Cummins (C. C. A.) 260 F. 74, 82, the court- said: “But there is an exception to this rule. It is that, where the appellate court perceives from an examination of the record that the inadmissible evidence made such a strong impression upon the minds of the jury that its subsequent withdrawal or the instruction to disregard it probably failed to eradicate the injurious effect of it from the minds of the jury, there the defeated party did not have a fair trial of his ease, and a new trial should be granted.” See, also, Rudd v. United States (C. C. A.) 173 F. 912; Quigley v. United States (C. C. A.) 19 F.(2d) 756. This case falls within the exception and not within the general rule. As already stated, the testimony wrongly admitted was highly prejudicial in its nature, and its effect could not be entirely eradicated from the minds of the jury by a simple instruction to disregard it. It certainly cannot be said that such testimony would not unconsciously affect the verdict, however much the jury might be disposed to follow the instructions of the court. It is said, however, that this court has already decided that it is not error to refuse to pass upon a motion to suppress until the evidence is all in. Poetter v. United States (C. C. A.) 31 F.(2d) 438. While that was true in the case then under consideration, it is not a rule of universal application. If the evidence is rightly admitted, it matters little whether the question of its admissibility was determined before or during the trial, and, if the suppression of the evidence puts an end to the .case, as usually happens, the time of the ruling is equally immaterial. But, where the ease must be submitted to the jury on other competent testimony, there is always the danger that the wrongful admission of prejudicial testimony will necessitate the granting of a new trial, and such a conclusion is, in our opinion, unavoidable here. The wrongful admission of the testimony concerning the liquor found in the dwelling, however, in nowise affected the verdict on the first count, and, as to that, the judgment is affirmed. As to the second count, the judgment is reversed, and the cause is remanded for a new trial. Question: What is the specific issue in the case within the general category of "criminal"? A. federal offense B. state offense C. not determined whether state or federal offense Answer:
songer_respond1_3_2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. Howard S. HOWARD and Anne F. Howard; Ray Warner, Jr.; Roger W. Franzen; Robert W. Lindner and Carole Lindner; Paul A. Rittenhouse and Ann M. Rittenhouse; Andrew C. Bambeck and Nancy A. Bambeck; Martin J. Gould and Gloria H. Gould; Jerome L. Grosvenor and Danna B. Grosvenor, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 90-70028. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 18, 1991. Decided April 26, 1991. G. Alohawiwoole Altman, Hilo, Hawaii, for petitioners-appellants. Shirley Peterson, Tax Div., U.S. Dept, of Justice, Washington, D.C., for respondent-appellee. Before TANG and NOONAN, Jr., Circuit Judges, and SHUBB, District Judge. Honorable William B. Shubb, United States District Judge for the Eastern District of California, sitting by designation. NOONAN, Circuit Judge: Howard S. and Anne F. Howard; Ray Warner, Jr.; Roger W. Franzen; Robert W. and Carole Lindner; Paul A. and Ann M. Rittenhouse; Andrew C. and Nancy A. Bambeck; Martin J. and Gloria H. Gould; and Jerome L. and Danna B. Grosvenor jointly appeal decisions of the United States Tax Court. We affirm. FACTS The facts have been set out in detail by the Tax Court in its opinion, 56 TCM 669 (1988). We here summarize the most relevant: In 1980 and 1981 Midas International Inc. (Mil) offered an investment program called Uranium for Tax Dollars, selling an investment in the Bolivar mining claims in New Mexico. Investors were offered a mineral claims lease on two acres for $5,000 for a period of 15 years. A second document given the investor to sign authorized a representative of Mil to arrange for the sale of a five-year option to acquire all of the investor’s right, title and interest, subject to a royalty reservation, for $20,-000. The agent was authorized to apply $20,000 from the sale of the option, plus the $5,000 from the investor, to pay for mine development work on the investor’s tract. It was agreed that if such an option could not be arranged within seven days the investor’s check would be returned. The investor was instructed by the promoter that he could deduct from taxable income the $5,000 paid for the lease and also the $20,000 the investor received from the sale of the option. Promotional material emphasized this large deduction, stating for example: TO: 1980 TAXPAYER FROM: ENERGY RESOURCE GROUP SUBJECT: 500% TAX WRITE-OFF (No Loans-No Notes) 1980 has arrived and we are able to provide you with a tax shelter program in New Mexico, U.S.A. Accompanying the promotional material were these instructions: INSTRUCTIONS DETERMINE TAX DEDUCTION The minimum capital requirement is $5,000 which can result in a $25,000 tax write-off or 5 times the cash you invest. The capital requirement can be increased in increments of $5,000. The following chart correlates cash requirement to tax write-off (deductible expenses) to cubic meters to be mined under your Mineral Claim Lease Agreement. YOUR CASH DESIRED TAX WRITE-OFF (Deductible Expenses) DEVELOPMENT COST PER M3 TOTAL CUBIC METERS IN CLAIM $ 5,000 x 5 = $25,000 divided by $1.25 = 20,000 10,000 X 5 = 50,000 1.25 = 40,000 15,000 X 5 = 75,000 1.25 = 60,000 20,000 x 5 = 100,000 1.25 = 80,000 25,000 X 5 = 125,000 1.25 = 100,000 30,000 x 5 = 150,000 1.25 = 120,000 35,000 X 5 = 175,000 1.25 = 140,000 40,000 X 5 = 200,000 1.25 = 160,000 45,000 X 5 = 225,000 1.25 = 180,000 50,000 X 5 = 250,000 1.25 = 200,000 The program for 1981 had slightly different figures but in all essentials was similar to 1980. The investors (except Howard) claimed the deductions offered; at the same time they did not report as income the sums allegedly received from the sales of the options in 1980 and 1981. The taxpayers whose appeal we adjudicate all testified that they were motivated by profit. They were all persons whose education and experience were such as to qualify them to make a sophisticated judgment about their investment. PROCEEDINGS The Commissioner disallowed the deductions claimed on the basis of the program, added the proceeds of the option sales to income, and further determined that the taxpayers involved were liable for the penalty for negligence and liable for additional interest for substantial underpayments attributable to tax motivated transactions. The taxpayers sought redetermination of the deficiencies and the penalties by petitioning the Tax Court. Over 300 cases presented the same issues. Substantially all of the parties in these cases agreed to be bound by the outcome of test cases. Thirteen cases were selected as test cases and were consolidated for purposes of trial, briefing, and opinion. THE OPINION OF THE TAX COURT The Tax Court found that the centerpiece of the program was “the amount purportedly generated by the sale of the option and then supposedly used to develop the investor’s mineral claim.” The Tax Court found the option sale was “purely fictitious and designed solely to create an artificial development cost.” The Tax Court found that the taxpayers did not report any income from the purported sale -of the options and that the purported recipient of the development money never accounted to the taxpayers for any amount received. The Tax Court found that the transactions were “utterly devoid of economic substance.” The Tax Court concluded that the transactions “were entered into by petitioners solely for tax benefits.” The Tax Court held that it would not be useful to discuss separately all of the individual cases. In a holding applicable to all the taxpayers the Tax Court declared: “We find it inconceivable that any prudent individual would really believe that their agent, chosen by the promoter, could assuredly and routinely sell a uranium option to each and every mining claim lease in the Uranium for Tax Dollars program within seven days.... The commercial surrealism of these transactions should have alerted a reasonable person to the chimerical nature of the uranium mining venture in New Mexico.” Individual decisions were entered assessing the deficiencies and penalties. The Tax Court found that the option proceeds should not be treated as income in 1980 and 1981 because the option sales were fictitious and no sales ever took place. The Tax Court further determined that no deficiency existed as to the Howards because they had not taken the deduction. The Tax Court held all of the others were liable for deficiencies and for the penalty assessed under Internal Revenue Code § 6653(a)(1) and (2) for negligence; and that Ray Warner, Jr., Robert and Carole Lindner, Roger W. Franzen, Paul and Ann Rittenhouse, Andrew and Nancy Bambeck, Martin J. and Gloria H. Gould, and Jerome L. and Danna B. Grosvenor were also liable under Internal Revenue Code § 6621(c) for 50 percent of the interest due on the underpayments of taxes in a “tax motivated transaction.” The taxpayers who are parties to this appeal appealed from the decisions of the Tax Court but only as to the assessment of additions for negligence and increased interest. There is no appeal from the Tax Court’s determination of deficiencies determined on the grounds that the transactions were entered into solely for tax benefit. ANALYSIS Jurisdiction The Howards. No deficiency or penalty was assessed against the Howards. Consequently, there is nothing for them to appeal. Their appeal is dismissed. The Joint Appeal of the Seven Other Taxpayers. The seven other taxpayers, together with the Howards, filed a joint notice of appeal. Their case is essentially different from Davies v. Commissioner, 715 F.2d 435 (9th Cir.1983). There, six cases had been consolidated in the Tax Court. One taxpayer timely appealed. The other five taxpayers filed late and argued that the timely appeal saved the jurisdiction of this court. We held that jurisdiction was lacking as to the five because their appeal was not timely. In the present case all of the taxpayers appealed together within the 90 days allowed by law. 26 U.S.C. § 7483. The Penalties Assessed The appeal of the seven taxpayers focuses on the failure of the Tax Court to deal with their individual motivation. The Tax Court explicitly ruled that it would not be useful to consider individual circumstances and explicitly phrased its conclusions in terms of what a “prudent” or “reasonable” person would have done. The taxpayers contend that the motivation of each individual should have been considered, case by case. The law governing the determination of a deficiency because an investment was entered into without the primary motivation of profit has been succinctly stated in Skeen v. Commissioner, 864 F.2d 93, 94-95 (9th Cir.1989): The proper focus of the test to be applied here is the taxpayer’s subjective intent. Independent Elec. Supply [v. C.I.R.], 781 F.2d [724] at 726 [(9th Cir.1986)]. However, objective indicia may be used to establish that intent. Id.; 26 C.F.R. § 1.183-2 (1988). The burden of proving the requisite profit motive is on the taxpayer. Polakof v. Commissioner, 820 F.2d 321, 323 (9th Cir.1987) cert. denied, 484 U.S. 1025, 108 S.Ct. 748, 98 L.Ed.2d 761 (1988). The taxpayers, however, have not appealed the deficiencies determined on the ground that they did not engage in transactions with the primary purpose of profit. They, therefore, are in great difficulty in maintaining their appeal on the issues of negligence and underpayment on a tax-motivated transaction. It is more difficult to prove subjective motivation than to prove what would motivate a reasonably prudent person. It is conceivable that one of these individuals would have been motivated in a way a reasonably prudent person would not. When the individuals are found to have acted for tax purposes, a fortiori a reasonably prudent person would be so found. The Tax Court has held that no reasonably prudent person would have undertaken these transactions for profit and that these individual taxpayers were not so motivated. These holdings of the Tax Court, which are not appealed as to the determination of deficiency, preclude the petitioners from appealing the assessment for negligence. As far as negligence is concerned, the standard is objective. The Commissioner’s determination of negligence is presumed to be correct. The taxpayer must show due care. Hansen v. Commissioner, 820 F.2d 1464 (9th Cir.1987). In a case such as this where the taxpayers have been found to have entered into sham transactions without a primary profit motivation, they have failed to meet their burden of showing due care. No reasonably prudent person would have acted as they did. The penalties for negligence under IRC § 6653(a)(1) and (2) are appropriate. Appellants further contend that the negligence penalty was wrongly upheld because they justifiably relied on the advice of financial advisors in entering into the disputed transaction. Good faith reliance on professional advice concerning tax laws is a defense. United States v. Boyle, 469 U.S. 241, 105 S.Ct. 687, 83 L.Ed.2d 622 (1985); Collins v. Comm., 857 F.2d 1383 (9th Cir.1988). We need not determine whether the appellants relied on their ad-visors, because the district court found that “[tjhere is no reliable evidence in the record suggesting the exact nature of the advice, if any, obtained.” A review of the testimony supports this finding. Where no reliable evidence exists in the record suggesting the nature of any advice given, a finding of negligence is not erroneous. Skeen v. Comm., 864 F.2d 93, 96 (9th Cir.1989). The taxpayers are not in a better position as to the appeal against the penalty assessed under § 6621(c). The penalty applies to a “substantial underpayment” attributable to a “tax motivated transaction.” The relevant definition of a tax motivated transaction is “any sham or fraudulent transaction.” § 6621(c)(3)(A)(v). The Tax Court has found the option sale to be sham. The taxpayers have not appealed this finding. Now they are bound by it. AFFIRMED. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
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. WHITEHILL v. ELKINS, PRESIDENT, UNIVERSITY OF MARYLAND, et al. No. 25. Argued October 16, 1967. Decided November 6, 1967. Sanford Jay Rosen argued the cause for appellant. With him on the brief were Elsbeth Levy Bothe and Joseph S. Kaufman. Loring E. Hawes, Assistant Attorney General of Maryland, argued the cause for appellees. With him on the brief was Francis B. Burch, Attorney General. Bernard Wolfman and Hermann I. Orentlicher filed a brief for the American Association of University Professors, as amicus curiae, in support of appellant. Edward C. Mackie filed a brief for the Baltimore Metropolitan Chapter of Americans for Constitutional Action, as amicus curiae, urging affirmance. Mr. Justice Douglas delivered the opinion of the Court. This suit for declaratory relief that a Maryland teacher’s oath required of appellant was unconstitutional was heard by a three-judge court and dismissed. 258 P. Supp. 589. We noted probable jurisdiction. 386 U. S. 906. Appellant, who was offered a teaching position with the University of Maryland, refused to take the following oath: “I,-, do hereby (Print Name— including middle initial) certify that I am not engaged in one way or another in the attempt to overthrow the Government of the United States, or the State of Maryland, or any political subdivision of either of them, by force or violence. “I further certify that I understand the afore-going statement is made subject to the penalties of perjury prescribed in Article 27, Section 439 of the Annotated Code of Maryland (1957 edition).” The question is whether the oath is to be read in isolation or in connection with the Ober Act (Art. 85A, Md. Ann. Code, 1957) which by §§ 1 and 13 defines a “subversive” as “. . . any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the State of Maryland, or any political subdivision of either of them, by revolution, force, or violence; or who is a member of a subversive organization or a foreign subversive organization, as more fully defined in this article.” (Italics supplied.) Section 1 defines the latter terms: “subversive organization” meaning a group that would, inter alia', “alter” the form of government “by revolution, force, or violence”; “foreign subversive organization” is such a group directed, dominated, or controlled by a foreign government which engages in such activities. The oath was prepared by the Attorney General and approved by the Board of Regents that has exclusive management of the university. It is conceded that the Board had authority to provide an oath, as § 11 of the Act directs every agency of the State which appoints, employs, or supervises officials or employees to establish procedures designed to ascertain before a person is appointed or employed that he or she “is not a subversive person.” And that term is, as noted, defined by §§ 1 and 13. Our conclusion is that, since the authority to prescribe oaths is provided by § 11 of the Act and since it is in turn tied to §§ 1 and 13, we must consider the oath with reference to § § 1 and 13, not in isolation. Nor can we assume that the Board of Regents meant to encompass less than the Ober Act, as construed, sought to cover. If the Federal Constitution is our guide, a person who might wish to “alter” our form of government may not be cast into the outer darkness. For the Constitution prescribes the method of “alteration” by the amending process in Article V; and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered. Moreover, the First Amendment, which protects a controversial as well as a conventional dialogue (Terminiello v. Chicago, 337 U. S. 1), is as applicable to the States as it is to the Federal Government; and it extends to petitions for redress of grievances (Edwards v. South Carolina, 372 U. S. 229, 235) as well as to advocacy and debate. So if §§ 1 and 13 of the Ober Act are the frame of reference in which the challenged oath is to be adjudged, we have important questions to resolve. We are asked to treat §§ 1 and 13 as if they barred only those who seek to overthrow or destroy the Government by force or violence. Reference is made to Gerende v. Election Board, 341 U. S. 56, where, in considering the definition of “subversive” person applicable to § 15 of the Act, governing candidates for office, we accepted the representation of the Attorney General that he would advise the proper authorities in Maryland to take and adopt the narrower version of the term “subversive.” The Court of Appeals of Maryland had indicated in Shub v. Simpson, 196 Md. 177, 76 A. 2d 332, that the purpose of the Act was to reach that group, and that the words “revolution, force, or violence” in § 1 did not include a peaceful revolution but one accomplished by force or violence. Id., at 190-191, 76 A. 2d, at 337-338, In that view the “alteration” defined would be an alteration by force and violence. That construction had not yet been fashioned into an oath or certificate when Gerende reached us. That case involved an attempt by a candidate for public office in Maryland to require the election officials to dispense with an oath that incorporated the statutory language. The Court of Appeals refused the relief asked. We referred to the narrow construction of §§ 1 and 15 given in the Shub case saying: “We- read this decision to hold that to obtain a place on a Maryland ballot a candidate need only make oath that he is not a person who is engaged fin one way or another in the attempt to overthrow the government by force or violence,’ and that he is not knowingly a member of an organization engaged in such an attempt. [196] Md. at [192], 76 A. 2d at 338. At the bar of this Court the Attorney General of the State of Maryland declared that he would advise the proper authorities to accept an affidavit in these terms as satisfying in full the statutory requirement. Under these circumstances and with this understanding, the judgment of the Maryland Court of Appeals is affirmed.” 341 U. S., at 56-57. As we said in Baggett v. Bullitt, 377 U. S. 360, 368, n. 7, we did not pass upon or approve the statutory definition of a “subversive” person in the Gerende case. Rather we accepted the narrowing construction tendered by the Attorney General during oral argument so as to avoid the constitutional issue that was argued. It is, however, urged that § 18 of the Act which contains a severability clause makes it possible for the Maryland Attorney General and for us to separate the wheat from the chaff that may be in §§ 1 and 13. The District Court found merit in the point. 258 F. Supp., at 596. But our difficulty goes deeper. As we have said in like situations, the oath required must not be so vague and broad as to make men of common intelligence speculate at their peril on its meaning. Baggett v. Bullitt, supra; Elfbrandt v. Russell, 384 U. S. 11; Keyishian v. Board of Regents, 385 U. S. 589. And so we are faced with the kind of problem which we thought we had avoided in Gerende. As we have seen, §§ 1 and 13 reach (1) those who would “alter” the form of government “by revolution, force, or violence” and (2) those who are members of a subversive organization or a foreign subversive organization. The prescribed oath requires, under threat of perjury, a statement that the applicant is not engaged “in one way or another” in an attempt to overthrow the Government by force or violence. Though we assume arguendo that the Attorney General and the Board of Regents were authorized so to construe the Act as to prescribe a narrow oath (1) that excluded “alteration” of the Government by peaceful “revolution” and (2) that excluded all specific reference to membership in subversive groups, we still are beset with difficulties. Would a member of a group that was out to overthrow the Government by force or violence be engaged in that attempt “in one way or another” within the meaning of the oath, even though he was ignorant of the real aims of the group and wholly innocent of any illicit purpose? We do not know; nor could a prospective employee know, save as he risked a prosecution for perjury. We are in the Eirst Amendment field. The continuing surveillance which this type of law places on teachers is hostile to academic freedom. As we said in Sweezy v. New Hampshire, 354 U. S. 234, 250: “The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” The restraints on conscientious teachers are obvious. As we noted in the Elfbrandt case, even attendance at an international conference might be a trap for the innocent if that conference were predominantly composed of those who would overthrow the Government by force or violence. 384 U. S., at 16-17. “Juries might convict though the teacher did not subscribe to the wrongful aims of the organization.” Id., at 17. In sum, we read the oath as an integral part of the Ober Act; and we undertake to read §§ 1 and 13 of that Act in light of the gloss that the Maryland courts have placed on it. We know that the Shut case says that “[a] person who advocates the overthrow of the Government of the United States . . . through force or violence could scarcely in good faith, take the constitutional oath of office . . . .” 196 Md., at 190, 76 A. 2d, at 337. (Italics supplied.) Yet that case does little more than afford the basis for argument that membership in a subversive organization means that the member must advocate a violent overthrow. This, however, is speculation, not certainty! Another Maryland case bearing on the question is Character Committee v. Mandras, 233 Md. 285, 196 A. 2d 630. There an applicant for admission to the Maryland bar answered “No” to the question “Are you now or have you ever been a subversive person as defined by the [Ober Act]?” He had apparently at one time been a member of the Communist Party. At a hearing he testified he had joined the party because he was interested in the candidacy of Henry Wallace and in the cause of civil liberties; but he denied he had been a subversive person or that he had advocated violent overthrow of the Government. The Court of Appeals affirmed the Board of Law Examiners, finding that the applicant was not a subversive person. So it can be argued that passive membership as a matter of Maryland law does not make a person a subversive. Yet, as we read §§ 1 and 13 of the Ober Act, the alteration clause and membership clause are still befogged. The lines between permissible and impermissible conduct are quite indistinct. Precision and clarity are not present. Rather we find an overbreadth that makes possible oppressive or capricious application as regimes change. That very threat, as we said in another context (NAACP v. Button, 371 U. S. 415, 432-433), may deter the flowering of academic freedom as much as successive suits for perjury. Like the other oath cases mentioned, we have another classic example of the need for “narrowly drawn” legislation (Cantwell v. Connecticut, 310 U. S. 296, 311) in this sensitive and important First Amendment area. Reversed. There is not only the provision for perjury prescribed in § 11, but also § 14 which provides in part that “Reasonable grounds on all the evidence to believe that any person is a subversive person, as defined in this article, shall be cause for discharge” of the employee. See Anti-Fascist Committee v. McGrath, 341 U. S. 123, 175, n. 1 (concurring opinion). Art. 15, §11, of the Maryland Constitution reads: “No person who is a member of an organization that advocates the overthrow of the Government of the United States or of the State of Marjdand through force or violence shall be eligible to hold any office, be it elective or appointive, or any other position of profit or trust in the Government of or in the administration of the business of this State or of any county, municipality or other political subdivision of this State.” Shub tells us that the Ober Act was enacted pursuant to this state constitutional provision. 196 Md., at 192, 76 A. 2d, at 338. Our attention is not drawn to, nor have we found, any severability clause applicable to this constitutional provision. It is certainly dubious, then, whether the severability clause of the Ober Act can operate to “sever” the membership clause in the definition of subversive person so that it reads more narrowly than the constitutional provision upon which the Ober Act rests. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_oththres	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" 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". John E. MORGAN, Plaintiff, Appellant, v. MASSACHUSETTS GENERAL HOSPITAL, Defendant, Appellee. Nos. 89-1624, 89-1625. United States Court of Appeals, First Circuit. Heard Dec. 5, 1989. Decided April 20, 1990. Robert C. Johnson, Jr., with whom Johnson & Jenkins, was on brief for plaintiff, appellant. James H. Wexler and Jeffrey F. Beatty, with whom Kotin, Crabtree & Strong, were on brief for defendant, appellee. Before CAMPBELL, Chief Judge, and TORRUELLA, Circuit Judge, and COFFIN, Senior Circuit Judge. TORRUELLA, Circuit Judge. John E. Morgan appeals from the decision of the United States District Court for the District of Massachusetts granting Massachusetts General Hospital’s motion for summary judgment and motion to dismiss. 712 F.Supp. 242. Massachusetts General Hospital (“MGH” or “Hospital”) cross-appeals from the district court’s failure to award attorney’s fees. Morgan originally sued two of his superiors individually, as well as MGH, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981. The claims against the individual superiors were dismissed on April 8, 1986. He also brought a claim under 42 U.S.C. § 1985 alleging conspiracy to violate his civil rights as well as several state law tort claims, which were similarly dismissed on April 8, 1986. Summary judgment was granted for all remaining Title VII and § 1981 claims against the Hospital, and the district court then declined to award MGH attorney’s fees. For the reasons stated below, we affirm the decision of the district court with respect to the appeal, and remand for a statement of reasons with regard to the cross-appeal. I. FACTUAL BACKGROUND In 1972, John E. Morgan, a black male, began his employment at MGH as an elevator operator. In 1977, he became a general service aide, a position he held until his termination in December, 1984. His duties included mopping and waxing floors, and he generally worked from 6 a.m. to 2 p.m., although a schedule was posted near where he signed in for work, and he was expected to check it regularly. Throughout his employment, Morgan had a poor attendance record, and MGH claims that it could have terminated his employment for that reason, although there is no allegation that his attendance record was actually a factor in his discharge. In 1974, Morgan and several other employees became interested in forming a union, but their most active organizing effort was not until 1981-1982. By the end of 1983, most of the union activity had ended, and, in any event, Morgan did nothing for the union after 1983. Morgan has stated that he does not know of any employee who was fired for union activity. In early December, 1984, a hispanic male (hereafter referred to as “co-worker”) began working in Morgan’s department. Morgan was assigned to “show him the ropes.” Morgan alleges that by December 5, 1984, he became aware, or at least believed, that the co-worker was a homosexual, because of sexual comments that the co-worker made to him in the restroom. Sexual harassment forms the basis for Morgan’s Title VII claim. On or about December 11, 1984, Morgan and another employee, Robert Peterson, bought alcoholic beverages during their lunch break, drank the beverages, and then went inside the Hospital, where they were joined by the co-worker. While the three employees were in the lobby, Peterson asked the co-worker if he was a homosexual, and a verbal argument ensued. The co-worker reported the incident to a supervisor, Michael Picardo. Picardo investigated the complaint by talking with both Peterson and Morgan. Morgan did not, at that time, report sexual harassment to Pi-cardo, nor did he complain when no action was taken. Peterson was subsequently suspended. At a Christmas party on December 20, 1984, Morgan alleges that he was sexually harassed. He claims that the co-worker asked him to dance with him, and started to “pull on him.” Shortly thereafter, Morgan left the party. The next day, Morgan told his supervisor, Agnes Phillips, about the Christmas party incidents. He also told her that the co-worker sometimes stood behind him as he was mopping, causing him to bump into the co-worker. Phillips told Morgan that she would discuss the matter with her supervisor, Winthrop Huy-ghue. Since Huyghue was not at work that day, Phillips and another supervisor examined the posted work schedule and determined that Morgan and the co-worker were not scheduled to work together again until December 26th. Thus, they decided to defer action until that time. She explained this to Morgan. On December 24,1984, Phillips told Huyghue that Morgan had threatened to “punch out” the co-worker if the Hospital failed to take action, and that she had told Morgan that fighting was grounds for dismissal. On December 24, 1984, Morgan reported for work, erroneously believing that he had to work that day. After being told that he was not scheduled to work, he left the Hospital through the Fruit Street door, where he encountered the co-worker. According to Morgan, the co-worker was walking towards him with his hand raised to the level of Morgan’s groin. Morgan claims that he raised his hand to block the co-worker’s hand, and, in so doing, struck the co-worker. The co-worker was treated for three fractures in his face. Morgan is 6'2" and weighs about 280 pounds; the co-worker is 5'5" and weighs about 138 pounds. In contrast to Morgan’s assertions, the co-worker claims that he met Morgan in the corridor of the hospital, and that Morgan asked him to step outside. The co-worker alleges that Morgan then struck him without provocation. Huyghue met with the co-worker, and then met with the Hospital’s Employee Relations Office, which recommended that the matter be investigated further. Morgan was placed on investigatory suspension, with pay. Huyghue then met with Morgan on December 25th. Morgan was subsequently fired, because, according to Hu-yghue, there was no substantiated evidence that Morgan’s allegations were true, and even if they were, they did not justify an assault. Furthermore, Huyghue contends that Morgan should not have disregarded Hospital policy, and that there was evidence that the assault was premeditated. After being informed of his termination, Morgan submitted a grievance statement to the Grievance Committee. In his statement, Morgan alleged only suggestive mannerisms on the part of the co-worker, and made no claim that termination was based on his race, past union or other Hospital activities, and/or complaints of other sexual harassment. After a hearing, the Committee determined that the assault was clearly work-related and was unwarranted, and recommended that the termination be sustained. II. PROPRIETY OF ENTERING SUMMARY JUDGMENT It is well established that, on appeals from summary judgment, this Court will view the facts in the light most favorable to the non-movant, in this case to Morgan, and indulge in all reasonable inferences favorable to him. E.g., King v. Williams Industries, Inc., 724 F.2d 240, 241 (1st Cir.), cert. denied, 466 U.S. 980, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1984); Metropolitan Life Insurance Co. v. Ditmore, 729 F.2d 1, 4 (1st Cir.1984); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). Because, after careful review, we can discern no genuine issue as to a material fact, we find that the decision of the district court granting summary judgment was proper. Fed.R.Civ.P. 56(c). We analyze each issue as to which summary judgment was granted seriatim. A. Morgan’s Discrimination Claims In cases alleging discriminatory firing, plaintiffs initially have the burden of establishing a prima facie case of racial discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If this procedural bulwark is successfully surmounted, the gauntlet is then passed to the defendant to articulate a legitimate, nondiscriminatory reason for the plaintiff’s dismissal. Id. at 802-03, 93 S.Ct. at 1824. If defendant is successful in doing so, the plaintiff is then charged with the responsibility of proving that defendant’s stated reason is only a pretext concealing an underlying racially discriminatory motivation. Id. at 804, 93 S.Ct. at 1825. Here, we will assume, without deciding, that Morgan met his prima facie burden, noting only that “a reviewing court ‘need not linger long over the question of whether [the plaintiff] in fact established a pri-ma facie case’ if the defendant has met its burden of articulating a legitimate non-dis-eriminatory reason for its actions.” Johnson v. Align & Bacon, Inc., 731 F.2d 64, 70 (1st Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984) (quoting Sweeney v. Research Foundation of State University of New York, 711 F.2d 1179, 1184 (2d Cir.1983)) (cited in Oliver v. Digital Equipment Corp., 846 F.2d 103, 107 (1st Cir.1988)). See also United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). As discussed below, we believe that MGH has successfully articulated such a reason. Consequently, the dispositive question is simply whether plaintiff has raised an issue of fact concerning whether the non-discriminatory reason articulated by defendant is a pretext concealing an underlying racially discriminatory motivation. 1. Articulation of Non-Discriminatory Reason for Discharge Under McDonnell Douglas, MGH is not required to demonstrate that its actions were in fact motivated by a nondiscriminatory reason, but instead must show only that a legitimate reason existed. “Defendant’s burden is one of production, not persuasion. It must only articulate a valid reason.” Oliver v. Digital Equipment Corp., 846 F.2d at 108. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. This burden of production can be met “by introducing admissible evidence that ‘raises a genuine issue of fact as to whether [defendant] discriminated against the plaintiff.’ ” Oliver v. Digital Equipment Corp., 846 F.2d at 109 (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)). There can be no question that MGH articulated a legitimate reason for its discharge of Morgan. MGH submitted to the district court affidavits from each individual involved in the decision to terminate Morgan’s employment. None of the affidavits were contested, and they each stated that no consideration was ever given to Morgan’s race, union activities or allegations of sexual harassment. Moreover, the Hospital conducted an investigation, interviewed all parties, and concluded that Morgan’s assault was apparently intentional, and consequently unacceptable. This decision was reviewed and affirmed both by the Grievance Committee and by Dr. J. Robert Buchanan, General Director of MGH. Nothing submitted, even viewed in the light most favorable to Morgan’s position, supports a conclusion that consideration was ever given to Morgan’s race, union activities, or allegations of sexual harassment. MGH stated a legitimate, nondiscriminatory reason for Morgan’s discharge when it alleged that his employment was terminated solely because, in a work-related dispute, he struck and seriously injured a co-worker, thus disrupting the Hospital’s routine. We find that this detail goes beyond that required to sustain MGH’s burden of articulating a nondiscriminatory purpose. Before moving on, we pause briefly to address two peripheral issues raised by Morgan. First, he alleges that MGH could not base its decision to fire him on the assault, because it could not lawfully terminate an employee for conduct occurring off company property and outside the employment context. Thus, the argument goes, MGH failed to articulate a legitimate reason for dismissing him, and summary judgment was consequently improper. Defendant responds by contending that the dispute was work-related because it arose out of an alleged work incident, and furthermore it occurred just outside of the Hospital, and interfered with, and disrupted its business. We believe that this is enough. In each of the cases cited by defendant for the proposition that off-duty conduct does not give rise to a right to terminate employment, Ralph’s Grocery Co., 77 Lab.Arb. (BNA) 867, 870 (1981); Nugent Sand Co., 71 Lab.Arb. (BNA) 585, 586 (1978); Indian Head, Inc., 71 Lab.Arb. (BNA) 82 (1978), an explicit exception is delineated which is applicable here. Arbitrators have long held that what an employee does on his own time and off Company premises is not a proper basis for disciplinary action unless it can be shown that employee’s conduct has an adverse effect on the company’s business or reputation, the morale and well-being of other employees, or the employee’s ability to perform his regular duties. Indian Head, Inc., 71 Lab.Arb. (BNA) at 85 (emphasis added). These were exactly the concerns which the Hospital attempted to address by dismissing the appellant. As the affidavit of Huyghue stated, “Mr. Morgan’s assault had disabled [the co-worker] and disrupted the [Environmental Services Department’s staff and operations ... [T]he ESD could not function if it were considered to condone assaults upon fellow employees.” The second argument raised by appellant may be similarly rejected. Appellant contends that, under Fed.R.Civ.P. 56(e), the district court erred by relying on affidavits, such as that of Huyghue, which allegedly contained inadmissible hearsay. He makes a similar argument about a job counseling report, and the report of the Grievance Committee, on the grounds that they should have been disallowed because they had not been authenticated. It is not the case that all out of court statements are inadmissible as hearsay. The Federal Rules of Evidence make it quite clear that such statements are inadmissible only if offered for the truth of the matter therein. Fed.R.Evid. 801(c). We agree with the district court’s decision permitting the introduction of the documents, on the ground that they were admitted, not for proving the truth of their contents, but to prove what steps were taken to investigate the circumstances surrounding the assault. For example, the affidavit of Hu-yghue, which recites statements made to him during his investigation of the fight between appellant and the co-worker, was not offered to prove any particular version of the fight. Instead, the submitted affidavit was offered only to demonstrate what steps Huyghue took, and what information he received during his investigation. On the basis of the arguments made by appellee, MGH, we find that the employer articulated a legitimate, non-discriminatory reason for its action. This being the case, the burden shifts back to the appellant to prove by a preponderance of the evidence “that the proffered reason was not the true reason for the employment decision.” Texas Dept. of Community Affairs, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). In other words, the appellant must demonstrate that the reason articulated by the Hospital “was a pretext for discrimination.” Johnson v. Allyn & Bacon, Inc., 731 at 70 (citing Texas Dept. of Community Affairs, 450 U.S. at 253-54, 101 S.Ct. at 1093-94). This burden cannot be met merely by refuting or questioning the articulated reason. White v. Vathally, 732 F.2d 1037, 1042 (1st Cir.), cert. denied, 469 U.S. 933, 105 S.Ct. 331, 83 L.Ed.2d 267 (1984). It is this burden which appellant is unable to sustain, as the district court correctly concluded. 2. Pretextuality Appellant’s only attempt to show pretext lies in his argument that he was discriminated against because he was discharged, while the co-worker was not. While we agree with the district court that it is possible for a plaintiff to demonstrate pretextuality by presenting evidence that other, non-black employees who were similarly situated were not discharged while the plaintiff was, Menzel v. Western Auto Supply Co., 848 F.2d 327, 329 (1st Cir. 1988), we cannot agree with appellant that he and the co-worker were similarly situated. The evidence presented to the district court demonstrated that the Hospital had determined that Morgan, rather than the co-worker, instigated the altercation. Consequently, evidence that the co-worker was not discharged is insufficient to sustain appellant’s burden with regard to pre-textuality. Nor is it enough for appellant to present evidence suggesting that the employer wrongly concluded that appellant struck the co-worker without provocation or justification. As the district court so dexterously explained, “evidence contesting the factual underpinnings of the reasons for the [employment decision] proffered by the employer is insufficient, without more, to present a jury question.” See Dea v. Look, 810 F.2d 12, 15 (1st Cir.1987). Moreover, the appellant cannot prove pretext solely by contesting the objective veracity of appellee’s action. Menard v. First Security Services Corp., 848 F.2d 281, 287 (1st Cir.1988). Consequently, as the district court concluded, “[e]ven if Morgan were able to demonstrate that the Hospital mistakenly believed he was the aggressor and that, in discharging Morgan, the Hospital acted on matters of purely private concern, these facts would not tend to show that race was a motivating factor in Morgan’s discharge.” See also Gray v. New England Tel. & Tel. Co., 792 F.2d 251, 255 (1st Cir.1986). Morgan offered no evidence which tended to show that his discharge was based on racially discriminatory reasons rather than on his role as a protagonist in the altercation with the co-worker. Because appellant therefore fails to raise a genuine issue as to whether the Hospital’s reason for discharge was a pretext for discrimination, we conclude that the district court acted appropriately in granting summary judgment on appellant’s discriminatory discharge claim. B. Sexual Harassment Claims Appellant also appeals from the district court’s grant of summary judgment against him on his Title VII sexual harassment claims. While there is a cause of action for sexual harassment under Title VII, we agree with the district court’s conclusion that appellant failed to demonstrate that there was a genuine issue of material fact, and consequently conclude that summary judgment was appropriate. In making the determination of whether there was conduct rising to the level of actionable sexual harassment, this Court will be guided, although not bound, by the guidelines promulgated by the Equal Employment Opportunity Commission (“EEOC”), 29 C.F.R. 1604.11. General Electric Co. v. Gilbert, 429 U.S. 125, 141-42, 97 S.Ct. 401, 410-11, 50 L.Ed.2d 343 (1976), reh’g denied, 429 U.S. 1079, 97 S.Ct. 825, 50 L.Ed.2d 799 (1977); Mentor Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). See also Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). The guidelines define actionable sexual harassment as follows: (a) Harassment on the basis of sex is a violation of § 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. Clearly, the first two categories are inapplicable, because they require that the perpetrator of the alleged harassment have supervisory authority over the plaintiff. The co-worker had no such standing, and appellant never contests this conclusion. Instead, it is the third category which, appellant asserts, has application. Morgan essentially argues that both Huyghue and Phillips held positions of authority over him, and that, once they were given notice of sexual harassment by the co-worker, they had a legal duty to take immediate remedial action. He contends that such notice was given to them as early as December 11, 1984, and that by permitting the harassment to continue, the Hospital acquiesced to the harassment. Finally, appellant asserts that he need not demonstrate that he was dismissed because he complained about sexual harassment, because a Title VII violation occurs even in the absence of employer retaliation against a victim of sexual harassment. While some sexual harassment can certainly be equated with employment discrimination within the purview of Title VII, not all sexual harassment is actionable. Under the teaching of Meritor, conduct rises to the level of actionable sexual harassment only when it is: sufficiently severe or pervasive “to alter the conditions of [the victim’s] employment and create an abusive working environment.” Meritor Savings Bank v. Vinson, 477 U.S. at 67, 106 S.Ct. at 2405 (1986) (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir.1982)). We agree with the district court that the conduct complained of in this case was neither sufficiently severe nor adequately pervasive to amount to the type of conduct deemed to be actionable under Title VII. Before the Christmas party on December 20, 1984, Morgan can point to only two instances of “harassment” by the co-worker. He alleges only that the co-worker stood behind him while he mopped, causing appellant to bump into the co-worker, and that the co-worker stood next to him in' the restroom and “peeped” at appellant’s “privates.” He also asserts that the co-worker “hung around him a lot.” But, as the district court observed, Morgan himself did not perceive this conduct as being problematic. The only other event of which appellant now complains was at the Christmas party, when the co-worker asked appellant to dance. After examining this conduct, we cannot conclude that the district court was clearly wrong in determining that the conduct was not of the type that would interfere with a reasonable person’s work performance, nor would it seriously affect a reasonable person’s psychological well-being, at least to the extent required by Title VII. See Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir.1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 823 (1987). Moreover, the facts disclose far less objectionable circumstances than those for which relief has previously been afforded. E.g., Meritor Savings Bank, 477 U.S. at 60-61, 106 S.Ct. at 2402 (repeated sexual demands by supervisor led to 40-50 instances of intercourse); Priest v. Rotary, 634 F.Supp. 571 (N.D.Cal.1986) (plaintiff subjected to sexual fondling, conduct, and exposure by supervisor). After reviewing the record, we cannot conclude that the district court erred in granting summary judgment on the issue of sexual harassment. C. Retaliatory Discharge Appellant’s next argument is that the fact that he engaged in union organizing, and as part' of those efforts opposed discriminatory treatment of minorities at the Hospital, together with the fact that he complained about sexual harassment, constitutes a prima facie case under section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Section 704 provides, in pertinent part: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter. 42 U.S.C. § 2000e-3(a). Appellant’s argument that union activities can be the subject of a section 704 action falls far short of one to which we are inclined to devote much time. He essentially claims that he was not promoted for thirteen years because of his union activities within the Hospital. We think it safe to say that, for a remedy to be provided under section 704, there must be employer opposition to some protected expression. Despite a diligent search, this Court has been unable to locate any case holding that union activities can be the basis for a section 704 finding, and we decline to be the first court to so hold. Within the vast body of law governing labor relationships, there are many statutes protecting union activities. Those statutes, and the eases interpreting them, hold that, as a general rule, the National Labor Relations Board (NLRB) has “exclusive jurisdiction to find, prevent, and rectify unfair labor practices.... ” New Mexico Dist. Council of Carpenters, AFL-CIO v. Mayhew Co., 664 F.2d 215 (10th Cir.1981). See also Motor Coach Employees v. Lock-ridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 reh’g denied, 404 U.S. 874, 92 S.Ct. 24, 30 L.Ed.2d 120 (1971); International Longshoremen’s Assoc., Local 1416, AFL-CIO v. Ariadne Shipping Co., 397 U.S. 195, 200, 90 S.Ct. 872, 874, 25 L.Ed.2d 218 (1970) (“The jurisdiction of the National Labor Relations Board is exclusive and preemptive as to activities that are ‘arguably subject’ to regulation under § 7 or § 8 of the [National Labor Relations] Act”); San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959); Garner v. Teamster’s Union, 346 U.S. 485, 490-491, 74 S.Ct. 161, 165-66, 98 L.Ed. 228 (1953). Although some exceptions to the exclusivity of NLRB jurisdiction have been created by Congress, these exceptions forge no inroads into the traditional function of the NLRB: identification and remedying of unfair labor practices. Compare International Longshoremen’s & Warehousemen’s Union v. Juneau Spruce Corp., 342 U.S. 237, 241-42, 72 S.Ct. 235, 238, 96 L.Ed. 275 (1952) (holding that, in enacting § 303 of the Labor Management Relations Act, 29 U.S.C. § 187(b), Congress intended to provide independent remedies: one directed at ending unfair labor practices, the other at providing for recovery of damages) and Motor Coach Employees v. Lockridge, 403 U.S. at 298, 91 S.Ct. at 1923 (actions under § 301 of the Taft-Hartley Act, 61 Stat. 156, to enforce collective bargaining agreements are judicially cognizable because the legislative history makes it clear that Congress made a conscious decision to leave the enforcement of collective agreements to ordinary legal processes). See also Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 513, 82 S.Ct. 519, 525, 7 L.Ed.2d 483 (1962). This case does not present a situation where Congress has made its intent to provide a remedy independent of those available in an NLRB proceeding clear, and where the preemption doctrine consequently has no application. See Teamster’s, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964); Smith v. Evening News Assoc., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Thus, section 8(a)(1) of the NLRA is still the exclusive remedy for claims, such as the ones made in the instant case, which hinge on an unfair labor practice having occurred. To permit appellant to use the general civil rights statutes to protest alleged unfair labor practices, would essentially render the NLRA nugatory, a result we are unwilling to countenance. See Motor Coach Employees v. Lockridge, 403 U.S. at 286, 91 S.Ct. at 1917. Therefore, we hold that the NLRA provides an adequate remedy without creating another one under the Civil Rights Act. On this ground, then, the district court acted correctly in granting summary judgment. We come to a similar conclusion about appellant’s second basis for alleging retaliatory discharge — he was terminated because he complained about sexual harassment, that that harassment was condoned by the employer, and that he opposed what he contends was discriminatory treatment of minorities at the Hospital. Clearly, if an employee has engaged in expression against employer policies, even within the context of union activities, which violate the Civil Rights Act, such as discriminatory treatment of minorities or sexual harassment, and the employee alleges discharge for that expression, section 704(a) would be implicated for the narrow expression-related claims. But section 704 provides a remedy only if the allegations made are substantiated. It is here that Morgan fails. The district court ably describes how appellant’s claim fails to hold up under scrutiny: he failed to specify any particular prohibited practices that he opposed and/or sought to change; he offered no evidence suggesting that those responsible for his discharge were aware of his alleged prohibited activities; and the lapse in time between the alleged prohibited activities and the discharge was too long to support an inference of retaliation. Finally, we note that even if Morgan could have established a prima facie case for retaliatory termination, he presented no evidence that the Hospital’s stated reason for discharging him — the assault on the co-worker — was mere pretext. See Johnson v. Allyn & Bacon, Inc., 731 F.2d at 70. III. PROPRIETY OF GRANTING MOTION TO DISMISS Although the district court’s discretion to dismiss a complaint is circumscribed by the Due Process Clause, we cannot find that the district court abused its discretion where, as here, the appellant willfully violated procedural rules and orders of the district court. He was not, therefore, entitled to have his case heard on the merits. Wyle v. R.J. Reynolds Ind., Inc., 709 F.2d 585 (9th Cir.1983). We agree with the district court that this “case reflects a persistent pattern of disregarding or disobeying the requirements of the Federal Rules of Civil Procedure, the Local Rules of the ... District Court and explicit court orders.” The fact that sanctions less drastic than dismissal existed is immaterial Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_casetyp1_7-2	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". William A. PEARSON, Appellant, v. Robert W. HEISER and Sandra Stamper, Appellees. Nos. 22399, 22399A. United States Court of Appeals Ninth Circuit. May 21, 1969. John C. McHose (argued) and David Brice Toy, of Lillick, McHose, Wheat, Adams & Charles, Los Angeles, Cal., for appellant. Winchester Cooley, III, (argued) of McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for Heiser. Newton Kalman (argued) of Caidin, Bloomgarden & Kalman, Beverly Hills, Cal., for Stamper. Before BROWNING, ELY and CARTER, Circuit Judges. PER CURIAM: The trial court had before it petitions for exoneration or limitation of liability by Pearson and Heiser, owners of motor boats, pursuant to 46 U.S.C. § 185. On conflicting evidence the court found Pearson and Heiser were each negligent and that the collision leading to this action was proximately caused by the mutual fault of the two owners. The court also found on conflicting evidence that Pearson’s fault was not a minor one and the court refused to apply the major-minor fault admiralty rule. We cannot say the district court was clearly wrong in its factual determinations; and if they are valid there are no legal questions presented. We affirm. We have been invited to view two short motion pictures, one made by a naval architect, an expert witness for Pearson, and the other made by a marine surveyor, an expert witness for Heiser. Each depicts a speed boat run made under generally similar but not identical conditions. Each expert identified his picture and testified at length as to what he claims was depicted and as to his conclusions. Each was cross examined. There was testimony of supporting experts on both sides. It is conceded that the testimony is in conflict, particularly on the question of the degree of inclination achieved by the Heiser motor boat and the effect of the inclination on the visability of Heiser’s running lights. Testimony on behalf of Pearson was that the degree of inclination received by the Heiser boat was as much as 8.5° from the horizontal, and thus screened Heiser’s running lights. Testimony on behalf of Heiser was that the maximum inclination of Heiser’s lights were not obscured. Obviously viewing the films would only add to our view of the conflict in the evidence. The judgment is affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
sc_partywinning	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. DANDRIDGE, CHAIRMAN, MARYLAND BOARD OF PUBLIC WELFARE, et al. v. WILLIAMS et al. No. 131. Argued December 9, 1969 Decided April 6, 1970 George W. Liebmann, Assistant Attorney General of Maryland, argued the cause for appellants. With him on the briefs were Francis B. Burch, Attorney General, Robert F. Sweeney, Deputy Attorney General, and /. Michael McWilliams, Assistant Attorney General. Joseph A. Matera argued the cause and filed a brief for appellees. Thomas C. Lynch, Attorney General, and Elizabeth Palmer, Deputy Attorney General, filed a brief for the State of California as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed by Thomas L. Fike for the Legal Aid Society of Alameda County, and by Carl Rachlin, Anthony B. Ching, Peter E. Sitkin, and Steven J. Antler for the Center on Social Welfare Policy and Law et al. Mr. Justice Stewart delivered the opinion of the Court. This case involves the validity of a method used by Maryland, in the administration of an aspect of its public welfare program, to reconcile the demands of its needy citizens with the finite resources available to meet those demands. Like every other State in the Union, Maryland participates in the Federal Aid to Families With Dependent Children (AFDC) program, 42 U. S. C. § 601 et seq. (1964 ed. and Supp. IV), which originated with the Social Security Act of 1935. Under this jointly financed program, a State computes the so-called “standard of need” of each eligible family unit within its borders. See generally Rosado v. Wyman, ante, p. 397. Some States provide that every family shall receive grants sufficient to meet fully the determined standard of need. Other States provide that each family unit shall receive a percentage of the determined need. Still others provide grants to most families in full accord with the ascertained standard of need, but impose an upper limit on the total amount of money any one family unit may receive. Maryland, through administrative adoption of a “maximum grant regulation,” has followed this last course. This suit was brought by several AFDC recipients to enjoin the application of the Maryland maximum grant regulation on the ground that it is in conflict with the Social Security Act of 1935 and with the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court convened pursuant to 28 U. S. C. § 2281, held that the Maryland regulation violates the Equal Protection Clause. 297 F. Supp. 450. This direct appeal followed, 28 U. S. C. § 1253, and we noted probable jurisdiction, 396 U. S. 811. The operation of the Maryland welfare system is not complex. By statute the State participates in the AFDC program. It computes the standard of need for each eligible family based on the number of children in the family and the circumstances under which the family lives. In general, the standard of need increases with each additional person in the household, but the incre-merits become proportionately smaller. The regulation here in issue imposes upon the grant that any single family may receive an. upper limit of $250 per month in certain counties and Baltimore City, and of $240 per month elsewhere in the State. The appellees all have large families, so that their standards of need as computed by the State substantially exceed the maximum grants that they actually receive under the regulation. The appellees urged in the District Court that the maximum grant limitation operates to discriminate against them merely because of the size of their families, in violation of the Equal Protection Clause of the Fourteenth Amendment. They claimed further that the regulation is incompatible with the purpose of the Social Security Act of 1935, as well as in conflict with its explicit provisions. In its original opinion the District Court held that the Maryland regulation does conflict with the federal statute, and also concluded that it violates the Fourteenth Amendment's equal protection guarantee. After reconsideration on motion, the court issued a new opinion resting its determination of the regulation’s invalidity entirely on the constitutional ground. Both the statutory and constitutional issues have been fully briefed and argued here, and the judgment of the District Court must, of course, be affirmed if the Maryland regulation is in conflict with either the federal statute or the Constitution. We consider the statutory question first, because if the appellees’ position on this question is correct, there is no occasion to reach the constitutional issues. Ashwander v. TVA, 297 U. S. 288, 346-347 (Brandeis, J., concurring); Rosenberg v. Fleuti, 374 U. S. 449. I The appellees contend that the maximum grant system is contrary to §402 (a) (10) of the Social Security Act, as amended, which requires that a state plan shall “provide . . . that all individuals wishing to make application for aid to families with dependent children shall have opportunity to do so, and that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.” The argument is that the state regulation denies benefits to the younger children in a large family. Thus, the appellees say, the regulation is in patent violation of the Act, since those younger children are just as “dependent” as their older siblings under the definition of “dependent child” fixed by federal law. See King v. Smith, 392 U. S. 309. Moreover, it is argued that the regulation, in limiting the amount of money any single household may receive, contravenes a basic purpose of the federal law by encouraging the parents of large families to “farm out” their children to relatives whose grants are not yet subject to the maximum limitation. It cannot be gainsaid that the effect of the Maryland maximum grant provision is to reduce the per capita benefits to the children in the largest families. Although the appellees argue that the younger and more recently arrived children in such families are totally deprived of aid, a more realistic view is that the lot of the entire family is diminished because of the presence of additional children without any increase in payments. Cf. King v. Smith, supra, at 335 n. 4 (Douglas, J., concurring). It is no more accurate to say that the last child's grant is wholly taken away than to say that the grant of the first child is totally rescinded. In fact, it is the family grant that is affected. Whether this per capita diminution is compatible with the statute is the question here. For the reasons that follow, we have concluded that the Maryland regulation is permissible under the federal law. In King v. Smith, supra, we stressed the States’ “undisputed power,” under these provisions of the Social Security Act, “to set the level of benefits and the standard of need.” Id., at 334. We described the AFDC enterprise as “a scheme of cooperative federalism,” id., at 316, and noted carefully that “[t]here is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.” Id., at 318-319. Congress was itself cognizant of the limitations on state resources from the very outset of the federal welfare program. The first section of the Act, 42 U. S. C. § 601 (1964 ed., Supp. IV), provides that the Act is “For the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services, as jar as practicable under the conditions in such State, to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection . . . .” (Emphasis added.) Thus the starting point of the statutory analysis must be a recognition that the federal law gives each State great latitude in dispensing its available funds. The very title of the program, the repeated references to families added in 1962, Pub. L. 87-543, § 104 (a)(3), 76 Stat. 185, and the words of the preamble quoted above, show that Congress wished to help children through the family structure. The operation of the statute itself has this effect. From its inception the Act has defined “dependent child” in part by reference to the relatives with whom the child lives. When a “dependent child” is living with relatives, then “aid” also includes payments and medical care to those relatives, including the spouse of the child’s parent. 42 U. S. C. § 606 (b) (1964 ed., Supp. IV). Thus, as the District Court noted, the amount of aid “is . . . computed by treating the relative, parent or spouse of parent, as the case may be, of the 'dependent child’ as a part of the family unit.” 297 F. Supp., at 455. Congress has been so desirous of keeping dependent children within a family that in the Social Security Amendments of 1967 it provided that aid could go to children whose need arose merely from their parents’ unemployment, under federally determined standards, although the parent was not incapacitated. 42 U. S. C. § 607 (1964 ed., Supp. IV). The States must respond to this federal statutory concern for preserving children in a family environment. Given Maryland’s finite resources, its choice is either to support some families adequately and others less adequately, or not to give sufficient support to any family. We see nothing in the federal statute that forbids a State to balance the stresses that uniform insufficiency of payments would impose on all families against the greater ability of large families — because of the inherent economies of scale — to accommodate their needs to diminished per capita payments. The strong policy of the statute in favor of preserving family units does not prevent a State from sustaining as many families as it can, and providing the largest families somewhat less than their ascertained per capita standard of need. Nor does the maximum grant system necessitate the dissolution of family bonds. For even if a parent should be inclined to increase his per capita family income by sending a child away, the federal law requires that the child, to be eligible for AFDC payments, must live with one of several enumerated relatives. The kinship tie may be attenuated but it cannot be destroyed. The appellees rely most heavily upon the statutory requirement that aid “shall be furnished with reasonable promptness to all eligible individuals.” 42 U. S. C. § 602 (a)(10) (1964 ed., Supp. IV). But since the statute leaves the level of benefits within the judgment of the State, this language cannot mean that the “aid” furnished must equal the total of each individual’s standard of need in every family group. Indeed the appellees do not deny that a scheme of proportional reductions for all families could be used that would result in no individual’s receiving aid equal to his standard of need. As we have noted, the practical effect of the Maryland regulation is that all children, even in very large families, do receive - some aid. We find nothing in 42 U. S. C. § 602 (a) (10) (1964 ed., Supp. IY) that requires more than this. So long as some aid is provided to all eligible families and all eligible children, the statute itself is not violated. This is the view that has been taken by the Secretary of Health, Education, and Welfare (HEW), who is charged with the administration of the Social Security Act and the approval of state welfare plans. The parties have stipulated that the Secretary has, on numerous occasions, approved the Maryland welfare scheme, including its provision of maximum payments to any one family, a provision that has been in force in various forms since 1947. Moreover, a majority of the States pay less than their determined standard of need, and 20 of these States impose máximums on family grants of the kind here in issue. The Secretary has not disapproved any state plan because of its maximum grant provision. On the contrary, the Secretary has explicitly recognized state maximum grant systems. Finally, Congress itself has acknowledged a full awareness of state maximum grant limitations. In the Amendments of 1967 Congress added to § 402 (a) a subsection, 23: “[The State shall] provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any máximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted.” 81 Stat. 898, 42 U. S. C. § 602 (a) (23) (1964 ed., Supp. IV). (Emphasis added.) This specific congressional recognition of the state maximum grant provisions is not, of course, an approval of any specific maximum. The structure of specific máxi-mums Congress left to the States, and the validity of any such structure must meet constitutional tests. However, the above amendment does make clear that Congress fully recognized that the Act permits maximum grant regulations. For all of these reasons, we conclude that the Maryland regulation is not prohibited by the Social Security Act. II Although a State may adopt a maximum grant system in allocating its funds available for AFDC payments without violating the Act, it may not, of course, impose a regime of invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Maryland says that its maximum grant regulation is wholly free of any invidiously discriminatory purpose or effect, and that the regulation is rationally supportable on at least four entirely valid grounds. The regulation can be clearly justified, Maryland argues, in terms of legitimate state interests in encouraging gainful employment, in maintaining an equitable balance in economic status as between welfare families and those supported by a wage-earner, in providing incentives for family planning, and in allocating available public funds in such a way as fully to meet the needs of the largest possible number of families. The District Court, while apparently recognizing the validity of at least some of these state concerns, nonetheless held that the regulation “is invalid on its face for overreaching,” 297 F. Supp., at 468 — that it violates the Equal Protection Clause “[b]ecause it cuts too broad a swath on an indiscriminate basis as applied to the entire group of AFDC eligibles to which it purports to apply . . . .” 297 F. Supp., at 469. If this were a case involving government action claimed to violate the First Amendment guarantee of free speech, a finding of “overreaching” would be significant and might be crucial. For when otherwise valid governmental regulation sweeps so broadly as to impinge upon activity protected by the First Amendment, its very overbreadth may make it unconstitutional. See, e. g., Shelton v. Tucker, 364 U. S. 479. But the concept of “overreaching” has no place in this case. For here we deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights, and claimed to violate the Fourteenth Amendment only because the regulation results in some disparity in grants of welfare payments to the largest AFDC families. For this Court to approve the invalidation of .state economic or social regulation as “overreaching” would be far too reminiscent of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws “because they may be unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical Co., 348 U. S. 483, 488. That era long ago passed into history. Ferguson v. Skrupa, 372 U. S. 726. In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78. “The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.” Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 69-70. “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U. S. 420, 426. To be sure, the cases cited, and many others enunciating this fundamental standard under the Equal Protection Clause, have in the main involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard. See Snell v. Wyman, 281 E. Supp. 853, aff’d, 393 U. S. 323. It is a standard that has consistently been applied to state legislation restricting the availability of employment opportunities. Goesaert v. Cleary, 335 U. S. 464; Kotch v. Board of River Port Pilot Comm’rs, 330 U. S. 552. See also Flemming v. Nestor, 363 U. S. 603. And it is a standard that is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy. Under this long-established meaning of the Equal Protection Clause, it is clear that the Maryland maximum grant regulation is constitutionally valid. We need not explore all the reasons that the State advances in justification of the regulation. It is enough that a solid foundation for the regulation can be found in the State’s legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of the working poor. By combining a limit on the recipient’s grant with permission to retain money earned, without reduction in the amount of the grant, Maryland provides an incentive to seek gainful employment. And by keying the maximum family AFDC grants to the minimum wage a steadily employed head of a household receives, the State maintains some semblance of an equitable balance between families on welfare and those supported by an employed breadwinner. It is true that in some AFDC families there may be no person who is employable. It is also true that with respect to AFDC families whose determined standard of need is below the regulatory maximum, and who therefore receive grants equal to the determined standard, the employment incentive is absent. But the Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61. It is enough that the State’s action be rationally based and free from invidious discrimination. The regulation before us meets that test. We do not decide today that the Maryland regulation is wise, that it best fulfills the relevant social and economic objectives that Maryland might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. The Constitution may impose certain procedural safeguards upon systems of welfare administration, Goldberg v. Kelly, ante, p. 254. But the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients. Cf. Steward Mach. Co. v. Davis, 301 U. S. 548, 584-585; Helvering v. Davis, 301 U. S. 619, 644. The judgment is reversed. [For Appendix, see post, p. 488.] APPENDIX TO OPINION OF THE COURT The following was the schedule for determining subsistence needs, exclusive of rent, at the time this action was brought. Md. Manual of Dept, of Pub. Welfare, pt. II, Rule 200, Sched. A, p. 27: STANDARD FOR DETERMINING COST OF SUBSISTENOE NEEDS Modification of standard for cost Other schedules set the estimated cost of shelter in the various counties in Maryland. See id., Sched. B — Plan A, p. 29; Sched. B— Plan B, p. 30. The present schedules, which are substantially the same, appear in the Md. Manual of Dept, of Social Services, Rule 200, pp. 33, 35. 49 Stat. 620, as amended, 42 U. S. C. §§301-1394 (1964 ed. and Supp. IV). Maryland Ann. Code, Art. 88A, § 44A et seq. (1969 Repl. Vol.). The schedule for determining subsistence needs is set forth in an Appendix to this opinion. The regulation now provides: “B. Amount — The amount of the grant is the resulting amount of need when resources are deducted from requirements as set forth in this Rule, subject to a maximum on each grant from each category: “1. $250 — for local departments under any ‘Plan A’ of Shelter Schedule “2. $240 — for local departments under any 'Plan B' of Shelter Schedule “Except that: “a. If the requirements of a child over 18 are included to enable him to complete high school or training for employment (III-C-3), the grant may exceed the maximum by the amount of such child's needs. “b. If the resource of support is paid as a refund (VI-B-6),. the grant may exceed the maximum by an amount of such refund. This makes consistent the principle that the amount from public assistance funds does not exceed the maximum. “c. The maximum may be exceeded by the amount of an emergency grant for items not included in a regular monthly grant. (VIII) “d. The maximum may be exceeded up to the amount of a grant to a person in one of the nursing homes specified in Schedule D, Section a. “3. A grant is subject to any limitation established because of insufficient funds.” Md. Manual of Dept, of Social Services, Rule 200, § X, B, p. 23, formerly Md. Manual of Dept, of Pub. Welfare, pt. II, Rule 200, § VII, 1, p. 20. In addition, ÁFDC recipients in Maryland may be eligible for certain assistance in kind, including food stamps, public housing, and medical aid. See, e. g., 42 U. S. C. § 1396 et seq. (1964 ed., Supp. IV); 7 U. S. C. §§ 1695-1697. The applicable provisions of state and federal law also permit recipients to keep part of their earnings from outside jobs. 42 U. S. C. §§ 630-644 (1964 ed., Supp. IV); Md. Manual of Dept, of Social Services, Ride 200, §VI, B (8) (c)(2). Both federal and state law require that recipients seek work and take it if it is available. 42 U. S. C. § 602 (a) (19) (F) (1964 ed., Supp. IV); Md. Manual of Dept, of Social Services, Rule 200, § III (D) (1) (d). Both opinions appear at 297 F. Supp. 450. The prevailing party may, of course, assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court. Compare Langnes v. Green, 282 U. S. 531, 538, with Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555, 567-568. As the Court said in United States v. American Ry. Exp. Co., 265 U. S. 425, 435-436: “[lit is likewise settled that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it. By the claims now in question, the American does not attack, in any respect, the decree entered below. It merely asserts additional grounds why the decree should be affirmed.” When attention has been focused on other issues, or when the court from which a case comes has expressed no views on a controlling question, it may be appropriate to remand the case rather than deal with the merits of that question in this Court. See Aetna Cas. & Sur. Co. v. Flowers, 330 U. S. 464, 468; United States v. Ballard, 322 U. S. 78, 88. That is not the situation here, however. The issue having been fully argued both here and in the District Court, consideration of the statutory claim is appropriate. Bondholders Committee v. Commissioner, 315 U. S. 189, 192 n. 2; H. Hart & H. Wechsler, The Federal Courts and the Federal System 1394 (1953). See also Jaffke v. Dunham, 352 U. S. 280. 64 Stat. 550, as amended, 76 Stat. 185, 81 Stat. 881, 42 U. S. C. § 602 (a) (10) (1964 ed., Supp. V). 42 U. S. C. §606 (a) (1964 ed., Supp. IV) provides: “The term ‘dependent child’ means a needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew', or niece, in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary) a student regularly attending a school, college, or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment.” The Act also covers children who have been placed in foster homes pursuant to judicial order or because they are state charges. 42 TJ. S. C. § 608 (1964 ed., Supp. IV). 42 U. S. C. § 606 (a) (1964 ed., Supp. IV), supra, n. 8, formerly § 406, 49 Stat. 629, as amended, § 321, 70 Stat. 860. See also S. Rep. No. 628, 74th Cong., 1st Sess., 16-17 (1935). The Maryland Dept, of Social Services, Monthly Financial and Statistical Report, Table 7 (Nov. 1969), indicates that 32,504 families receive AFDC assistance. In the Maryland Dept, of Social Services, 1970 Fiscal Year Budget, the department estimated that 2,537 families would be affected by the removal of the maximum grant limitation. It thus appears that only one-thirteenth of the AFDC families in Maryland receive less than their determined need because of the operation of the maximum grant regulation. Of course, if the same funds were allocated subject to a percentage limitation, no AFDC family would receive funds sufficient to meet its determined need. 42 U. S. C. § 606 (a) (1964 ed., Supp. IV), n. 8, supra. The State argues that in the total context of the federal statute, reference to “eligible individuals” means eligible applicants for AFDC grants, rather than all the family members whom the applicants may represent, and that the statutory provision was designed only to prevent the use of waiting lists. There is considerable support in the legislative history for this view. See H. R. Rep. No. 1300, 81st Cong., 1st Sess., 48, 148 (1949); 95 Cong. Rec. 13934 (1949) (remarks of Rep. Forand). And it is certainly true that the statute contemplates that actual payments will be made to responsible adults. See, e. g., 42 U. S. C. § 605. For the reasons given above, however, we do not find it necessary to consider this argument. See HEW Report on Money Payments to Recipients of Special Types of Public Assistance, Oct. 1967, Table 4 (NCSS Report D-4). See also Hearings on H. R. 5710 before the House Committee on Ways and Means, 90th Cong., 1st Sess., pt. 1, p. 118 (1967). HEW, State Máximums and Other Methods of Limiting Money Payments to Recipients of Special Types of Public Assistance, Oct. 1962, p. 3: “When States are unable to meet need as determined under their standards they reduce payments on a percentage or flat reduction basis .... These types of limitations may be used in the absence of, or in conjunction with, legal or administrative máximums. A maximum limits the amount of assistance that may be paid to persons whose determined need exceeds that maximum, whereas percentage or flat reductions usually have the effect of lowering payments to most or all recipients to a level below that of determined need.” See also HEW Interim Policy Statement of May 31, 1968, 33 Fed. Reg. 10230 (1968); 45 CFR §233.20 (a)(2)(h), 34 Fed. Reg. 1394 (1969). ’The provisions of 42 U. S. C. § 1396b (f) (1964 ed., Supp. IV), also added by the Amendments of 1967, 81 Stat. 898, a.re consistent with this view. That section provides that no medical assistance shall be given to any family that has a certain level of income. The section, however, makes an exception, 42 II. S. C. § 1396b (f) (1) (B) (ii) (1964 ed., Supp. IV): “If the Secretary finds that the operation of a uniform maximum limits pajonents to families of more than one size, he may adjust the amount otherwise determined under clause (i) to take account-of families of different sizes.” These provisions have particular significance in light of the Administration’s initial effort to secure a law forcing each State to pay its full standard of need. See Rosado v. Wyman, supra. This recognition of the existence of state máximums is not new with the Amendments of 1967. In reporting on amendments to the Social Security Act in 1962, 76 Stat. 185, the Senate committee referred to “States in which there is a maximum limiting the amount of assistance an individual may receive.” S. Rep. No. 1589, S7th Cong., 2d Sess., 14 (1962). Cf. Shapiro v. Thompson, 394 U. S. 618, where, by contrast, the Court found state interference with the constitutionally protected freedom of interstate travel. It is important to note that there is no contention that the Maryland regulation is infected with a racially discriminatory purpose or effect such as to make it inherently suspect. Cf. McLaughlin v. Florida, 379 U. S. 184. See Developments in the Law — Equal Protection, 82 Harv. L. Rev. 1065, 1082-1087. The present federal minimum wage is $52-$64 per 40-hour week, 29 U. S. C. §206 (1964 ed., Supp. IV). The Maryland minimum wage is $46-$52 per week, Md. Ann. Code, Art. 100, § 83 (Supp. 1969). It appears that no family members of any of the named plaintiffs in the present case are employable. Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No 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. UNITED STATES of America, Plaintiff-Appellee, v. Milton RUTHSTEIN, Defendant-Appellant. No. 17187. United States Court of Appeals Seventh Circuit. July 10, 1969. Rehearing Denied Aug. 17, 1969. William J. Nellis, Bernard B. Brody, Chicago, Ill., for appellant. Thomas A. Foran, U. S. Atty., Chicago, Ill., John Peter Lulinski, Michael B. Nash, Alan L. Adlestein, Asst. U. S. Attys., of counsel, for appellee. Before CASTLE, Chief Judge, FAIRCHILD, Circuit Judge, and ESCHBACH, District Judge. CASTLE, Chief Judge. Defendant appeals from his conviction by the district court, a jury having been waived, for violations of 18 U.S.C. §§ 371 and 1952. The first eight counts of the nine count indictment charged that defendant, in violation of 18 U.S.C. § 1952, used and caused to be used the interstate facilities of Western Union Telegraph Company on eight occasions with the intent to carry on a business enterprise involving gambling offenses in violation of the laws of Illinois, which make it unlawful to knowingly transmit information as to wagers, betting odds, or changes in such odds by telephone or similar equipment and to install or maintain equipment for gambling purposes. The ninth count charged conspiracy to violate § 1952 between April and June, 1965. Counts two and three were dismissed on motion of the Government and defendant was convicted of the remaining counts, sentenced to concurrent terms of 18 months, and fined $2000. Defendant is charged with operating a gambling enterprise in which he, or others acting in his behalf, sold the numbers of winning horses of races run at various locations across the country to customers who would pay in advance by Western Union money order. Various aliases were used by defendant who, until November 1966, received his information from Delaware Sports Service in Wilmington, Delaware, minutes after the race. Defendant’s customers would use, or attempt to use, the winning numbers to place bets with bookmakers who did not yet know the race results. Defendant’s customers would call in advance and indicate in which future race or races they were interested, and defendant, upon receiving the numbers of the winners from his source, would immediately relay it by telephone from his two pizza restaurants in Chicago, Illinois to the customers. Although one customer called defendant from an Illinois location, all money orders were sent from other states. Each count in the indictment, except the conspiracy count, concerned a specific interstate transaction involving the use of Western Union money orders. Defendant, on appeal, contends that the evidence did not support the district court’s finding of guilty in that it did not establish beyond a reasonable doubt the defendant’s use of interstate commerce facilities, his subsequent promotion of the unlawful activity, and his participation in a criminal offense. We shall discuss these issues in the order raised. I Defendant first asserts that the purpose of the payments made by his customers were not “sufficiently related to the defendant’s alleged gambling enterprise to place interstate payment within the interdiction of Section 1952,” and that there was no proof of scienter. These two alleged facts, it is argued, distinguish the instant case from United States v. Zizzo, 338 F.2d 577 (7th Cir. 1964). An examination of the record, however, reveals that the evidence, which this Court must view in the light most favorable to the Government, was sufficient to support the conclusion that the defendant knowingly used, and caused to be used, interstate facilities to carry out the gambling enterprise. The testimony of defendant’s employee (an unindicted conspirator), Howard Easter, four of defendant’s customers, and defendant’s own admissions to Federal Bureau of Investigation agents disclosed that defendant required his customers to send money orders via Western Union before he would release the requested information. Western Union employee Mace testified that defendant was a steady receiver of money orders which on their face disclosed their out-of-state origin. The relation of the payments to the gambling enterprise is manifested by defendant’s own requirement of payment in advance before the wagering information would be released. His knowledge of the use of interstate commerce to carry on the unlawful activity was established by both his receipt of the money' orders and his requirement that they be sent to him. We therefore hold that the evidence was sufficient to support the finding, as required by § 1952, that defendant knowingly used interstate commerce in the gambling enterprise. United States v. Zizzo, supra, 338 F.2d at 580, held that a defendant can validly be convicted of violating § 1952 if it is proved that he caused the interstate transaction to take place, rather than actually participated in it personally. We are of the opinion, in light of the evidence discussed above, that this holding applies to the case at bar, and that the court below properly found that defendant possessed the necessary knowledge to support conviction. II Defendant next contends that the race results enterprise could not be found to violate the state law, and therefore could not violate § 1952, for two reasons: (1) the Illinois statute cannot be interpreted to proscribe the activities with which defendant was charged since Congress, through its enactment of 18 U.S.C. § 1084, has pre-empted parallel state laws by occupying the field of transmission of wagering information; (2) defendant’s alleged activities were “beyond the range” of the state statute. 1. Defendant’s pre-emption argument is founded on the false notion that § 1084, which is inapplicable to defendant in the instant case, was intended by Congress to occupy the field to the exclusion of parallel state legislation. In fact, the opposite is true. In Telephone News System, Inc. v. Illinois Bell Telephone Co., 220 F.Supp. 621, 627 (N.D.Ill.1963), aff’d per curiam, 376 U.S. 782, 84 S.Ct. 1134, 12 L.Ed.2d 83 (1964), a three-judge district court noted that the legislative history of § 1084 revealed that “the purpose of the bill is to assist the various states * * * in the enforcement of their laws pertaining to gambling * * * by prohibiting the use of wire communications facilities which are or will be used for the transmission of bets or wagers and gambling information in interstate or foreign commerce.” H.R.Rep. No. 967, 87th Cong., 1st Sess. (1961). In Delaware Sports Service v. Diamond State Telephone Co., 241 F.Supp. 847, at 851 (D.Del.1965), aff’d per curiam 355 F.2d 929 (3rd Cir. 1966), cert. den. 385 U.S. 817, 87 S.Ct. 38, 17 L.Ed.2d 55 the court rejected an argument similar to defendant’s in the instant case, stating that “ * * * the purpose of the legislation [§ 1084] was to ‘aid’ the states. Such a purpose is inconsistent with the contention of preemption.” We agree with the above authorities that Congress has not pre-empted the states from proscribing the transmission of gambling information. The very language of § 1084(c) compels this conclusion : “Nothing contained in this section shall create immunity from criminal prosecution under any laws of any State * * ." Therefore, the Illinois statute could be validly interpreted as embracing the activities in which defendant was accused of participating. 2. Defendant contends that the race results activities were beyond the scope of the Illinois statute, Ill.Rev.Stat., ch. 38, § 28-1 (a) (10), since there was allegedly no proof of defendant’s participation in the transmission of “wagers, betting odds, or changes in betting odds,” and no proof as to the speed with which the transmissions were made. First of all, the statute covers “information as to "wagers," rather than merely the actual wagers themselves. The evidence elicited at defendant’s trial amply supports the conclusion that defendant’s activities came within those proscribed by the Illinois statute. See Telephone News System, Inc. v. Illinois Bell Telephone Co., 210 F.Supp. 471, 476-477 (N.D.Ill.1962). Moreover, the drafters of the Illinois statute indicated that § 28-1 (a) (10) was “designed to reach middlemen, agents, and other participants in the gambling racket who might not technically qualify as offenders under other subsections of this article.” Tentative Final Draft of Proposed Illinois Revised Criminal Code of 1961, Committee Comments, pp. 307-308 (1960). We reject defendant’s contention that, since the statute was designed to apply only to “rapid” transmissions of gambling information, the conviction must be reversed because the evidence allegedly failed to establish the essential time elements. The evidence, with all reasonable inferences which may be drawn therefrom, and when viewed in the light most favorable to the Government, shows that the transmission of the information was “rapid” indeed. Margaret Logue, an employee of Delaware Sports Service, testified that “within seconds after the race was over” the Sports Service would get the results and immediately give it to its customers, including defendant. Howard Easter, defendant’s employee, testified that “[j]ust a matter of seconds” transpired between the receipt of the winning number from Delaware Sports Service and the relaying of the number to the defendant’s customers. Thus, we find that there was substantial evidence to support the conclusion of rapidity. We similarly reject defendant’s contention “that the Government failed to establish that proscribed information was transmitted by the defendant to persons directly or indirectly engaged in illegal gambling operations.” The evidence showed that defendant’s customers were engaged in placing past-post wagers with bookmakers. In United States v. Bergland, 318 F.2d 159, 161 (7th Cir. 1963), cert. den. sub noxn. Cantrell v. United States, 375 U.S. 861, 84 S.Ct. 129, 11 L.Ed.2d 88, this Court noted that the Congressional Record indicated that “past-posting operations [were] one of the evils that Section 1084 [of Title 18, U.S.C.] would combat.” Thus, since past-posting is illegal under § 1084 and since defendant’s customers, to whom defendant transmitted the proscribed information, participated in this practice, all elements of § 28-1 (a) (10) of Chapter 38, Ill.Rev.Stat., were established. Ill Defendant’s last contention is merely a catch-all, incorporating the prior arguments and concluding that there was no proof of defendant’s participation in any criminal offense or conspiracy. Defendant argues that he was never identified as the person who effected any transmission of proscribed information, that the testimony of the four customers was uncorroborated, unworthy of belief, inaccurate, conelusory, and defective in never having revealed the content of any of the transactions, and that defendant was not proved to have had “knowledge of any actual or anticipated illegal use of the information transmitted.” These allegations are themselves conelusory and unsupported by the record. First, Easter’s testimony directly established that defendant effected some of the transmissions personally and directed Easter to effect the others. The testimony of the four customers corroborated Easter and was itself corroborated by ample evidence at trial, including testimony, documentary evidence, and defendant’s own admissions. Moreover, the customers’ testimony included descriptions of the content of the transmissions as race results. Defendant’s last contention — that knowledge of the illegal use of the transmissions was not proved — is equally without merit. Besides the fact that the only logical inference that could be drawn from the evidence was that defendant knew the reason his customers were willing to pay in advance for winning numbers, defendant himself stated to F.B.I. agent Briick that he assumed, although was not positive, that the relayed information was used for betting purposes. There was substantial evidence to support the findings of the district court on this point. For the foregoing reasons, the judgment of conviction is affirmed. Affirmed. . Defendant’s co-defendant, Joseph Vaz-zano, who was also convicted, did not appeal. . “§ 371. Conspiracy to commit offense or to defraud United States. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.” . § 1952. “Interstate and foreign travel or transportation in aid of racketeering enterprises (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to— (1) distribute the proceeds of any unlawful activity; or (2) commit any crime of violence to further any unlawful activity; or (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in sub-paragraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both. (b) As used in this section “unlawful activity” means (1) any business enterprise involving gambling * , in violation of the laws of the State in which they are committed or of the United States, * .” . Ill.Rev.Stat, Ch. 38, Section 28-1. “Gambling, (a) A person commits gambling when he: * * * * (10) Knowingly transmits information as to wagers, betting odds, or changes in betting odds by telephone, telegraph, radio, semaphore or similar means; or knowingly installs or maintains equipment for the transmission or receipt of such information; except that nothing in this subdivision (10) prohibits transmission or receipt of such information for use in news reporting of sporting events or contests.” . This technique is known as “past-posting.” . See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Weaver, 360 F.2d 903 (7th Cir. 1966), cert. den. 385 U.S. 825, 87 S.Ct. 57, 17 L.Ed.2d 61. . The testimony regarding these admissions was not objected to by defendant. . The applications for the money orders in question were identified by defendant’s customers as those filed by them in the states of origin. . “Section 1084. Transmission of wagering information; penalties. (a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined not more than $10,000 or imprisoned not more than two years, or both. (b) Nothing in this section shall be construed to prevent the transmission in interstate or foreign commerce of information for use in news reporting of sporting events or contests, or for the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State where betting on that sporting event or contest is legal into a State in which such betting is legal. (c) Nothing contained in this section shall create immunity from criminal prosecution under any laws of any State.” . Defendant’s reliance on Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640 (1956), is mistaken. There, the Supreme Court held that the federal sedition laws, 18 U.S.C. § 2385, occupied the field to the exclusion of parallel state legislation, since the interest of the federal government in this area was paramount to that of the states. Thus, as distinguished from the instant case, the purpose of the Congressional Act in Nelson was not to assist the states, but to supplant their role in the field. . See footnote 6, supra. . Besides the money orders, the Government produced defendant’s books and records. 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_r_state	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "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. Tom PAPACHRISTOU, d/b/a Mid-South Aviation, Appellant, v. TURBINES INC., Appellee. No. 88-2694-EA. United States Court of Appeals, Eighth Circuit. Dec. 7, 1989. The panel opinion filed and the judgment entered on September 12, 1989, are vacated and appellant’s suggestion for rehearing en banc is granted. The case is set for oral argument before the court en banc on Friday, January 19, 1990, in the U.S. Court and Custom House in St. Louis, Missouri. Argument will be limited to fifteen (15) minutes per side. Counsel may simultaneously file, within thirty (30) days of the date of this order, supplemental briefs which are not duplica-tive of the briefs originally filed. The supplemental briefs shall not exceed fifteen (15) pages in length. 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_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. Mary B. SCHENK, Administratrix of the Estate of Robert F. Schenk, Deceased, Plaintiff-Appellant, v. PACKAGING CORPORATION OF AMERICA, Defendant-Appellee. William E. LOEHR, Plaintiff-Appellant, v. PACKAGING CORPORATION OF AMERICA, Defendant-Appellee. Nos. 17387, 17388. United States Court of Appeals Sixth Circuit. May 19, 1967. William G. Reamon, Grand Rapids, Mich., Marcus, McCroskey, Libner, Reamon, Williams & Dilley, by Michael 0. Barron, Grand Rapids, Mich., on brief, for appellants. Douglas W. Hillman, Grand Rapids, Mich., Hillman, Baxter & Hammond, by .Robert N. Hammond, Grand Rapids, Mich., on brief, for appellee. Before O’SULLIVAN, Circuit Judge, and WILBUR K. MILLER and CECIL, Senior Circuit Judges. Of the United States Court of Appeals for the District of Columbia Circuit, sitting by designation. PER CURIAM. These appeals are from summary judgments granted to Packaging Corporation of America in actions brought against it and others to recover damages for the death of Robert F. Schenk and injuries to William E. Loehr, which resulted from an automobile accident in Michigan. The car in which they were riding came in contact with a tractor-truck loaded with pulpwood, or with some portion 0f the load, and the death and injuries followed. The Packaging Corporation’s motion for summary judgment was based on the fact that the pulpwood was being delivered to one of its plants by an independent contractor over whom it had no sort of control, nor had it exercised or attempted to exercise control over him. The District Court granted the motions and directed the entry of final judgments in favor of Packaging Corporation, as he expressly determined under Rule 54(b), Fed.R.Civ.P., that in these multiple party actions there was no just reason for delay. Thus the appeals are properly before us even though the claims against the other defendants have not been adjudicated. We affirm the judgments of the District Court on the opinion of District Judge Noel P. Fox in Schenk, Admr. v. Packaging Corporation of America (our number 17,387), which is reported in 267 F.Supp. 439 (1966). Affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_circuit	F	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. Jerome C. POWERS, Plaintiff-Appellee, v. J. B. MICHAEL & CO., Inc., Defendant-Appellant. No. 15294. United States Court of Appeals Sixth Circuit. April 7, 1964. Certiorari Denied June 15, 1964. See 84 S.Ct. 1886. William F. Kirsch, Jr., Memphis, Tenn. (David G. Williams, Shepherd, Heiskell, Williams, Wall & Kirsch, Memphis, Tenn., on the brief), for appellant. Thomas R. Prewitt, Memphis, Tenn. (Armstrong, McCadden, Allen, Braden & Goodman, Memphis, Tenn., of counsel), for appellee. Before PHILLIPS, Circuit Judge, MAGRUDER, Senior Circuit Judge for the First Circuit, and WEINMAN, District Judge. Sitting by designation pursuant to Section 294(d), Title 28 U.S.Code. MAGRUDER, Circuit Judge. Father Jerome C. Powers, driving his Buick car, had a collision with a truck on a Tennessee highway leading to Memphis. He was west bound and the truck was east bound. They met head-on. It was about dusk and also there was a drizzling rain at the moment of the collision. Both the plaintiff and the truck driver were unconscious after the impact and did not recall how the accident happened, and so there was no direct evidence of the cause of it. Father Powers testified that he was going at a reasonable speed and that his car was always on the right-hand side of the highway. After the accident the plaintiff’s car was somewhat over the line on the left-hand side of the road; but that was to be expected in the circumstances. Plaintiff sued, not the State of Tennessee but rather a contractor with which the State had a contract to widen a section of Highway 64, on which Father Powers was traveling. Since the accident took place on a portion of Highway 64 not included in the contract, the defendant contended that it had no responsibility to put up signs or other warnings of a dangerous condition of the highway. Another defense was that, if the defendant was guilty of any common law negligence, the plaintiff was himself guilty of contributory negligence. The issue of contributory negligence was left to the jury under instructions as to which the defendant took no exception, and therefore under Rule 51, Federal Rules of Civil Procedure, there could not be any objection on this score. In fact the defendant does not raise contributory negligence as an issue on appeal. Two of the points raised on appeal, which we must discuss hereinafter, refer to the trial judge’s alleged error in admitting evidence. The third has to do with the trial judge’s conduct at the trial, which the defendant says overstepped the line which even a federal judge may pursue. The fourth relates to whether the contractor had any duty to post a warning sign, because the accident occurred at a place on the highway excluded from the contract which the defendant had with the State of Tennessee. It may be noticed that this is not an action for breach of contract brought by the State of Tennessee against the defendant, but rather an action of tort brought by the plaintiff against the defendant for common law negligence proximately causing damages to the plaintiff. It seems that at a bridge on Highway 64 there was a narrowing of the highway from 24 feet to 18 feet. There was evidence by the witness Wilkinson for the defendant that he had warned a representative of the highway department of the State of Tennessee of the dangerous condition of this part of the road because he had observed that several automobiles had gone off the edge of the highway at that location. Mr. Wilkinson, an employee of the defendant, testified that from the presence of ruts in the soft part of the approaches to the bridge he was under the impression that there was “some danger of a car running down off of that and losing control,” and that he more than once told Mr. Graham, a division maintenance engineer of the Tennessee Highway Department, of the danger. Mr. Graham examined the locality and did not find that it was necessary to put up any more signs. If they had been installed, it would have had to be upon the part occupied by the defendant, in order to give adequate warning. It appears that the defendant and the highway department were in joint control of the premises and that the highway department did investigate whether any signs should be erected where the work was going on. The contract did not specify that the defendant should have warning signs on the portion of the highway which was included in its contract. However, as a practical construction of the contract, each party customarily warned the other of a dangerous condition which should be made known. There was evidence that Father Powers ran off the road at a spot within the excluded portion of Highway 64 near a bridge where the highway became narrower. The only question which was raised at that time was whether the defendant had any duty to do anything about the danger to automobilists because of the narrowing of the highway. The trial judge properly denied an instruction requested by the defendant that it was under no duty to do anything about a dangerous condition on an excluded portion of the highway. Upon the contrary, he charged the jury to the effect that “[0]ne who creates or maintains on a highway, or on adjacent shoulders to a highway, a condition of such character that danger of injury therefrom to persons lawfully using the highway may or should, in the exercise of ordinary care, be foreseen or apprehended is under the duty of exercising reasonable care, by means of signs or other means to prevent such injury; and the fact that a State Highway Department is bound by contract to maintain safeguards to prevent accidents and to take other precautions for the protection of the motoring public cannot relieve the person who creates or maintains such danger from liability. “In this case, gentlemen of the jury, if you find that defendant created a hazard which was the proximate cause of the accident in question and resulting injuries, the Court instructs you that the defendant was not entitled to assume that the State Highway Department would comply with any con-traetual obligations that it had with respect to the condition in question.” With reference to the alleged error by the trial judge in admitting evidence, the plaintiff introduced evidence that accidents had taken place prior to the one to him at approaches to other bridges on Highway 64. The trial judge was careful to tell the jury that this evidence was not admissible on the issue of the original negligence of the defendant, but solely for the limited purpose of establishing that the defendant had notice of the danger at that point. Furthermore, the applicable Tennessee decisions do not require exact proof of identity of conditions in order to render the evidence of prior accidents admissible on the question of notice. One should not be hypercritical upon this point. It is enough that the conditions were substantially the same when the other ears skidded off the highway. John Gerber Co. v. Smith, 150 Tenn. 255, 263 S.W. 974 (1924). The sufficiency of the showing of similarity of conditions is primarily a matter for the discretion of the trial judge. We perceive no abuse of discretion in this particular. The other alleged error in the admission of evidence by the trial judge was that the defendant put up on the premises subsequent to the accident some danger signs and smudge pots. The trial judge cautioned the jury at the time this evidence was introduced that it was not admissible as proof of original negligence by the defendant, if there was such, but was admissible only as it tended to prove that this part of the highway was under the control of the defendant. This was repeated in the general charge. It is true that the possible prejudicial effect of such evidence remains in the ease, but certainly it is a matter of discretion for the trial judge to admit this evidence for this limited purpose, and again we perceive no abuse of discretion, See Trigg v. H. K. Ferguson Co., 30 Tenn.App. 672, 209 S.W.2d 525 (1947). The appellant alleges misconduct by the trial judge which denied it the right to a trial before an impartial tribunal. See “The Trials and Tribulations of an Intermediate Appellate Court,” 44 Cornell L.Q. 3, 4 (1958). The evidence of examination by the trial judge concerns the testimony of Louie Graham, an employee of the Highway Department called by the defendant. There was the “loaded” question asked by the defendant, “Should the trial judge assume the role of a partisan advocate in his examination of the defendant's witness in such manner as to make the testimony of the witness appear to be contradictory and in such manner as to show partisanship on the part of the trial judge?” It was said by the defendant that the district court answered “Yes” to this question. Of course, the district court denied appearing as a “partisan advocate,” which obviously he should not do. The trial judge allowed a complete direct examination by counsel for the defendant, a cross-examination by counsel for the plaintiff, a redirect examination, a recross-examination, and a redirect examination, before he undertook, with evident reluctance, his questioning of the witness. The trial judge told the jury that they were the sole judges of the facts and that his questioning of the witness was not intended to show any opinion by him as to the merits of the case. It is discretionary with a federal judge how far he should question a witness for the purpose of eliciting the truth from him. We perceive no abuse of discretion in this respect. Indeed, in his charge to the jury the trial judge was very fair to the defendant and failed to disclose any hostility to it. A judgment will be entered affirming the judgment of the District Court. Question: 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_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party DAVILLA v. BRUNSWICK-BALKE COLLENDER CO. OF NEW YORK et al. No. 155. Circuit Court of Appeals, Second Circuit. Feb. 7, 1938. Julian T. Abeles, of New York City (Charles S. Rosenschein, Julian T. Abeles, and Edwin P. Kilroe, all of New, York City, of counsel), for appellant. Moses H. Hoenig, of New York City, for appellee. Before MANTON, SWAN, and AUGUSTUS N. Hand, Circuit Judges. MANTON, Circuit Judge. Appellee composed, published, and copyrighted, in 1920, a song entitled “You made me like it, Daddy (That’s why I love it so).” In 1928, appellant, a large distributor of phonographic records, infringed this copyright by making a phonographic disc on one side of which was a record of appellee’s song, although entitled “You made me like it Baby,” and on the other side a selection entitled “Gumbo.” Appellee discovered its use March 23, 1929, by having heard it broadcast. He ■ then gave notice of the copyright infringement. Letters were exchanged as to it. Appellant’s infringement, so far as this record discloses, was made without knowledge of the copyright, and the correspondence indicates a disposition by the appellant to make some adjustment. However, no settlement was reached, and in September, 1934, this suit was commenced. At the trial, the court found infringement, and the matter of damages was referred to a master, who recommended an award of $5,000. The court below, although proceeding upon a somewhat different theory, confirmed the award of $5,-000, and also granted attorney’s fees of $2,000 and a master’s fee of $400. This appeal involves the award of damages and the fees allowed for the attorney and the special master. Section 25(b) of the Copyright Law, as amended, 17 U.S.C.A. § 25(b) provides that the infringer shall be liable “to pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or in lieu of actual damages and profits such damages as to the court shall appear to be just.” Whether profits shall be awarded or statutory damages allowed is not a matter of choice with a plaintiff. In Douglas v. Cunningham, 294 U.S. 207, 209, 55 S.Ct. 365, 366, 79 L.Ed. 862, the court said: “The phraseology of the section was adopted to avoid the strictness of construction incident to a law imposing penalties, and to give the owner of a copyright some recompense for injury done him, in a case where the rules of law render difficult or impossible proof of damages or discovery of profits.” See Jewell-LaSalle Realty Co. v. Buck, 283 U.S. 202, 51 S.Ct. 407, 75 L.Ed. 978; Hendricks Co. v. Thomas Pub. Co., 2 Cir., 242 F. 37. The master directed appellant to file a statement under oath, in writing, in debit and credit form, setting forth the facts concerning the sales made and profits earned from the phonograph records containing the melody of appellee’s song. Appellant did so, and appellee filed objections thereto. The answer disclosed that there were 5,285 records sold, with both sides used, one of which was not appellee’s composition. The total sales price was stated to be $2,140.42, and the cost of production was given as $1,-199.16. Appellee’s exceptions set forth that “no royalties were paid on * * * (5,-285) records * * * making the cost of each $.2045 instead of $.2267, making an alleged profit of $1,057.53, * * * ” for both sides of the record. Appellant offered no testimony before the master' in support of the item of royalties, and therefore we must consider- the schedule of costs as amended by appellee’s objection. Since there was no further exception to the statement of costs, the issue of costs is settled for the purposes of this case by the corrected schedule. Although section 25(b) of the Copyright Law requires defendant to prove every item of cost, this does not apply to items not put in issue. Under Equity Rule 63, 28 U.S.C.A. following section 723, the issues are defined by the answer to the master’s summons and the exceptions thereto, which take the place of pleadings. See Carson v. Amer. Smelting & Ref. Co., D.C., 25 F.2d 116; Wayne Mfg. Co. v. Coffield Motor Washer Co., 8 Cir., 255 F. 558; Armstrong v. Belding Bros. & Co., D.C., 280 F. 895, 897; Cushman & Denison Mfg. Co. v. L. F. Grammes & Sons, D.C., 225 F. 883, 887; Id., D.C., 234 F. 949, 951; Beckwith v. Malleable Iron Range Co., D.C., 207 F. 848. On the pleadings before the master, as thus defined, appellant’s statement of costs was not put in issue, except for the item of royalties. Another exception to the appellant’s report is the claim that the total sales were 5,399, a difference of 114 records. As to the additional 114 records, it was explained before the master that the greater total failed to take into consideration records which had been returned after sale. This apparently satisfied appellee that only 5,-285 records appeared to have been sold as shown by the sales sheets, although there was objection to the failure to produce the books of the corporation. The master recommended an award of $5,000, part of which was based upon the sales shown by the sales sheets and part of which was statutory damages based upon his belief that probably more than 5,285 records were sold. The master found: “In view of Mr. Dirk’s positive testimony that the sales records which have been submitted, were the original sales records of the parent Delaware corporation, I cannot find sales in excess of the number reported by the accounting defendant, for the purpose of assessing profits on records actually sold.” He also stated that: “Even though more than 5285 records may have been manufactured, there is nothing to show that the sales have been reported incorrectly, for the purpose of estimating profits.” There were some labels printed, and as to these, the master said: “There is nothing in the nature of affirmative proof to show that all of the 27,180 labels manufactured by the parent Delaware corporation were applied to infringing phonograph records which were sold.” On the issues as framed, we think there was ample evidence to make an award of damages on the basis of actual profits, and therefore the master and the court below were in error in granting statutory damages. The master’s report is based on the theory that there was an inadequate explanation of appellants failure to produce certain books, that there was error in the first statement made to appellee as to the number of sales, and therefore appellant probably sold or disposed of more than 5,285 records. Be that as it may, actual profits were sufficiently established before the master so as to preclude the recovery of statutory damages. With respect to the books for establishing the sales, it appears that there was a sale by the parent corporation of its entire phonographic recording business to Warner Bros. Pictures, Inc., and a subsequent sale of the business by the latter to the American Record Company. The contract with Warner Bros, provided for delivery of the books to it, although there is evidence that Warner Bros, did not have them when called for by appellee. But there was no showing by the appellee, that he made any attempt to find the books in the possession of the last buyer, the American Record Company. However, there were produced instead, by the appellant, sales sheets which were the original sales records. ' They appeared to be genuine and to cover all sales for the period from the date of the infringement until appellant went out of the recording business. Since the amount of the sales was sufficiently proved, there was no basis for an award of statutory damages. Such an award should not be based upon the idea of punishment, but depends upon the absence of proof of actual profits and damages. Turner & Dahnken v. Crowley, 9 Cir., 252 F. 749, 754; Westermann Co. v. Dispatch Printing Co., 249 U.S. 100, 39 S.Ct. 194, 63 L.Ed. 499. The appellant argues that there should be no award for damages because the lyrics of the song are salacious and lewd and therefore the copyright should not be protected. Broder v. Zeno Mauvais Music, Co., C.C., 88 F. 74, 77; Simonton v. Gordon, D.C., 12 F.2d 116, 124; Glyn v. Western Feature Co., 1916, 1 Chan. 261. The pleadings did not present this issue, and the evidence offered to establish obscenity was directed only to the meaning of the words in the mind of the author. It was properly excluded, and the assignment of error relating to obscenity is directed only to that exclusion. Accordingly we shall not consider the point. The appellant also contends that, since the phonographic disc was a double record, only one side of which infringed, the profits should be divided. Appellant offered no proof, however, as to the cost of making up each composition, nor as to the sales advantages of one composition over the other. It was sufficient for appellee’s purpose to establish the number of sales of its particular composition. The Copyright Act required appellant to prove every element of cost. In the absence of such proof, appellant’s claim cannot be sustained. The court granted an allowance of $2,000 as counsel fees. This was excessive. Counsel fees should be commensurate with the services necessarily rendered and the success obtained. Universal Film Mfg. Co. v. Copperman, 2 Cir., 218 F. 577, 582; Haas v. Leo Feist, D.C., 234 F. 105. There was little dispute as to the sales, and only one item of cost was involved in the contest. An award of $1,000 is sufficient. The decree will be modified so as to award profits of $1,057.53 and $1,000 counsel fee. The master’s fee of $400 will stand. Decree modified. 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_appel1_3_3	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RAYMOND BUICK, INC., and Amalgamated Local Union 355, Respondents. No. 862, Docket 35425. United States Court of Appeals, Second Circuit. Argued June 9, 1971. Decided June 24, 1971. Stephen Solomon, Washington, D. C., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, William Wachter, Atty., National Labor Relations Board, on the brief), for petitioner. Richard M. Naness, Plainview, N. Y., for respondent Raymond Buick, Inc. Harold Dublirer, New York City (Dub-lirer, Haydon & Straci, New York City, on the brief), for respondent Amalgamated Local Union 355. Before FRIENDLY, Chief Judge, and HAYS and OAKES, Circuit Judges. PER CURIAM: The National Labor Relations Board petitions for enforcement of its order requiring respondents Raymond Buick, Inc. and Amalgamated Local Union 355 to cease and desist from unfair labor practices and to take certain affirmative action. The Board, in agreement with the Trial Examiner, found that the company violated Section 8(a) (2) and (1) of the Act (29 U.S.C. § 158(a) (2) and (1) (1964)) by the organizational activities of Assistant Service Manager Winter on behalf of Local 355, by its recognition of Local 355 and the execution of a contract with it when it did not represent an uncoerced majority of the employees, and by recognizing Local 355 at a time when a real question concerning representation raised by another union existed. The Board further found that the company violated Section 8(a) (2), (3) and (1) of the Act (29 U.S.C. § 158(a) (2), (3) and (1) (1964)) by including and maintaining a union security clause in the Local 355 contract and found Local 355 in violation of Section 8(b) (1) (A) and (2) (29 U.S.C. § 158(b) (1) (A) and (2) (1964)) for using company assistance to obtain both recognition and a contract and for agreeing to and enforcing the union security clause. The issues in the case are purely factual. An issue as to the supervisory status of Winter presents only the question of the extent to which the other employees considered Winter a part of management. The findings of the Board in this respect are supported by substantial evidence. In reviewing the testimony of employee Anzalone, the Board found that “a decision by the Board in this proceeding should not be based on the testimony of Michael Anzalone where it is not corroborated by other credited testimony.” 173 N.L.R.B. No. 199 (1968). Anzalone testified that the employees considered Winter a supervisor. From this, respondents argue that the holding with respect to the supervisory status of Winter cannot stand. We disagree. There was clearly sufficient credited corroborative testimony to support this finding. Several other employees testified to the same effect, and there is other evidence in the record regarding Winter’s various functions which establishes his supervisory status. The remedies imposed by the Board were all fully within its power. The Board ordered reimbursement of those employees who signed cards authorizing deduction of dues and initiation fees under supervisory influence or coercion. All employees who signed subsequent to the execution of the contract are included among those to be reimbursed. Such an order is based on the premise that employees who sign cards after a contract containing a compulsory union membership clause has been executed have been coerced into doing so. Requiring reimbursement in this situation is entirely proper. See NLRB v. Revere Metal Art Co., 280 F.2d 96, 100-101 (2d Cir. 1960). We therefore1 enforce the Board’s order in its entirety. . For example, employee Shea testified as follows: “Q.- Did you observe what Mr. Winter does in the shop? A. He is more or less the shop foreman, you know, write-up man. Q. When you say he is more or less the shop foreman, what does he do? A. Well, he more or less runs the shop in John’s absence. * * * * Q. Now when you say that during Mr. Cifelli’s absence, Mr. Winter runs the shop, what do you mean by that? A. Well, he is more or less in charge. He is the man to see if you have any problems.” Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? A. Food & Drug Administration B. General Services Administration C. Government Accounting Office (GAO) D. Health Care Financing Administration E. Immigration & Naturalization Service (includes border patrol) F. Internal Revenue Service (IRS) G. Interstate Commerce Commission H. Merit Systems Protection Board I. National Credit Union Association J. National Labor Relations Board K. Nuclear Regulatory Commission Answer:
songer_casetyp1_9-3	P	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "miscellaneous". Arnold R. JAGO, Superintendent, Petitioner-Appellant, v. UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF OHIO, EASTERN DIVISION AT CLEVELAND, and Harllel B. Jones, Respondents-Appellees. No. 77-3333. United States Court of Appeals, Sixth Circuit. Argued Oct. 7, 1977. Decided Feb. 2, 1978. William J. Brown, Atty. Gen. of Ohio, Columbus, Ohio, for petitioner-appellant. Gary T. Kelder, Syracuse, N. Y., Gordon S. Friedman, Cleveland, Ohio, Richard L. Aynes, Akron, Ohio, for respondents-appel-lees. Before CELEBREZZE and ENGEL, Circuit Judges, and GRAY, Senior District Judge. Hon. Frank Gray, Jr., Senior District Judge, United States District Court for the Middle District of Tennessee, sitting by designation. ENGEL, Circuit Judge. The Superintendent of the Southern Ohio Correctional Facility has petitioned this court for a writ of mandamus to compel the respondent district judge to withdraw a grant of bail to Harllel Jones, the successful petitioner for a writ of habeas corpus in the district. court. The federal habeas corpus petition challenged the validity of a 1972 conviction in an Ohio Court of Common Pleas for second degree murder and shooting with intent to kill or wound. Judgment in the habeas corpus proceeding was entered on February 10, 1977, granting the writ and ordering Jones’ release unless the state began a new trial within 90 days. On February 15 Jones applied for bail, and on March 2 petitioner Jago filed a notice of appeal and moved for a stay of execution of the judgment. The district court denied both the request for bail and the motion for a stay on March 7. Jago sought in this court a stay of the judgment, which was granted on April 19. Upon a renewed application for bail, the district court on June 24, 1977 ordered Jones released pending the appeal on the condition that he post bail in the amount of $10,000, ten percent deposit. In ordering Jones’ release, District Judge Frank J. Battisti noted that the 90-day period for a new trial had long since expired and that the appellate process promised to last several more months. He concluded: Under these circumstances, continued imprisonment of the petitioner by the state can no longer be justified. The petitioner is possessed of a final judgment that his trial did not meet constitutional standards of fairness and is by now entitled to release on bail while the state pursues its appeal. The state asserts that after he had originally denied bail and a notice of appeal had been filed, the district judge was without any power to act. At first blush this position appears to have much merit, especially in the light of the express language of Rule 23(d), Federal Rules of Appellate Procedure: An initial order respecting the custody or enlargement of the prisoner and any recognizance or surety taken, shall govern review in the court of appeals and in the Supreme Court unless for special reasons shown to the court of appeals or to the Supreme Court, or to a judge or justice of either court, the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made. Relying upon a literal reading of the rule, the state argues that the district judge’s “initial” order denied release and thus must govern Jones’ custody during appeal unless changed by the court of appeals for “special reasons.” Furthermore, the state relies upon the general proposition that the filing of a notice of appeal divests the district court of jurisdiction and transfers such jurisdiction to the court of appeals, citing the following Sixth Circuit cases: Oak Construction Co. v. Huron Cement Co., 475 F.2d 1220 (6th Cir. 1973); Hogg v. United States, 411 F.2d 578 (6th Cir. 1969); Keohane v. Swarco, Inc., 320 F.2d 429 (6th Cir. 1963); United States v. Frank B. Killian Co., 269 F.2d 491 (6th Cir. 1959); Walker v. Felmont Oil Corp., 262 F.2d 163 (6th Cir. 1958), cert. denied, 361 U.S. 840, 80 S.Ct. 61, 4 L.Ed.2d 78 (1959). The order granting bail was entered after the notice of appeal had been filed and the case docketed in this court. Thus the state contends that the district court acted without jurisdiction. The earlier order denying bail, while also entered after the appeal was noted, is not subject to this defect, it urges, because an application had been made prior to the filing of the notice. The state also correctly points out that habeas corpus petitioners are not subject to the provisions of Rule 9, Federal Rules of Appellate Procedure, pertaining to admission to bail of defendants in direct criminal appeals. In considering similar arguments in the district court, Judge Battisti concluded: The respondent interprets this rule [23(d)] to mean that modification of an initial order respecting custody is limited to the appellate courts. But, clearly, this is a misreading of the provision. Though the rule indicates the truism that on review in the court of appeals or the Supreme Court an order can only be modified by a judge or justice of that court, it neither states nor implies that the district court is divested of jurisdiction to modify or reconsider its orders concerning custody. In fact this rule states a limitation on the discretion of appellate courts to modify initial orders and, thereby, reemphasizes the responsibility of the district court to determine the propriety of release pending appeal. According to this rule, absent “special reasons,” the appellate courts are, in fact, to be governed by the rulings made by the lower courts regarding custody. Hence, this court not only has jurisdiction to consider the petitioner’s motion by virtue of Rule 23(c), but also has a special obligation to modify, if the circumstances require, an order which the court of appeals might otherwise consider binding by virtue of Rule 23(d). Rule 23(c) states that a successful petitioner for habeas corpus “shall be enlarged” pending appeal, unless the court otherwise orders. After thorough review of the historical precedents to Rule 23(c), the Third Circuit Court of Appeals concluded in United States ex rel. Thomas v. New Jersey, 472 F.2d 735 (1973) that under Rule 23(c) there is “a very strong presumption that a petitioner holding a final judgment that his detention is unlawful should not be left in state custody” and, further, that the court should exercise its discretion to allow the state to retain custody only in “limited situations,” supra at 743. The issues raised by the superintendent’s petition are ones of first impression in this circuit and have considerable practical importance in the administration of the law of habeas corpus in the federal courts. A consideration of the historical role of habeas corpus generally and of Rule 23 in particular persuades us that Judge Battisti retained the power to release Jones under the circumstances here. Any consideration of the meaning of Rule 23 and of the retained authority of the district judge to enter orders affecting custody after filing of the notice of appeal must begin with the recognition that “[essentially, the proceeding is unique. Habeas corpus practice in the federal courts has conformed with civil practice only in a general sense.” Harris v. Nelson, 394 U.S. 286, 294, 89 S.Ct. 1082, 1087, 22 L.Ed.2d 281 (1969); accord, Schlanger v. Seamans, 401 U.S. 487, 490 n. 4, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971). While there may be a justifiable inclination to consider contemporary habeas corpus proceedings in federal court primarily as vehicles for the resolution of knotty constitutional issues, the writ is essentially a very physical one. This is its fundamental nature even today. Above all it deals with the issue of personal freedom from imposed restraints. In its most literal terms, a writ commands a custodian to bring the aggrieved party into the presence of the judge issuing the writ and at that time to justify the detention. Historically the judge then inquired into the custodian’s reasons, and if he found them unlawful or inadequate, he ordered the immediate release of the person so held and the matter was closed. Immediacy was and is its essence: This is a high prerogative writ, and therefore by the common law issuing out of the court of the king’s bench not only in term-time, but also during the vacation, by a fiat from the chief justice or any other of the judges, and running into all parts of the king’s dominions: for the king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted. 3 W. Blackstone, Commentaries on the Laws of England 131 (E. Christian ed. 1822) (footnotes omitted). It is true that in the great bulk of cases in the federal courts prisoners in state custody remain physically in the state institution while their petitions for release under the writ are processed through the district courts and any subsequent appeals. It is important to remember, however, that the prisoners in state correctional institutions are not the only potential beneficiaries of the writ or of the laws authorizing federal judges to issue it. The Supreme Court has commented, “It is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.” Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). The underlying physical nature of habeas corpus proceedings has been well stated by Judge Hastie, concurring in Johnston v. Marsh, 227 F.2d 528, 532 (3rd Cir. 1955): Unique procedure characterizes the administration of the remedy of habeas corpus. When a court with jurisdiction of the subject matter receives a petition for habeas corpus which is not inadequate on its face, normal procedure is to issue a writ of habeas corpus, ordering the person who is detaining the petitioner to bring him before the court for hearing and decision whether he is unlawfully deprived of his liberty. The district court issued such an order here and in obedience thereto the state warden produced his prisoner. At that juncture the body of the petitioner came under the lawful control of the district court. In legal contemplation that control continues pending decision whether to free the petitioner or to return him to state custody. During that period detention is by force of the writ of habeas corpus, and the antecedent detaining authority is superseded for the time being. Normally, where the petitioner is a prisoner serving a sentence upon conviction of crime, the court before which he is brought by writ of habeas corpus directs the warden to hold him until the court can decide the case. But this procedure is not in derogation of the controlling concept that the body is being held pen-dente lite under authority and subject to order of the court which has issued the writ. Once this concept is recognized, it becomes clear that the particular interim disposition which the court makes of the body is a judicial function of that court to be discharged, absent any controlling statute, in the exercise of judicial discretion, all relevant circumstances considered. The court is under no ministerial duty to direct or permit the person who produces the petitioner to continue to hold him during this period. Johnston v. Marsh typifies the problems concerning physical custody which must necessarily be faced in a very practical way by the habeas corpus judge where there is delay in reaching a disposition of the petitioner’s case. In Johnston the petitioner was admitted to bail pending disposition on the merits by the district court, where it was shown that he was an advanced diabetic and was, under the conditions of confinement, rapidly progressing toward total blindness. The state prisoner thus required hospitalization, and the court conditioned the admission to bail upon his going to and remaining in a private hospital. Judge Goodrich’s opinion in Johnston traced to some extent the exercise of the authority to admit to bail in habeas corpus cases, pending decision on the merits, as recognized in England and in the United States: One of the inherent powers of the judiciary with regard to proceedings before it has been the admission of a prisoner to bail where, in the exercise of his discretion, the judge deems it advisable. It is clear that at common law courts had the inherent power to grant bail. See, e. g., Queen v. Spilsbury, [1898] 2 Q.B. 615, 620. This authority was exercised in habeas corpus cases pending decision on the merits. In re Kaine, 1852, 14 How. 103, 133, 55 U.S. 103, 133, 14 L.Ed. 345 (dissent); Barth v. Clise, 1870, 12 Wall. 400, 402, 79 U.S. 400, 402, 20 L.Ed. 393; 16 English & Empire Digest 268 (1923). Our Federal judiciary has consistently recognized that at common law this inherent power existed. See, e. g., United States ex rel. Carapa v. Curran, 2 Cir., 1924, 297 F. 946, 954, 36 A.L.R. 877; United States v. Evans, C.C., 1880, 2 F. 147, 152; Ewing v. United States, 6 Cir., 1917, 240 F. 241, 248. Yet whether Federal courts have this authority has been the subject of considerable controversy. The principal cases are compiled in Principe v. Ault, D.C.N.D. Ohio 1945, 62 F.Supp. 279, 281. On apparently the only occasion at which this question has been presented to it, the Supreme Court, in dicta, said that it was unwilling to hold that circuit courts do not have this inherent power. Wright v. Henkel, 1903, 190 U.S. 40, 63, 23 S.Ct. 781, 47 L.Ed. 948. We believe that the basic misconception in those decisions denying this authority lies in their view that since Federal courts have limited, statutory jurisdiction, their powers in proceedings involving this jurisdiction are necessarily limited and must be statutory. See Principe v. Ault, D.C.N.D.Ohio 1945, 62 F.Supp. 279, 282. This, as already indicated, is not our view of the matter. 227 F.2d at 531 (footnote omitted). The general rule that an appeal to the circuit court deprives the district court of jurisdiction as to any matters involved in the appeal is neither “a creature of statute” nor “absolute in character.” Hoffman v. Beer Drivers & Salesmen’s Local Union 888, 536 F.2d 1268, 1276 (9th Cir. 1976). Contrary to the contention of the state, the question concerning physical custody of the defendant pending review does not affect the matters involved in the appeal itself. The habeas petitioner is not physically transferred to the appellate court, though the issues concerning his petition are presented there. The order from which the appeal is taken provided that because of a constitutional violation in his state court trial, the petitioner should be granted the writ unless the state retried him in ninety days. This decision did not in any way relate to or concern the matter of his custody pending the appeal, although his personal freedom was at issue in each instance. In this respect, the case is not unlike many others in which the district court has of necessity a retained power to act even though a judgment in the case may be the subject of a pending appeal. See 9 Moore’s Federal Practice ¶ 203.11 at 734-35 (2d ed. 1975). In Hogg v. United States, supra, we recognized that a district court continues to have jurisdiction to act in aid of the appeal as authorized under the federal rules. 411 F.2d at 580. Certainly if the physical welfare of the petitioner is the responsibility of the district court during the appeal and if the question of his custody does not affect the merits of the appeal itself, it is not unreasonable to believe that there is a retained power in the district court to aid the appeal by undertaking that responsibility, at least in the absence of its exercise by an appellate court. In Hoffman v. Beer Drivers, supra, the Ninth Circuit went so far as to permit the district court’s alteration of a preliminary injunction in a labor dispute even though that very injunction was then pending in the court of appeals. The court reasoned that because there was a continuing necessity to maintain a status quo in light of new facts which developed after the entry of the original order, the district court ought to be allowed to retain supervisory control as the circumstances dictated. 536 F.2d at 1276. A similar responsibility for custody decisions is reserved in the district court for direct criminal appeals by the express provisions of Rule 9(b), Federal Rules of Appellate Procedure. Release pending an appeal must be first sought in the district court even after an appeal has been noted from the judgment of conviction. See 9 Moore’s Federal Practice ¶ 209.01[2] at 1504, ¶ 209.06 at 1512 (2d ed. 1975). We believe that a proper understanding of the history of Rule 23 supports a conclusion that it, also, preserves in the district judge authority to issue one or more orders regarding the custody or enlargement of a prisoner pending the review of the decision in the habeas corpus action. The district court does not lose his jurisdiction when an appeal is noted from the decision. However, on motion by a party, the court of appeals or a single judge of the court may modify any such order, or make an independent custody order, but only where “special reasons” are found to do so. A good summary of the history of Rule 23, particularly subdivision (c) which is applicable in this case, is found in United States ex rel. Thomas v. New Jersey, 472 F.2d 735 (3rd Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 121, 38 L.Ed.2d 123 (1973). There the district court had granted a petition for a writ of habeas corpus to a state prisoner and ordered that if no appeal was taken by the state and no retrial was begun within 60 days, the petitioner was to be released. The order also stated that during the pending appeal the state county court was to entertain an application for bail by the petitioner, which was to be fixed in a reasonable amount. The prisoner then applied to the state court which declined to entertain the application. Therefore the district court amended the initial order to provide that the prisoner would be released from custody on the posting of a bond of a designated amount with the state court. On appeal the Third Circuit held that it was improper for the district court to order a state trial court to admit the petitioner to bail and remanded the case to the district court for a hearing as to the amount of any bond which would be deposited in the federal court as a condition of release. Notwithstanding the language of Rule 23, the Third Circuit gave no indication that the district court was without power to modify the earlier order. It observed: The equivalent of that Rule [Rule 23(c)] has been in effect since at least 1886. In that year the Supreme Court adopted a rule: “Ordered, That the following regulations be established under section 765 of the Revised Statutes: RULE 34. CUSTODY OF PRISONERS ON HABEAS CORPUS. ****** 3. Pending an appeal from the final decision of any court or judge discharging the prisoner, he shall be enlarged upon recognizance, with surety, for appearance to answer the judgment of the appellate court, except where, for special reasons, sureties ought not to be required.” 117 U.S. 708. This rule or its equivalent has been a part of the rules of the Supreme Court ever since. Its present equivalent is Rule 49(3) of the Supreme Court Rules. The reference to Revised Statutes, § 765 is to the statute which gave the Supreme Court general authority to regulate habeas corpus proceedings, including regulations “for the custody and appearance of the person alleged to be restrained of his or her liberty.” Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385. Rule 34 became Rule 42 in the 1925 Rules, 266 U.S. 685, Rule 45 in the 1928 Rules, 275 U.S. 629, and Rule 49 in the 1954 Rules, 346 U.S. 999. Revised Statutes, § 765 was repealed in the 1948 revision of title 28, but the statutory authority for Rule 49(3) of the Supreme Court Rules cannot be doubted. See 28 U.S.C. § 2071 (rule making); 28 U.S.C. § 2101(f) (stays); 28 U.S.C. § 2251 (stays in habeas corpus cases); 28 U.S.C. § 1651 (all writs). When in 1967 the Supreme Court promulgated the Federal Rules of Appellate Procedure, it included in Rule 23 a rule identical in language with its own Rule 49. Thus, Rule 23(c) is in direct succession from the original Supreme Court Rule 34(3) adopted in 1886. Even though until 1967 it appeared in the Supreme Court rules, at all times it has dealt with the duty of the district courts in habeas corpus cases. In 1886 the language requiring the enlargement of the successful habeas corpus petitioner was mandatory. The only discretion was in deciding whether a surety on his recognizance ought to be required. The mandatory language with respect to enlargement of the successful petitioner was carried forward until 1967. In that year, however, Rule 49(3) was revised to provide that the successful petitioner “shall be enlarged upon his recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or this court, or a judge or justice of either court, shall otherwise order.” The revised language was carried into Rule 23(c), Fed.R.App.P. Thus from 1886 to 1967 a judge granting habeas corpus relief was under a flat mandate to enlarge the petitioner pending appeal. In United States ex rel. Collins v. Claudy, 204 F.2d 624 (3rd Cir. 1953) this court, reversing the denial of a habeas corpus petition and ordering that the writ issue, recognized that the state might seek a reversal in the Supreme Court. It held, therefore, “. . .we will entertain a request for the enlargement of the petitioner on bail pending final disposition of this case if any further proceedings shall postpone the issuance of the mandate of this court in normal course. See our Rule 15(3); Supreme Court Rule 45(3).” Id. at 630. Since 1967 an order such as was entered in the Collins case would not be mandatory. But it is clear from the history of the rule prior to the 1967 change that there is still a very strong presumption that a petitioner holding a final judgment that his detention is unlawful should not be left in state custody. The 1967 change was not intended to adopt a general rule in favor of custody pending appeal, but only to substitute discretion, to be exercised in limited situations, for what was formerly a mandatory release requirement. See E. Bosky and E. Gress-man, The 1967 Changes in the Supreme Court’s Rules, 42 F.R.D. 139, 161 (1967). There is no question, then, that the district court had the power to order Thomas’ enlargement from state custody pending the state’s appeal. 472 F.2d at 742-43 (footnote omitted). The Supreme Court rule which governed release of prisoners pending appeal in habe-as corpus cases between 1954 and 1967 was more capable of the construction sought here by the state than the present rule. Rule 49(3) of the Supreme Court Rules during that period stated: 3. Pending review of a decision discharging a prisoner on habeas corpus, he shall be enlarged upon recognizance, with surety, for his appearance to answer and abide by the judgment in the appellate proceeding; and if in the opinion of the court in which the case is pending, or of a judge or justice thereof, surety ought not to be required the personal recognizance of the prisoner shall suffice. 346 U.S. at 1000 (emphasis added). Subsection 5 of the same rule indicated that the “court in which the case is pending” meant the appellate court, after a notice of appeal had been filed: 5. This rule applies only to cases arising or pending in courts of the United States. For the purpose of this rule, a case is pending in the court possessed of the record until a notice of appeal or a petition for writ of certiorari has been filed, or until the time for such filing has expired, whichever is earlier; and is pending on review in the appellate court after the notice of appeal or the petition for writ of certiorari has been filed. Id. (emphasis added). Thus, in Lewis v. Henderson, 356 F.2d 105 (6th Cir. 1966), our circuit tacitly indicated agreement with a district court determination that it was without jurisdiction under Rule 49(5) to release the petitioner on recognizance pending appeal after the notice of appeal had been filed. See also Hash v. Henderson, 262 F.Supp. 1016 (E.D.Ark.), aff’d 385 F.2d 475 (8th Cir. 1967). A contrary result, however, was reached by the Fifth Circuit in Jimenez v. Aristi-guieta, 314 F.2d 649 (5th Cir. 1963), under this earlier version of the rule. There a former chief executive of Venezuela contested a district court order revoking bail on the same day the Fifth Circuit affirmed the district court’s order dismissing a habe-as corpus petition. While observing that the order of revocation was in strict accordance with the original order of the district court and came after the appellate court had provided in its decision that the mandate was to be issued forthwith, the court of appeals did not hesitate to acknowledge the continuing authority of the district court to address questions concerning the petitioner’s custody pending appeal and noted with approval numerous necessary modifications of the first order which had been entered by the district court during the process of the appeal. 314 F.2d at 651-52. Other decisions appear, at least by inference, to have recognized the authority in the district court to enter a custody order after an appeal has been noted. E. g., Aronson v. May, 85 S.Ct. 3, 13 L.Ed.2d 6 (Douglas, Circuit Justice, 1964); United States ex rel. Barnwell v. Rundle, 461 F.2d 768 (3rd Cir. 1972); Byrd v. Smith, 407 F.2d 363 (5th Cir. 1969); O’Brien v. Lindsey, 202 F.2d 418 (1st Cir. 1953); United States ex rel. Paetau v. Watkins, 164 F.2d 457 (2d Cir. 1947); York ex rel. Davidescu v. Nicolls, 159 F.2d 147 (1st Cir. 1947); Smith v. Caldwell, 339 F.Supp. 215 (S.D.Ga.) aff’d mem., 458 F.2d 160 (5th Cir. 1972). See R. Stern & E. Gressman, Supreme Court Practice § 17.15 at 563 (4th ed. 1969). Similarly, other cases have implicitly indicated that the district court may enter more than one order concerning a prisoner’s custody. Ar-onson v. May, supra; United States ex rel. Kwong Hai Chew v. Colding, 105 F.Supp. 857 (E.D.N.Y.1952). The ultimate question which will be decided in this court’s ruling on the merits of the habeas corpus appeal will be Jones’ freedom, and while in a very real sense the district court’s June 24 order achieves the same immediate but tentative result, we do not see admission to bail as interfering with the appellate court’s power of review. In any event we believe that the application of any generalized rule must yield to the unique nature of habeas corpus proceedings. In this regard we agree again with Judge Goodrich in Johnston v. Marsh, supra, 227 F.2d at 530: We think the basis of the judge’s authority in this case is the fact that there is a prisoner before him over whom he has jurisdiction and where his power to act judicially is expressly conferred by statute. (footnotes omitted). The suggestion by the district judge in his opinion that Rule 23 states a “limitation on the discretion of appellate courts to modify initial orders” rather than a limitation on the power of the district court to issue them has considerable merit and is a view which was recognized in Jimenez v. Aristi-guieta, supra, 314 F.2d at 652. Given this history and the express limitation upon the powers of Congress contained in Article I of the Constitution, it seems to us that any uncertainty should be resolved in favor of the retained power of the district judge. We also believe that Judge Battisti’s construction of Rule 23(d) is consistent with the other subdivisions of the rule. Rule 23(a) provides: Pending review of a decision in a habe-as corpus proceeding commenced before a court, justice or judge of the United States for the release of a prisoner, a person having custody of the prisoner shall not transfer custody to another unless such transfer is directed in accordance with the provisions of this rule. Upon application of a custodian showing a need therefore, the court, justice or judge rendering the decision may make an order authorizing transfer and providing for the substitution of the successor custodian as a party. An understanding of this portion of the rule, in the light of habeas corpus law generally, shows that it was designed in part to preserve the district judge’s power over the physical custody of the petitioner by prohibiting the custodian from transferring custody of the prisoner to another, without the authorization of the “court, justice or judge rendering the decision.” The language in no manner implies that any power to make that decision is lost or transferred to the appellate court because of the pendency of the appeal. See 9 Moore’s Federal Practice ¶ 223.03 at 3505 (2d ed. 1975). If, therefore, authority is retained in the district judge to make this decision, it is difficult to argue that it was lost with respect to other immediate problems concerning custody by the filing of the notice. Finally, one authority has indicated that the 1967 amendments to Supreme Court Rule 49, which is the source of the exact language in Rule 23, Fed.R. App.P., were in fact intended to ensure that a district court could make custody orders after a notice of appeal had been filed: A group of amendments to the various paragraphs of Rule 49 makes it possible for the court or Justice or judge who has heard the habeas corpus application to issue orders respecting custody or enlargement of the prisoner pending appeal. Under the former provisions of Rule 49, once a notice of appeal was filed, such authority was vested solely in appellate courts or appellate judges or Justices. B. Boskey & E. Gressman, “The 1967 Changes in the Supreme Court’s Rules,” 42 F.R.D. 139, 160 (1968) (emphasis added). The reference to “orders” respecting custody or enlargement pending appeal together with the deletion of the language of former Rule 49 convincingly demonstrates that the amendments were intended to retain in the district court power to issue orders respecting custody or enlargement of the petitioner at least until a party seeks a modification or change of such an order by motion in the court of appeals. Petition denied without prejudice to a motion by the state to revoke petitioner’s bail for “special reasons”. . The petitioner’s application also sought a writ of prohibition. We need not consider that request, as petitioner concedes that it “ostensibly became moot” when Harllel Jones was actually released on June 24, 1977 pursuant to the district court’s order. . The petitioner posted the required bail bond and has been released during the state’s appeal of the judgment in the habeas action. . For examples of the variety of uses to which the writ has been put both in England and in the United States, see Jones v. Cunningham, supra. . We recognize that different policy considerations may govern in Rule 9 and Rule 23 situations. In direct appeals of federal criminal convictions the district judge has a superior ability to determine the propriety of bail, because he participated in the trial. In habeas corpus actions the district judge will often not be familiar with the prisoner, and his concern will simply be in determining interim custody arrangements while he reviews the petitioner’s claims. . Article I, section 9 states in part, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public safety may require it.” . It is not necessary for us to decide to what extent the “special reasons” language of Rule 23 affects any ordinary review powers of this court, but see in this regard In re Johnson, 72 S.Ct. 1028, 96 L.Ed. 1377 (Douglas, Circuit Justice, 1952), and Aronson v. May, 85 S. Question: What is the specific issue in the case within the general category of "miscellaneous"? A. miscellaneous interstate conflict B. other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power) C. attorneys (disbarment; etc) D. selective service or draft issues (which do not include 1st amendment challenges) E. challenge to authority of magistrates, special masters, etc. F. challenge to authority of bankruptcy judge or referees in bankruptcy G. Indian law - criminal verdict challenged due to interpretation of tribal statutes or other indian law H. Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights) I. Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act) J. Indian law - federal regulation of Indian land and affairs K. Indian law - state/local authority over Indian land and affairs L. Indian law - tribal regulation of economic activities (includes tribal taxation) M. other Indian law N. international law O. immigration (except civil rights claims of immigrants and aliens) P. other Q. not ascertained Answer:
songer_direct1	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. John KOIN and Frances Koin, Plaintiffs-Appellants, v. Eugene C. COYLE, District Director of Internal Revenue for the Chicago District, his Servants, Agents, Employees and Attorneys, Defendants-Appellees. No. 16630. United States Court of Appeals Seventh Circuit. Nov. 1, 1968. Anna R. Lavin, Chicago, Ill., for plaintiffs-appellants. Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Chief, Appellate Section, Joseph M. Howard, Atty., Tax Division, Dept. of Justice, Washington, D. C., Thomas A. Foran, U. S. Atty., Chicago, Ill., John P. Burke, Atty., Dept. of Justice, Washington, D. C., for defendants-appellees. Before KNOCH, Senior Circuit Judge and KILEY and CUMMINGS, Circuit Judges. KILEY, Circuit Judge. The district court dismissed plaintiffs’ suit seeking to restrain defendant Director, et al., from using evidence, alleged to have been illegally seized, and to enforce a previous court order suppressing the challenged evidence. Plaintiffs appealed and we affirm. The complaint shows that: In 1962 defendant agents, armed with warrants, searched the premises of Empire Press, Inc., in Chicago, and seized records, machinery and other personal property. In a subsequent libel proceeding brought by the United States against the material seized, Empire intervened and moved to suppress from evidence the seized material. The motion was granted, and that order, entered April 2, 1963, not appealed, is now final. The defendants in 1966 told plaintiffs that wagering tax assessments were to be made against them on the basis of information obtained from the material seized at Empire. Plaintiffs were advised that the material would be used despite the order of suppression. Plaintiffs then brought this suit for a holding, and order, that defendants may not use the material as a basis for the intended assessment. Defendants moved to dismiss on the ground, inter alia, that the complaint sought declaratory judgment relief “with respect to Federal taxes” and is accordingly barred under 28 U.S.C. § 2201 (1964); and that the suit was to restrain the assessment of a tax and prohibited therefore under 26 U.S.C. § 7421(a). An affidavit of a government attorney, in support of the defendants’ motion, discloses that in a November, 1963, criminal proceeding, United States v. Zimmerman (an unreported case), a motion to suppress as evidence the material seized at Empire was made by Zimmerman, an Empire employee, with reliance upon, inter alia, the order of suppression in the libel suit seven months earlier. A different judge from the one in the libel suit denied Zimmerman’s motion, even though he was aware of the prior suppression order in the libel suit. The affidavit also states that the “principal basis” for the proposed assessment against plaintiffs was the voluntary affidavits which plaintiff John Koin gave defendants in 1962. These were incorporated by reference in the government affidavit. Plaintiffs answered the motion to dismiss. The district court thereafter, without express reason, entered the dismissal order before us. Plaintiffs state in this court that they do not seek a judicial declaration and that they do not seek to restrain the assessment of a tax. They contend that, this suit is to enforce the early order of suppression, and is therefore not a suit prohibited by 28 U.S.C. § 2201 or 26 U.S.C. § 7421(a). They argue that had the defendants returned the evidence as ordered in April, 1963, it would not be available for use now. However, the complaint as presented in the Appendix does not allege that the order of suppression ordered the material returned to Empire. And we reject the argument that the Koin suit does not seek to restrain the assessment of the tax. True, the suit does not directly and expressly aim at the assessment. But it is directed expressly at the means to that end, and in our view is substantially aimed at restraining the assessment. It cannot be seriously contended that precluding the assessment is not the end sought. We do not view this proceeding as a suit to force the district court to obey the order of suppression of April 2, 1963. But if we did, we cannot, in view of the subsequent order of denial of suppression in the Zimmerman case, find a clear basis needed for the extraordinary mandamus remedy sought. In Homan Mfg. Co. v. Russo, 233 F.2d 547 (7th Cir. 1956), this court held that a suppression order in a prior criminal case involving the same defendants was a procedural order in that case only, and “was not an order of permanent general outlawry against all use of the documents involved.” Since the suppression order pursuant to Empire’s motion in the libel suit was for that case only, it was not controlling in the Zimmerman case, and is not controlling here. We think this court’s decision in Zamaroni v. Philpott, 346 F.2d 365 (7th Cir. 1965), disposes of the issue here on appeal. The rule announced is that “collateral determination of the admissibility of evidence in an administrative tax proceeding or investigation is not a proper sphere for injunctive intervention in the exercise of equitable jurisdiction.” The court there agreed with the “observation” in Campbell v. Guetersloh, 287 F.2d 878, 881 (5th Cir. 1961), that a court should not pass upon questions of weakness and proof in the “Director’s” case until his function is completed, and the entire case is presented for review. The congressional policy of limiting jurisdiction in the area of federal taxes is clearly shown in the express exception from federal court jurisdiction of injunction actions in 26 U.S.C. § 7421 (1964). Implicit in the Zámaroni rule is the notion that the suitor has an adequate remedy at law. See Kennedy v. Coyle, 352 F.2d 867 (7th Cir. 1965). We have no way of knowing from the record the circumstances surrounding the 1962 searches and seizures in order to determine whether the order of suppression or the order denying suppression of the seized material is correct. The fact that two judges disagreed on the point precludes us from anticipating that in a suit for tax refund in the district court or in an appeal to the tax court the government would in no event prevail on the question of admissibility of the seized evidence. See Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962); Kennedy v. Coyle, 352 F.2d 867, 870 (7th Cir. 1965). Since we hold that this suit is barred by 26 U.S.C. § 7421, we do not reach the question whether this suit is a declaratory judgment action, which would be barred by 28 U.S.C. § 2201. Furthermore, we do not reach, on this appeal, the question of the plaintiffs’ standing to complain of the search and seizure. But see United States v. Granello, 365 F.2d 990 at 995-996 (2d Cir. 1966). The judgment is affirmed. . § 2201. In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. . § 7421(a) * * * [N]o suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. McNEELY v. MAYOR AND BOARD OF ALDERMEN OF CITY OF NATCHEZ. (Circuit Court of Appeals, Fifth Circuit. March 31, 1925.) No. 4485. Commerce <@=>55, 63 — City without power to prohibit operation of interstate ferry or exact license fee for privilege. While municipal corporations may adopt and enforce reasonable regulations for the safety and convenience of the public using ferries, and may fix reasonable rates to be charged in carrying passengers, vehicles, and freight from their own shores, they cannot prohibit the operation of interstate ferry, nor exact a license fee for the privilege of landing or taking on passengers, vehicles, etc. Appeal from the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge. Bill for injunction by S. B. McNeely against the Mayor and Board of Aldermen of the City of Natchez. Decree for defendants, and plaintiff appeals. Reversed and remanded, with instructions. L. T. Kennedy, of Natchez, Miss., and Hugh Tullis, of Vidalia, La., for appellant. Luther A. 'Whittington and Wilmer Shields, both of Natchez, Miss., and J. B. Brunini, of Vicksburg, Miss., for appellees. Before WALKER, BRYAN, and FOSTER, Circuit Judges. FOSTER, Circuit Judge. Appellant, S. B. McNeely, filed his bill, seeking interlocutory and final injunctions to prevent interference by the mayor and board of aider-men of the city of Natchez with his operation of a ferry on the Mississippi river between Natchez, Miss., and Vidalia, La. The ease was heard on the application for the interlocutory injunction, and from an adverse ruling this appeal is prosecuted. There is no dispute as to the material facts, which are these: McNeely is the owner of three ferryboats, and for something over 20 years has been operating a ferry between Natchez and Vidalia, for which privilege he paid a license fee to each town. He also owns real property suitable for ferry landings on the river front, both at Vidalia and Natchez, and the necessary floating landing stages. His contract with Natchez has expired, and there is some question as to whether his license from Vidalia has been forfeited; but that is immaterial, as the same argument applies to both towns. In June, 1924, the city of Natchez adopted an ordinance providing for public ferries between the said two towns. The ordinance is rather lengthy, but may be thus epitomized: It prohibits the operation of a ferry from any other landing than that fixed in the ordinance, prescribes rates to be charged, schedules to be maintained, the size and character of boats to be employed, contemplates the granting of an exclusive privilege to operate the ferry for the term of 10 years, on payment of an annual fee of $2,-000, and imposes a penalty of $30 a day on any one else operating a public ferry from the city of Natchez without a franchise from the mayor and the hoard of aldermen. Appellant alleges that his property, used in the operation of his ferry, is worth over $100,000, and it is admitted that it is worth $60,000. It is also admitted that his annual revenue exceeds $5,000, and that he will be totally deprived of 'it if the ordinance is made effective. It is the contention of appellant that it is beyond the power of the city of Natchez to exact a license fee for the operation of a ferry, as it would be a direct and unreasonable burden upon interstate commerce, and, furthermore, that the ordinance, if made effective, would deprive him of his property without due process of law. Appellees concede that the operation of a ferry across the boundary stream between two states is interstate commerce, but contend that an exception is made in the ease of ferries, and that the states have the right to grant exclusive franchises for ferries operating from their own shores, as Congress has never legislated on this particular subject. This court had to consider practically the same question here presented in the case of Long v. Miller, 262 F. 362, and the decision in this ease might be rested on the exhaustive and well-considered opinion of the late Judge George Whitfield Jack, adopted by the court in that ease. Undoubtedly the earlier decisions tend to support the contention of appellees. But in the later cases, particularly Port Richmond Ferry v. Hudson County, 234 U. S. 317, 34 S. Ct. 821, 58 L. Ed. 1330, and City of Sault Ste. Marie v. International Transit Co., 234 U. S. 333, 34 S. Ct. 826, 58 L. Ed. 1337, 52 L. R. A. (N. S.) 574, it is clearly held that, while the states, and consequently municipal corporations acting under their authority, may adopt and enforce reasonable regulations for the safety and convenience of £he public using ferries, and may fix reasonable rates to be charged in carrying passengers, vehicles, and freight from their own shores, they cannot prohibit the operation of a ferry, nor exact a license fee for the privilege of landing or taking on passengers, vehicles, etc. In justification of the ordinance it is the contention of appellees that it was designed to secure adequate service for the public at reasonable rates on ferries forming a connecting link between public highways in Louisiana and Mississippi; that the schedules maintained by appellant were inconvenient and insufficient and the rates charged by him were exorbitant; that if any one else was allowed to operate a ferry between Natchez and Vidalia, a ferry operated under the provisions of the ordinance would be unprofitable and could not be established, so that the public would suffer. Based on this, appellees say, as Congress has never legislated on the subject of ferries, it is within the province of the states to grant exehisive ferny franchises for the benefit of the irublie, and the burden on interstate commerce is negligible. Practically the same question, although applied to interstate highways, was recently considered by the Supreme Court in the cases of Buck v. Kuykendall, 45 S. Ct. 324, 69 L. Ed.-, and Bush v. Maloy, 45 S. Ct. 326, 327, 69 L. Ed.-, both decided March 2, 1925, and the argument Was declared to be unsound. Under authority of the eases above cited it would seem clear that appellant was entitled to a preliminary injunction to prevent interference with the operation of his ferry from his own landing. He could not be required to secure a license from the city of Natchez for that purpose, and the city could not prevent his using his own property as a landing under the conditions disclosed by the record. It is not contended that the ordinance was intended to apply to appellant, except to prohibit his operation of a ferry at all; so no question arises at this time as to any regulations provided by it. On the showing made, appellant was entitled to an interlocutory injunction to preserve the status quo pending a final determination of the suit on its merits. The judgment appealed from is reversed, and the case remanded, with instructions to grant an interlocutory injunction as prayed for. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_circuit	J	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. 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: 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_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Gordon W. CURRY, Jr., Defendant-Appellant. No. 81-3130. United States Court of Appeals, Fifth Circuit. July 29, 1982. Rehearing Denied Sept. 23, 1982. Steve M. Marks, Baton Rouge, La., for defendant-appellant. C. Michael Hill, Asst. U. S. Atty., Baton Rouge, La., for plaintiff-appellee. Before GOLDBERG, WILLIAMS and GARWOOD, Circuit Judges. GOLDBERG, Circuit Judge: Gordon Curry appeals his conviction on three counts of mail fraud, arguing that there was no jurisdiction under the mail fraud statute, that the evidence was insufficient to support a guilty verdict, and that the trial court erred in refusing to instruct the jury that good faith was a defense to the violations charged. While we find that the evidence was indeed sufficient to support the convictions for mail fraud, we conclude that the trial court erred in refusing to provide the requested jury charge. Accordingly, we reverse. FACTS Gordon Curry’s indictment and conviction for mail fraud arise out of his activities as chairman of a citizens’ political action organization during three elections in 1978 and 1979. The defendant is accused of fraudulently converting to his own use thousands of dollars received by him from electoral candidates on behalf of his political organization. In addition, the defendant is said to have mailed false documents to a state election supervisory committee in an effort to both conceal his fraudulent conversion of funds and to deny the state of Louisiana true and correct information concerning campaign finances. Gordon Curry was chairman of the political action committee of an organization incorporated under Louisiana law as P.E.O.P. L.E., Inc. “P.E.O.P.L.E.” was a group of black citizens in the South Baton Rouge area who performed various social, civil, charitable and political functions. In early 1978, a group of P.E.O.P.L.E. members formed a so-called “political action committee,” ostensibly for the purpose of supporting political candidates chosen by the organization. Actually, candidates paid P.E. O.P.L.E. large amounts for its official endorsement, and for providing an array of campaign assistance services such as distributing signs and bumper stickers, printing ballots, and calling voters. P.E.O.P.L.E.’s presidents testified that any funds received from candidates over and above the cost of these election services were to be turned over to P.E.O.P.L.E.’s treasury and used to support programs to benefit youth and the elderly. Thus, P.E.O.P.L.E.’s “political action committee,” served both to support the organization’s political goals, and as a fund-raising vehicle for the organization’s other programs. Gordon Curry was chairman of P.E.O.P. L.E.’s political action committee during three elections in 1978 and 1979. P.E.O.P. L.E. supported eight candidates in the September, 1978 election; six candidates in the November, 1978 election; and two candidates in the April, 1979 election. Candidates endorsed by P.E.O.P.L.E. ran for various offices, ranging from the United States Senate to local school board. In his role as chairman of P.E.O.P.L.E.’s political action committee, Mr. Curry negotiated with, and received funds in cash and check directly from, candidates. In addition, Curry oversaw and managed P.E.O.P.L.E.’s campaign support activities. Candidates testified that P.E.O.P.L.E. workers, led by Curry, provided substantial campaign assistance: they placed signs in voters’ yards, distributed bumper stickers and ballots, manned the polls and set up phone banks for contacting voters. The Government contends that Gordon Curry used his position as Chairman of P.E.O.P.L.E.’s political action committee to defraud that organization of over fourteen thousand dollars. According to the Government’s calculations, Curry received an aggregate of $23,777.80 on behalf of P.E.O. P. L.E. during the three elections in question, and converted $14,975.00 of this to his own personal use. Curry deposited checks from candidates into his own checking account, or cashed the checks. According to the Government, only a small fraction of these funds were ever used to pay for campaign expenses. Instead of turning the balance of funds over to P.E.O.P.L.E., as he was required to do, Curry allegedly used the money for his own personal expenses. Louisiana’s Election Campaign Finance Disclosure Act (hereinafter “the Election Act”) requires political committees to report their campaign finances to a Supervisory Committee. Pursuant to the Election Act, Mr. Curry mailed affidavits attesting to P.E.O.P.L.E.’s campaign finances to the state’s Supervisory Committee after each election. The Government contends that the affidavits mailed by Curry to the Supervisory Committee were false and fraudulent under the terms of Louisiana’s Election Act. According to the Government, the false affidavits were intended by Curry to conceal from the Committee and from P.E.O.P.L. E.’s membership the true amounts of money received by Curry on P.E.O.P.L.E.’s behalf from political candidates, thereby preventing detection of Curry’s scheme to defraud P.E.O.P.L.E. PROCEEDINGS BELOW Curry was indicted on three counts of violating the mail fraud statute, 18 U.S.C. § 1341. Defendant filed several pre-trial motions, including a motion to dismiss the indictment for lack of jurisdiction, which were denied. At the close of trial, defendant submitted a request for a “good faith” jury charge, which was also denied. The jury found Curry guilty of all three counts of mail fraud. The district court denied defendant’s post-trial motions for judgment of acquittal, based on insufficiency of evidence; and for arrest of judgment, based on lack of jurisdiction. Defendant brought this appeal. ISSUES ON APPEAL Three principal questions are presented on appeal. First, assuming arguendo the existence of a scheme to defraud P.E.O.P. L.E., we must determine whether there is sufficient connection between the fraudulent scheme and the affidavits mailed by-Curry to constitute the federal crime of mail fraud. Second, we must examine the record to determine whether there is sufficient evidence to sustain a guilty verdict. Finally, we must decide whether the district court erred in refusing to charge the jury on the issue of defendant’s good faith. THE CRIME OF MAIL FRAUD The mail fraud statute prohibits in general terms the use of the United States mails in furtherance of fraudulent schemes. Thus, in order to establish mail fraud, the Government must prove both the existence of a scheme to defraud, and use of the mails “for the purpose of executing” that scheme. U. S. v. Goss, 650 F.2d 1336, 1341 (5th Cir. 1981); U. S. v. Freeman, 619 F.2d 1112, 1117 (5th Cir. 1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981); U. S. v. Kent, 608 F.2d 542, 545 (5th Cir. 1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2153, 64 L.Ed.2d 788 (1981); U. S. v. Zicree, 605 F.2d 1381, 1384 (5th Cir. 1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980). Specific intent to defraud is an essential element of the crime. U. S. v. Goss, supra; U. S. v. Freeman, supra; U. S. v. Kent, supra at 545 n.3. See generally K. Carlyle, A Survey of the Mail Fraud Act, 8 Memphis State L.Rev. 673, 677-678 (1978) (discussing the intent requirement in mail fraud cases). Accordingly, the defendant’s good faith is a defense to charges of mail fraud. U. S. v. Goss, supra. The definition of a scheme to defraud is quite broad. As a learned judge of this Circuit once remarked in regard to the mail fraud statute, “[t]he law does not define fraud; it needs no definition; it is as old as falsehood and as versatile as human ingenuity.” The language of the mail fraud statute is sufficiently flexible to encompass any conduct “which fails to match the reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society.” Blackly v. U. S., 380 F.2d 665, 671 (5th Cir. 1967). Moreover, a scheme to defraud need not necessarily contemplate loss of money or property to the victims. See, e.g., U. S. v. Isaacs, 493 F.2d 1124, 1149-50 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974); United States v. States, 488 F.2d 761, 764 (8th Cir. 1973); U. S. v. Mandel, 415 F.Supp. 997, 1011 (D.Md.1976), aff’d in relevant part, 591 F.2d 1347 (4th Cir. 1979), aff’d in relevant part, 602 F.2d 653 (4th Cir. 1979) (en banc), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980). Although the Government must prove that some actual harm was contemplated by the defendant, U. S. v. Regent Office Supply, 421 F.2d 1174, 1180 (2d Cir. 1970), it is well-established that a scheme which operates to deprive citizens of “intangible rights or interests” is a scheme to defraud under section 1341. U. S. v. McNeive, 536 F.2d 1245, 1248-49 (8th Cir. 1976). Thus, the mail fraud statute has been interpreted to forbid the use of the mails for schemes to defraud citizens of an elected official’s honest and faithful services, see U. S. v. Isaacs, supra; U. S. v. Mandel, supra; of political and civil rights, see, U. S. v. States, supra ; and of information relevant to public officials’ duties, see, U. S. v. Mandel, 591 F.2d at 1364. See generally, K. Carlyle, supra at 679-680 (discussing schemes to defraud aimed at “intangible” rights). The indictment in this case describes two separate and distinct fraudulent schemes allegedly perpetrated by Curry, each scheme involving a different set of purported victims. First, it is alleged that Curry devised a scheme to defraud P.E.O.P. L.E. of funds collected from political candidates by converting these funds to his own use. This scheme also involved defrauding P.E.O.P.L.E.’s membership of their right to Curry’s honest, true and faithful services as chairman of the political action committee. Second, Curry is alleged to have defrauded the Supervisory Committee of its right to obtain true and correct financial disclosure reports as required by the Election Act. We find that the conduct described in the indictment, if supported by the evidence, would constitute two separate schemes to defraud within the context of the mail fraud statute. The more difficult question is whether the affidavits mailed by Curry could have been “for the purpose of executing” his scheme to defraud P.E.O.P. L.E. Since the mail fraud statute was enacted, courts have been plagued by difficulties in defining the necessary degree of connection between a mailing and a scheme to defraud. A number of “tests” have been formulated. Thus: “[i]t is not necessary that the scheme contemplate the use of the mails as an essential element;” it is necessary only that the mailing be “incident to an essential part of the scheme.” Pereira v. U. S., 347 U.S. 1, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954); and “[t]he requisite statutory purpose exists if the alleged scheme’s completion could be found to have been dependent in some way upon the information and documents passed through the mail.” U. S. v. Kent, 608 F.2d at 546. A document mailed after the completion of a scheme to defraud may still be “for the purpose of executing” the scheme if the mailing was intended to conceal the fraud from the victim and “therefore make the apprehension of the defendants less likely than if no mailings had taken place.” U. S. v. Maze, 414 U.S. 395, 94 S.Ct. 645, 650, 38 L.Ed.2d 603 (1974). The mailings in this case consist of three affidavits sent to the Supervisory Committee charged with enforcing Louisiana’s Election Act. The Government contends that the affidavits were “incidental to an essential element” of Curry’s scheme to defraud P.E.O.P.L.E. in several respects. First, since all political committees are required by law to report to the Supervisory Committee, the affidavits were a necessary part of P.E.O.P.L.E.'s continued existence as a political committee, and thus, of Curry’s scheme to use that organization to obtain funds for himself. In other words, the affidavits were the sine qua non of P.E.O.P. L.E.’s continued political operations, and hence, of Curry’s fraudulent scheme. Under this theory, the truth or falsehood of the affidavits is irrelevant: even if the affidavits were themselves true and correct, Curry would still be guilty of mail fraud because his scheme to defraud P.E.O.P.L.E. was “dependent in some way,” U. S. v. Kent, supra, on the documents mailed. We find that this connection between the affidavits mailed by Curry and his scheme to defraud P.E.O.P.L.E. is, by itself, insufficient to establish a violation of the mail fraud statute. It is true that, ordinarily, the mailing of documents which are themselves innocent may still constitute the crime of mail fraud if the documents are mailed in execution of a scheme to defraud. Parr v. U. S., 363 U.S. 370, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960); U. S. v. Caldwell, 544 F.2d 691, 696 (4th Cir. 1976); U. S. v. Reid, 533 F.2d 1255, 1265 (D.C.Cir.1976). However, mailings of documents which are required by law to be mailed, and which are not themselves false and fraudulent, cannot be regarded as mailed for the purpose of executing a fraudulent scheme. Parr v. U. S., 80 S.Ct. at 1183. The affidavits in this case were mailed by defendant pursuant to the requirements of Louisiana’s Election Act. Under these circumstances, Parr rules our jurisprudence. Thus, if the affidavits were true and correct, as Curry contends, the affidavits cannot, under the holding of Parr, be regarded as mailed for the purpose of executing Curry’s scheme to convert P.E.O.P.L.E.’s funds to his own use. In order to establish a violation of the mail fraud statute in this case, which involves documents mailed pursuant to state law, the Government must prove something more than the mere mailing of the affidavits. If the Government proves that the affidavits were themselves false, and were intended by Curry to defraud Louisiana’s Supervisory Committee of true and correct campaign finance information, Curry’s conviction under the mail fraud statute would be sustained. See U. S. v. Isaacs, 493 F.2d at 1149-50; U. S. v. States, 488 F.2d at 764; U. S. v. Mandel, 415 F.Supp. at 1011. Alternatively, Curry’s conviction would be sustained if the Government proved that the affidavits were false, and that Curry mailed the false affidavits in a deliberate attempt to prevent discovery of his scheme to defraud P.E.O.P.L.E. See U. S. v. Maze, 94 S.Ct. at 650. Under either theory, however, Curry’s good faith belief that the affidavits were in compliance with Louisiana’s Election Act would be relevant to the issue whether the affidavits were mailed for the purpose of executing a scheme to defraud. See U. S. v. Goss, 650 F.2d at 1341. Thus, we must examine the record to determine first, whether there was sufficient evidence of schemes to defraud the Supervisory Committee or P.E.O.P.L.E.; second, whether there was sufficient evidence that the affidavits were mailed in furtherance of the fraudulent schemes; and third, whether the jury was properly instructed as to the relevancy of Curry’s good faith, if any. Throughout our analysis, we will use two standards to evaluate the quality and quantity of evidence. In order to determine if the evidence was sufficient to sustain Curry’s conviction, we must evaluate the evidence in the light most favorable to the Government. Glasser v. U. S., 315 U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), U. S. v. Goss, 650 F.2d at 1341. In deciding whether Curry was entitled to a good faith jury charge, however, we need only search for any evidence of good faith, This is because “if there is any evidentiary support whatsoever for a legal defense, and the trial court’s attention is specifically directed to that defense, the trial judge commits reversible error by refusing thus to charge the jury.” U. S. v. Goss, 650 F.2d at 1344, n.7. Thus equipped with a legal road map and compass, we set off to explore the dense thicket of evidence and argument which comprises this appeal. SUFFICIENCY OF THE EVIDENCE A. Evidence of a Scheme to Defraud The record is replete with evidence that Gordon Curry abused his position of trust as chairman of P.E.O.P.L.E.’s political action committee by diverting funds earmarked for P.E.O.P.L.E. to his own use. Candidates testified that Mr. Curry asked them for sums of money, describing these sums as the candidates’ pro rata share of election expenses. (Candidates who refused to pay were not endorsed.) The money was given to Curry in several ways. Candidates testified that on many occasions, Curry asked for, and received, funds in cash. On other occasions, checks were written out to “P.E.O.P.L.E., Inc.” These checks were endorsed by P.E.O.P.L.E.’s current president, Mr. Ford or Mr. Johnson, and by Mr. Curry, and then deposited in Mr. Curry’s personal bank account, or cashed by Mr. Curry. After P.E.O.P.L.E. had its own bank account, Mr. Curry deposited checks from candidates in that account. He would then request of P.E.O.P.L.E.’s treasurer that she write a check on P.E.O.P.L.E.’s account to Mr. Curry for the amount deposited. These checks were deposited in Mr. Curry’s personal account. It is true that Mr. Curry used his personal account for receipt of candidate’s funds with the knowledge of P.E.O.P.L.E.’s President during periods in which P.E.O.P.L.E. did not have its own account. However, both Mr. Ford and Mr. Johnson testified that Curry was supposed to use the money received from candidates for campaign expenses, and that any excess funds were to be turned over to P.E.O.P.L.E.’s treasury. These funds were to be used for P.E.O.P.L. E.’s programs to assist youth and the elderly- The bulk of campaign expenses incurred by P.E.O.P.L.E. were for salaries to workers who put up signs, distributed information, and served as poll watchers. However, the evidence shows that P.E.O.P.L.E. workers were not paid out of funds deposited in Curry’s account. Rather, they were paid by yet other checks demanded by Curry from candidates. Candidates were instructed to write large numbers of checks for small amounts with the payees’ names left blank. These checks were then distributed by Curry to poll workers. Thus, after elections, Curry was left with thousands of dollars collected from candidates in his personal bank account; money which was not used to pay P.E.O.P.L.E. workers, or for any other campaign expenses. Yet both Mr. Ford and Mr. Johnson testified that none of this money was ever turned over to P.E.O.P.L.E. Instead, Mr. Curry reported to them that P.E.O.P. L.E. suffered from a shortage of funds after elections. In sum, the evidence shows clearly that Curry used his position as chairman of P.E. O.P.L.E.’s political action committee to solicit thousands of dollars from candidates for election expenses. It shows also that instead of disbursing the money either for election expenses or to P.E.O.P.L.E.’s treasury, Mr. Curry converted the money to his own use. Moreover, in light of the testimony of P.E.O.P.L.E.’s presidents, it is not reasonable to assume that Mr. Curry believed he was authorized to use the candidates’ money to compensate himself for campaign work. Both Mr. Ford and Mr. Johnson testified that Mr. Curry was not entitled to receive a salary for his activities as chairman of the political committee. Even if, as Mr. Curry contends, he was entitled to compensation for his campaign efforts, he could not have been entitled to the amounts involved here. According to the Government’s analysis, which is supported by the evidence, Curry took for his own use approximately $14,975.00 of funds received from candidates. This figure far exceeds amounts paid to other P.E.O.P.L.E. members for campaign work, and cannot be construed as reasonable compensation for even the most prodigous of election efforts. Thus, a jury could reasonably conclude that Gordon Curry intentionally used his position as chairman of P.E.O.P.L.E.’s political action committee to defraud that organization of thousands of dollars solicited by Curry from candidates endorsed by P.E. O.P.L.E. Certainly, there is sufficient evidence to show that Curry’s conduct did not comport with our society’s concepts of “fair play and right dealing,” Blackly v. U. S., supra, and thus constitutes a “scheme to defraud” as that term is used in the mail fraud statute. B. Evidence of Mailing in Execution of a Fraudulent Scheme We turn now to the more complicated question of whether there was sufficient evidence to sustain a finding that defendant mailed the three affidavits described in the indictment in a deliberate effort to conceal his scheme to defraud P.E.O.P.L.E.; or in execution of a scheme to defraud Louisiana’s Supervisory Committee of true and correct campaign finance information. A brief excursion into Louisiana state law is necessary to understand the evidence. Under Louisiana’s Election Act, political committees such as P.E.O.P.L.E. are required to report their campaign finances to the Supervisory Committee. Ordinarily, political committees must submit a detailed report which contains the name of each person who contributed money to the political committee and the amount contributed by that person, as well as the total sum of all contributions received by the committee. R.S. 18:1486E(1) and (2). However, there is an exception for “small campaigns.” R.S. 18:1487. In lieu of a full report, a political committee may file an affidavit stating first, that the committee did not receive contributions from any one source in excess of the applicable reporting amount, in this case five hundred dollars; and second, that the committee’s total expenditures did not exceed $5,000. Gordon Curry mailed an affidavit after each election stating that P.E.O.P.L.E. had not received contributions from any one candidate in excess of five hundred dollars. However, the Election Act defines “contributions” broadly as any money received for the purpose of supporting a person’s election to public office. Under the terms of the statute, “contributions” could include money given by a candidate to a political committee to support the candidates own election. The Government argues that the affidavits mailed by Curry were patently false, since P.E.O.P.L.E. received far in excess of five hundred dollars from individual candidates in each of the three elections. Moreover, a jury could reasonably conclude that the false affidavits were mailed in a deliberate effort to conceal Curry’s fraudulent scheme from P.E.O.P.L.E. members. If Curry had submitted nothing to the Supervisory Committee, P.E.O.P.L.E. could have been prosecuted under the Election Act for failure to disclose campaign finances. If Curry had filed a correct report, detailing the amounts of money received from each candidate, he would have run the risk of investigation by P.E.O.P.L.E.’s members, and the possible detection of his fraudulent scheme to keep candidate’s money for his own use. Curry contends, however, that even assuming the existence of a scheme to defraud P.E.O.P.L.E., there is insufficient evidence to sustain a finding that the affidavits were mailed in an effort to conceal the scheme. According to Curry, the affidavits were mailed directly to the Supervisory Committee; they were never distributed to any members of P.E.O.P.L.E., and therefore could not have been used as a device to misrepresent anything to that organization. Although two of the affidavits were presented by Curry to the presidents of P.E.O.P.L.E. for their signatures, both Mr. Ford and Mr. Johnson testified that they did not read the affidavit carefully at the time they signed the documents. No other members of P.E.O.P.L.E. saw the affidavits. We find there is sufficient evidence to support a jury finding that Curry intended the affidavits to conceal his fraudulent scheme. First, a member of the Supervisory Committee testified that reports filed with the Committee became part of the public record, and that local newspapers freqúently published campaign finance reports of particular interest. Thus, Curry risked publication of a detailed report of money received by P.E.O.P.L.E., had he filed such a report. In addition, Curry could not be assured of obtaining Ford’s and Johnson’s signatures on a detailed campaign finance report without risking investigation. The jury could have reasoned that Ford and Johnson each signed a short affidavit without questioning Curry as to its contents because nothing on the face of the affidavit aroused suspicion. However, had Curry presented to the president a long report showing the total amount of funds received by him from candidates, sums which totalled $10,650.00, $7,850.00 and $5,052.80 for the three elections in question, the president might well have demanded an explanation of Curry as to the disbursement of those funds. Certainly, neither Ford nor Johnson would have been likely to accept Curry’s representation that P.E.O.P.L.E. was left with a shortage of funds after each election. In sum, there was ample evidence to sustain a jury finding that Curry mailed the affidavits in a deliberate attempt to conceal his fraudulent scheme from P.E.O.P.L.E.’s members; and thus, that the affidavits were mailed for the purpose of executing Curry’s fraudulent scheme. Moreover, the same evidence supports a finding that Curry falsified the affidavits in order to conceal from the Supervisory Committee the true amounts collected from candidates. Thus, the jury could find that Curry intended to defraud the Supervisory Committee of correct campaign finance information. C. Evidence of Good Faith Having concluded that the evidence was sufficient to sustain Curry’s conviction on mail fraud charges, we turn now to the question whether there was any evidence to support a good faith jury charge. As noted supra, good faith is a defense to charges of mail fraud. Hence, if Gordon Curry believed in good faith that the affidavits were correct, and were in compliance with Louisiana’s Election Act, a jury could not reasonably conclude that the affidavits were intended to defraud the Supervisory Committee of true and correct campaign finance information. In addition, Curry’s good faith belief that the affidavits were correct is relevant to the issue whether the affidavits were mailed by defendant in an effort to conceal his scheme to defraud P.E. O.P.L.E. Because-good faith was an availn-ble defense,-Cur-p-v-was entitled toagood faith-juryjnstruction if there was any evidence at all to support the charge, “regardless of how weak, inconsistent or dubious the evidence of good faith may have been.” U. S. v. Goss, 650 F.2d at 1345. On this record, we cannot say there was no evidence to support a finding that Curry prepared the affidavits in a good faith belief that they were true and correct. The most obvious evidence supporting a finding of good faith is the ambiguity of Louisiana’s Election Act.' The Act defines “a, contribution” as “a gift, loan, advance, or deposit of money ... made for the purpose of supporting, opposing or otherwise influencing the nomination or election of a person to public office.” See Note 18, supra. The Act also requires that any “contributions” received by a political committee must be reported. However, a jury could well decide that Gordon Curry did not, in good faith, regard the money he solicited and received from political candidates as “contributions.” In ordinary parlance, a political contribution is understood as a donation, voluntarily given by a citizen to a candidate, in order to assist in the candidate’s election efforts. Ordinarily, one expects no more in return for his money than that the candidate of his choice is elected. In this case, candidates testified that they transferred funds to P.E.O.P.L.E. in exchange for a definite set of services: P.E.O. P.L.E.’s endorsement, and its workers’ campaigning efforts. As far as the candidates were concerned, they were simply expending funds for necessary services. Accordingly, candidates listed amounts given to P.E.O.P.L.E. as “expenditures” on their campaign finance reports. Thus, the money was seen as no more a “contribution” to P.E.O.P.L.E. than a candidate’s payment for posters would be a “contribution” to a printing shop. And in fact, candidates repeatedly testified that they had specifically refused to authorize P.E.O.P. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_applfrom	L	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). CANADAY v. GUITTEAU, Collector of Internal Revenue. Nos. 7058, 7050. Circuit Court of Appeals, Sixth Circuit. Nov. 13, 1936. George W. Ritter, of Toledo, Ohio, for appellant. William B. Waldo, of Washington, D. C. (Frank J. Wideman, J. Louis Monarch, and J. Leonard Lyons, all of Washington, D. C., Emerich B. Freed, of Cleveland, Ohio, Gerald B. Openlander, of Toledo, Ohio, and William B. Waldo, of Washington, D. C., on the brief), for appellee. Before HICKS and SIMONS, Circuit Judges, and FORD, District Judge. FORD, District Judge. This appeal is from a judgment dismissing appellant’s petition by which he sought to recover certain federal income taxes paid for the years 1927, 1928, and 1929, on account of deficiency assessments by which certain premiums on appellant’s life insurance policies paid during those years by the United States Advertising Corporation, of which he was president and a large stockholder, were treated as income to him and so taxed. Prior to July 11, 1927, upon his own application, appellant procured to be issued- certain insurance policies upon his life, upon which the corporation paid the premiums from the beginning. On July 11, 1927, the appellant and the corporation entered into a written agreement with designated trustees, under the terms'of which all of the policies upon the life of appellant were placed in trust, and the corporation agreed and obligated itself to pay the annual premiums on some of them. By the terms of the trust thereby created, the proceeds, to be derived from the appellant’s life insurance policies, are first to be paid to Ward M. Canaday, Inc. (a corporation which holds all the common stock of United States Advertising Corporation and in which the appellant is largely interested through stock ownership), according to a schedule providing increasing amounts, apparently corresponding to the increase of premium payments, as the years pass. The remaining proceeds are to be held for the use and benefit of the appellant’s wife and daughter during their respective lives; then to the issue of the daughter, if any, and, if none, to the brothers of the appellant, with the provision that, under certain remote contingencies, the trust is to be administered for certain educational purposes. However, the absolute power and right of the appellant to impose his will upon the use of the trust property is preserved by an express provision of the agreement reserving to him the right to change the beneficiaries at his pleasure and the unlimited right to terminate the agreement and abolish the trust, thereby created, at any time he may choose to do so. None of the reserved rights were exercised by the appellant during the years here in question. The United States Advertising Corporation paid the premiums, as agreed, during the years 1927, 1928, and 1929, and in filing its income tax returns for those years it claimed and was allowed to deduct its payments as ordinary and necessary business expenses. These premium payments are the subject of this litigation. It is the contention of appellant that, under the facts above set out, he had no property rights in the policies referred to during the years in question and that, since he failed to exercise any of the rights reserved to him thereunder, he received nothing of value as the result of the investment of capital, labor, or a combination of both; that he received no benefit under the insurance policies; that there was no gain or profit to him, and, hence, the premiums are not taxable to him as income within the meaning of the Revenue Acts of 1926 and 1928 (44 Stat. 9, and 45 Stat. 791), which governed the imposition of federal taxes upon the income of individuals during those years. In the case of Burnet v. Wells, 289 U.S. 670, 679, 680, 53 S.Ct. 761, 764, 77 L.Ed. 439, it is said: “A policy of life insurance is a contract susceptible of ownership like any other chose in action. * * * One who takes out a policy on his own life, after application in his own name accepted by the company, becomes in so doing a party to a contract, though the benefits of the insurance are to accrue to some one else. * * * The rights and interests thereby generated do not inhere solely in those who are to receive the proceeds. They inhere also in the insured who in co-operation with the insurer has brought the contract into being. * * * "The contracts remain his, or his at least in part, though the fruits when they are gathered are to go to some one else.” In the case of Douglas v. Willcuts, 296 U.S. 1, 9, 56 S.Ct. 59, 62, 80 L.Ed. 3, 101 A.L.R. 391, the court said: “We have held that income was received by a taxpayer, when, pursuant to a contract, a debt or other obligation was discharged by another for his benefit. The transaction was regarded as being the same in substance as if the money had been paid to the taxpayer and he had transmitted it to his creditor. Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918; United States v. Boston & Maine Railroad, 279 U.S. 732, 49 S.Ct. 505, 73 L.Ed. 929. See, also, United States v. Mahoning Coal R. Co. (C.C. A.) 51 F.(2d) 208. The creation of a trust by the taxpayer as the channel for the application of the income to the discharge of his obligation leaves the nature of the transaction unaltered.” Nothing appears in the record to show that the United States Advertising Corporation received or expected to receive-any benefits from the insurance policies which its payments preserved and kept alive. In making the payments for the years in question, the corporation simply fulfilled its contractual obligation entered into on July 11, 1927. It charged the expenditures so made to ordinary business expenses. Clearly, the fulfillment of its contractual obligation was not a gift. Nor do the circumstances here disclosed bear any analogy to those cases in which the employer takes out group insurance for the benefit of his employees, regarding such an investment as beneficial to-himself in the way of increased efficiency arising from the consciousness of security and contentment thereby created in the minds of his employees. The judgment of the District Court, holding that the premiums paid were in the nature of compensation to the appellant for his services and constituted income properly taxable to him, is fully supported by the facts disclosed in the record. Yuengling v. Commissioner C.A.) 69 F.(2d) 971. Judgment affirmed. 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_amicus	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 or not there was any amicus participation before the court of appeals. MANNION et al. v. PENN. (Court of Appeals of District of Columbia. Submitted March 12, 1925. Decided April 6, 1925. Petition for Rehearing Denied April 18, 1925.) No. 1734. 1. Patents <§=>II2(I) — Junior parties in interference proceeding can deríve no benefit from fact that patent has been inadvertently issued to them pending senior party’s application. Junior parties in interference proceeding can derive no benefit from fact that patent has been inadvertently issued to them pending senior party’s application. 2. Patents <§=>91 (4)— Diligence of junior parties in interference proceeding in perfecting invention, entitling them to priority, held not shown. In interference proceeding, involving priority of patent consisting of plug of resilient material, designed to clean condenser tubes, evidence showing early experimentation by junior parties held not to show diligence in perfecting invention, entitling them to priority. Appeal from Commissioner of Patents. Interference proceeding involving priority of invention between Marion Penn, senior party, and Martin Mannion and Robert C. Arthur, junior parties. Prom a decision granting priority to the senior party, the junior parties appeal. Affirmed. J. E. Edson and W. L. Symons, both of Washington, D. C., for appellants. W. R. Kennedy, of New York City, for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. VAN ORSDEL, Associate Justice. The junior parties, Mannion and Arthur, appeal from the decision of the Commissioner of Patents awarding priority of invention to appellee, Penn. The invention set out in the claims of the issue is described in the opinion of the Commissioner as follows: “The invention relates to a plug designed to be forced by water or compressed air through condenser tubes for the purpose of cleaning the same. The plug in shape resembles a spool. Its flanged end portions act as wipers which wipe the sediment from the inner surface of the tube and expel it from the end thereof as the plug is forced through the tube.” Some of the counts state that the plug is made of resilient material, some that the intermediate portion is grooved, some that the intermediate portion tapers towards the flanges, and some that the flanged end portions have a greater diameter than the intemiediate portions. Mannion and Arthur filed their application July 1, 1921; Penn filed March 28, 1921. A patent inadvertently was issued to Mannion and Arthur during the pendency of Penn’s application. The burden of proof, therefore, rests upon Mannion and Arthur, the junior parties, since they can derive no benefit from the fact that they are patentees. Mannion and Arthur rely chiefly upon the making and testing of plugs made of wood with disks nailed to the ends. These plugs, it appears, were used to clean tubes of a condenser in 1918. The wooden plugs, however, proved practically worthless, since they would split in the operation. The counts of the issue, however, have little, if any, reference to the wooden plugs, but are limited to either an elastic plug or a plug with the intermediate portion between the flanges grooved. Mannion and Arthur produced evidence to the effect that, at the time the wooden leather plugs were tested, they had in contemplation a plug composed of rubber. The tribunals below held that, even assuming this testimony to be correct, Mannion and Arthur had not been diligent in perf ecting the invention, and could not claim a reduction to practice prior to their filing date. That they were lacking in diligence in this particular when Penn came into the field, is indubitably established. In this view of the case, the concurring decisions of the tribunals of the Patent Office, awarding priority to Penn, are correct. The decision of the Commissioner of Patents is affirmed. Question: Was there any amicus participation before the court of appeals? A. no amicus participation on either side B. 1 separate amicus brief was filed C. 2 separate amicus briefs were filed D. 3 separate amicus briefs were filed E. 4 separate amicus briefs were filed F. 5 separate amicus briefs were filed G. 6 separate amicus briefs were filed H. 7 separate amicus briefs were filed I. 8 or more separate amicus briefs were filed J. not ascertained Answer:
songer_appel2_1_4	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant. Layman BYNUM, J. B. Johnson, E. A. Dillard, Irby Jackson, Leon C. Roe and Gwyn Crouse, Appellants, v. BAGGETT TRANSPORTATION COMPANY, Inc., Appellee. No. 15744. United States Court of Appeals Fifth Circuit. Jan. 11, 1956. Clifford J. Durr, ,“D. N. Hamilton, Montgomery, Ala., for appellants. James A. Simpson, Reid B. Barnes, Lange, Simpson, Robinson & Somerville, Birmingham, Ala., for appellee. Before RIVES, JONES and BROWN, Circuit Judges. BROWN, Circuit Judge. Appellants, owner-lessors of motor trucks under an operating lease to appel-lee, Baggett Transportation Co., Inc., an interstate motor truck contract carrier, sought an accounting of their percentage share of the “earned revenue” or “revenue” fixed in the lease operating contract. Obviously a proper action for accounting in both substance and procedure, involving hundreds of distinct shipments of countless commodities to and from numerous points, presenting thus the inevitable esoteric mysteries of application and interpretation of carrier tariffs, the court referred it all to a Master who heard extensive evidence and filed a detailed 115-page, analytical, well-organized report. The district court, on exceptions to the Master’s report, sustained it in full, and, the testimony heard by the Master never having been transcribed and included as a part of the record, we must, in the very narrow review of a Master’s Report, abide by his fact findings since there is no way to test them under the scrutiny of “clearly erroneous” and we reject the assertion that absence of the hearing record before the district court was a refusal by the Master to comply with the Rule or an abuse of the court’s discretion in not requiring it. Our narrow inquiry is, therefore, to determine whether, as held by the district court, the Master’s conclusions find adequate support and reason on the face of his report. The controversy, a factual one. in the setting of the transportation business over the lawfulness of certain transportation charges and the inclusion of certain items in others, centered finally on five points; The lawfulness of (a) using Section 22 Quotations; (b) handling separate movements at lower rates under TS [tied shipments] or similar basis; and the inclusion of (c) dunnage charges, (d) 6% surcharge, and (e) stop-over charges. The points were significant as rates charged shippers under (a), (b) if unlawful, and items (c), (d), (e) if not included in the accounting though collected from shippers, produced less revenue on which appellants’ percentage would apply. The (a), (b) category was of the greatest importance in volume of shipments and net dollars and, for our purposes, the operation was the same. These involved shipments .for agencies of the United States Government, principally Army and Navy, under rates which were substantially less than the published minimum Contract rates on file with the Interstate Commerce Commission, 49 U.S.C.A. § 318. Shipments made under TS numbers were billed at actual weights rather than minimum weights under the- tariffs, the Section 22 Quotations were preferential rates specifically agreed to with the Government, and in other cases shipments moved for the Army under rates specified in filed minimum schedules with the Navy. The appellants contended that under the terms of the tariff classification separate, distinct shipments could not be tied together as one and to bill the shipper a lower rate in this way, even though it be the Government, was to violate the strict standard of the law requiring the filing and literal adherence to specified minimum rates and charges, 49 U.S.C.A. § 318. The Section 22 Quotations were, they contended, even worse, since Bag-gett as a Contract, not common, Motor Carrier, was ineligible to make Section 22 Quotations. They had to concede, and the findings clearly affirm, however, that these agencies of the United States Government had demanded (and which they could have obtained by the simple execution of contracts or the filing of amended minimum schedules) these favorable terms in the handling of these large, Korean defense shipments, and ■the General Accounting Office had already obtained or demanded refunds and asserted credits against charges billed by Baggett in excess of these lower rates in sufficient typical shipments to reflect a settled pattern of administrative treatment in auditing all future items. Their claim, therefore, was essentially that the truck lease-operating contract fixing compensation in terms of a percentage of transportation revenues gave them a special status to police all shipments and require absolute and literal compliance with effective published mínimums. The consequence of this would be to force on Baggett the Hobson’s choice of acquiescing, at its expense, in ■the construction put on complex tariff problems by owner-drivers claiming added compensation or commencing and maintaining slow, cumbersome, expensive and discouraging litigation probably in the distant Court of 'Claims against one of its best customers. We think both Master and district court were right in rejecting any such course for a carrier. Disposition between owner-lessor and carrier-lessee is not to be tested by that which the carrier might ultimately force a shipper to pay. The test is one of good faith, business judgment and honest practice in billing shippers for the rate which the carrier considers to be properly due and, where genuine controversy arises on the proper Charge, in the resolution of such differences by honorable, practicable compromise and adjustment or litigation as the circumstances indicate to be a wise and prudent course. This is not to open up the evils of preferential favoritism between carrier and special customers which tariff legislation, 49 U.S.C.A. §§ 318, 322(a), forbids for the carrier remains amenable to all such sanctions, civil and criminal. And, between it and its owner-drivers, what it finally retains it must share. In this way, the carrier will comply with its public obligation and satisfy its private duties as well. As the report reflects prudent, vigorous action by Baggett in asserting-its position with agencies of the United States Government with no indication that it has gratuitously relinquished any right to higher rates which would have increased both its and the owner-lessor’s revenues, appellants are, therefore, entitled to share only in the revenues finally collected and retained in that process. On (e) stopover charges, appellants claimed that this added charge of $6.06 payable by the shipper to permit partial delivery en route was a part of earned revenues. The Master considered that it was not for transportation and disallowed it. . Since this involved necessarily the nature of this charge and its-. status in the transportation world, we have, with no record before us, no basis-for redetermination of it. On the remaining items (c) and (d) the Master found that under the applicable tariff rules dunnage charges should not have been billed the shippers and the ex parte 6% surcharge increase in tariff rates, granted by the Interstate Commerce Commission to common carriers only, should not have been billed or collected by Baggett, a Contract carrier. Accordingly he ruled that, it being plain that Baggett could not retain these items where charged and collected, appellants were not entitled to a percentage of them and where their percentage had erroneously been credited to appellants, they should refund the amounts to Baggett. We agree in principle with- this. The result is that we accept the rulings on all of the points (a), (b), (c),: (d), (e) and decline to undertake ourselves or order the district court to reexamine them. We think, however, that-since this is an equitable action for accounting, we must be certain that appellants do receive -their percentage share in any portion of the four items (a), (b), (c), (d) and all related accounting items which are finally retained by Baggett. It is asserted by Baggett that with respect to (a), (b) and similar Tariff, Schedule and Quotation application problems, it either has or will reimburse the United States Government or reduce the invoices not yet paid to those amounts which the Master has found to be due by the shipper for the transportation, and that similar reimbursements or reductions have or . will be made on items (c), (d). These accounting adjustments with the Government may well take years complete. Consequently, we remand the case to the district court for appropriate continued supervision to make certain that appellants do receive their share in all of such amounts ultimately collected and actually retained. Baggett insists that when completed, it will have received and retained only that which the Master fixed as the basis for the percentage share. If it does, it should be discharged; but what it retains, if more than this, it must share. While, subject only to the post-remand supervision provided for herein, we approve all that the Master found, we are of the opinion that the district court erred in affirming, without more, that portion of the report by which a claim for a total of 97 shipments “supported by incomplete evidence” was, in effect, dismissed. It is undisputed and both Master and court found, that there were many errors, mistakes, and discrepancies in the accounts and records kept by Baggett. This being so, the lease' contract obligations and the existence of patent inaccuracies made it a proper case for a full accounting. But in the face of this necessity, the action of Master and court indicates that each felt it was on the appellants to bring forth all of the details as to the amounts charged by Bag-gett to shippers, that shown as the basis for owner-lessor’s percentage, and also facts indicating that such amounts were incorrect and what the correct amounts would be. We think this was wrong. We decline to put it in terms of burden of proof, although the problem is akin to it. We prefer to rest our view on broad equitable principles that, having the obligation to account, one whose accounts are demonstrated to be defective and inadequate must shoulder a substantial obligation diligently to make a correct account. To account is to do just that. The one obliged to account does' not fulfill his duty by supplying only that which the beneficiary requests, that which is conveniently accessible, or remaining silent in the face of the beneficiary’s inevitable difficulty in trying to construct or reconstruct accounts which ought to have been kept and available. Baggett was obliged fully to account. It did not do so on these 97 shipments. We therefore reverse and remand that part of the judgment for further proceedings by the district court as will assure such an accounting. The case is therefore remanded for the further and not inconsistent proceedings provided for herein. Remanded. . The lease covering specific motor trucks required lessor-owner to pay or bear all operating expenses and losses including cargo, and bound lessor not to carry cargo for others. Compensation to lessor, in addition to public liability — property damage insurance and payment of state mileage tax by lessee was fixed as follows: “5. The Company agrees to pay the Owner for the use and operation of said vehicle (s) on whichever of the following basis is applicable, less deductions provided herein: “(a) 15$ per round trip miles travelled ■within the State of Alabama when using Owner’s tractor and Company’s trailer. “(b) 38$ per round trip miles travelled within the State of Alabama when using Owner’s tractor and trailer. “(c) 65% of earned revenue on operation in interstate shipments when using Owner’s tractor and Company’s trailer. “(d) 70% of earned revenue on operation in interstate shipment when using Owner’s tractor and trailer. “(e) 65% of earned revenue when hauling general commodities moving on Government bill of lading in interstate shipments when using Owner’s tractor and Company’s trailer. “(f) 70% of earned revenue when hauling general commodities moving on Government bill of lading in interstate shipment when using Owner’s tractor and trailer. “(g) 60% of earned revenue when hauling explosives moving on Government bill of lading using Owner’s tractor and Company’s trailer. “(h) 65% of revenue when hauling explosives on Government bill of lading using Owner’s tractor and trailer, upon return of the signed delivery receipts for loads hauled and driver’s logs properfy kept. Settlements shall be made weekly.” (Emphasis supplied.) . 1725 separate shipments were involved, and 3073 for five plaintiffs were examined in detail, of which 691 were not in dispute, 97 were supported by incomplete evidence, the remaining 285 being tried on the issues discussed infra. Of these 285, payments for 160 were found to be correct, the plaintiffs [appellants] overpaid in 95 and underpaid in 30. . Fed.Rules Civ.Proc. rule 53(e) (2), 28 U.S.C.A.: “In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous * * . Application to the court for action upon the report and upon objections thereto shall be by motion * . The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.” The district court does not have the right to reconsider, weigh and evaluate evidence to arrive at its own independent conclusions, but must accept those of the Master unless clearly erroneous. Ferroline Corp. v. General Aniline & Film Corp., 7 Cir., 207 F.2d 912, 920; In re Connecticut Co., 2 Cir., 107 F.2d 734, 735; First National Bank & Trust Co. of Racine v. Village of Skokie, 7 Cir., 190 F.2d 791, 796, certiorari denied 342 U.S. 909, 72 S.Ct. 303, 96 L.Ed. 680; Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 689, 693, 694, 66 S.Ct. 3187, 90 L.Ed. 1515, 1524, 1526; Krinsley v. United Artists, 7 Cir., 225 F.2d 579, 582; Moore’s Federal Practice, Vol. 5, § 53.32 [4] pp. 2982, 2983. The concept here is the same as “clearly erroneous” under FRCP 52(a): Moore’s Federal Practice, Vol. 5, § 53.12 [4], pp. 2982, 2983 ; United States v. Village of Highland Falls, 2 Cir., 154 F.2d 224, 227. The findings, when they reach us, have, therefore, a double insulation. . FRCP 53(e) (1) : “The master shall prepare a report * . He shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits * (Emphasis supplied.) . Neither party having procured a trans-script from the reporter prior to the filing of the Master’s report, the district court declined appellants’ motion then made to compel filing unless appellants posted $3,000.00 security for ultimate payment of the reporter’s charges. Appellants objected that this was a burden beyond their financial resources as working men, but they made no effort to qualify for relief under a pauper’s oath, 28 U.S.C. § 1915(b) or tender for settlement and approval by the Master and the district court for its or our use some reasonably suitable substitute record, e. g., FRCP 75 (N), (C), (M). There is no showing that the stenographer was an official, appointed court reporter from whom the judge could have obtained a copy of the transcript without payment, 28 U.S.C. § 753. This action by the court satisfied “unless otherwise directed” in Rule 53(e) (1), footnote 4, supra. . The Master found Baggett indebted on classes of items to appellants, and appellants overpaid (hence indebted to Bag-gett) on others with a net' balance in Baggett’s favor for which a judgment finding was made. The district ■ court, accepting both subsidiary conclusions, nevertheless vacated Baggett’s judgment against appellants on the ground that Baggett, under obligation to keep proper records and concurrently account to driver-owners, could not equitably recoup overpayments made through its own errors. Baggett acquiesced in this. The overpayments were, however, allowed as full credit against amounts found due appellants. Otherwise, the report was confirmed. . Errors claimed concerning admissibility of certain oral testimony before, and its evaluation by, the Master fall, of course, for want of an adequate record for review, footnote 5, supra. . Under Freight Classification Rule 13, § 3, a volume (truck load) rate, lower than the minimum, is permissible for a “shipment” shipped from one plant, in one day by one shipper to one consignee under one bill of lading. Here, however, the Army, for a large consolidated movement required the carrier to treat it as one shipment though actually moved on numerous trucks over a considerable period of time at varying weights less than minimums. The carrier would, of course, obtain the advantage of the total volume traffic, but an owner-driver for such a single load would receive much less revenue. . “Section 22 Quotations”, a term of art, takes its name from 49 U.S.C.A. § 22 allowing carriers to make special, and preferential, rate agreements with the United States Government: “Nothing in this chapter shall prevent the carriage * * * or handling of property free or at reduced rates for the United States, State, or municipal governments * * * or the transportation of persons for the United States Government free or at reduced rates * * . The National Transportation Act, Part II, carefully distinguishes between common and contract motor carriers. 49 U.S.C.A. § 317 permitting Section 22 Quotations refers to common carriers only: § 317(b) “No common carrier by motor vehicle shall charge or demand or collect or receive a greater or less or different compensation for transportation * * * than the rates, fares, and charges specified in the tariffs in effect at the time * * * provided, That the provisions of sections * * * and 22 of this title shall apply to common carriers by motor vehicles subject to this chapter.” [Emphasis supplied.] The Interstate Commerce Commission so held in Baggett’s request for an Advisory Ruling covering similar Governmental shipments, Baggett Transportation Company — Petition for Exemption • — transportation for the U. S. Government, MC-C-1419, (Division 2) May 20, 1953, * * * ICC * * ; the effective date was postponed to September 1, 1953, a date subsequent to the shipments involved here. The Commission recognized, however, that in requiring the filing and publication of minimum rates, Baggett, as a contract carrier, could make whatever contracts it wished with Governmental agencies and, on proper showing, might even be relieved under the proviso of Section 318 from this. . Appellants objected to the admissibility of claims (GAO Form 1003) and similar correspondence from the Comptroller General’s office, and the adoption of them by the Master in determining the rate ultimately to be collected by Bag-gett on a given shipment. Obviously they were admissible to prove the fact of the tenacious controversion of the original billing and the fact that in all likelihood only litigation — if successful— would change the governmental view. . Questions would inevitably arise: who, carrier or driver-owners, is to finance the litigation? Or finance continued operations as the alleged overpayments were asserted as credits by the shipping agencies against current invoices under fear of accounts being disallowed by the General Accounting Office, 31 U.S.C.A. §§ 65 to 134, or by the General Accounting Office itself under 49 U.S.C.A. § 66, “ * * the right is reserved * * * to deduct the amount of any overpayment to any such carrier from any amount subsequently found to be due such carrier”? Or finance extensive hearings before the Interstate Commerce Commission to determine the “just and reasonable” rate which ought to have been charged, United States v. Garner, D.C.E.D.N.C., 134. F.Supp. 16? . For example, in numerous eases the amount billed the Government was much larger than the transportation revenue shown on the owner-lessor’s weekly settlement sheet. Baggett justified this primarily on the ground that the amount shown on the settlement sheets would ultimately be the amount the Government would recognize as due. The Master, of course, in the 285 shipments ruled precisely on each of such matters. The Master stated: “The conclusion reached from all of the evidence in this case is that there were many mistakes, errors and differences of opinion as to rates, but that there was no evidence of fraud or misrepresentation on the part of defendant toward the plaintiffs.” The district court stated that appellants were, “Stirred to action by discovery of a pattern of discrepancies uniformly in favor of defendant, between the revenue reported by defendant on each plaintiff’s statements of earnings and the charges shown on bills of lading and other records supporting vouchers submitted to and paid by the Government * * *_» . 1 C.J.S., Accounting, § 39, pp. 678, 679; Wootton Land & Fuel Co. v. Ownbey, 8 Cir., 265 F. 91, 99, “When the defendant is an accounting party, and stands as one occupying a fiduciary relation toward the plaintiff, because of money or property intrusted to him, the burden is upon him to show that he has performed his trust and the manner of its performance. He owes this duty because of the confidential relation he bears to his principal, and because he is presumed to know how he has performed his duty. 1 Mechem on Agency (2d Ed.) § 1844; 1 Corp.Jur. 643 ; 3 Gr. on Ev. § 253; 1 Story, Eq.Jur. (14th Ed.) § 625; Marvin v. Brooks, 94 N.Y. 71, 75; Little v. Phipps, 208 Mass. 331, 335, 94 N.E. 260, 34 L.R.A.,N.S., 1046. He must therefore prove any allowances or credits that he may claim to have made on behalf of his principal. In making proof of credits claimed by him, he should present an itemized statement, showing the details of expenditures, with the vouchers, receipts, and memoranda supporting his claim.” Cafritz v. Corporation Audit Co., D.C.D.C., 60 F.Supp. 627, 631, “It is well established that when the defendant is an accounting party, and stands as one occupying a fiduciary relation toward the plaintiff, because of money or property intrusted to him, the burden is upon him to show that he has performed his trust and the manner of its performance. He owes this duty because of the confidential relation he bears to his principal, and because he is presumed to know how he has performed his duty. Wootton Land & Fuel Co. v. Ownbey, 8 Cir., 265 F. 91. The burden of proof is on the accountant after he has admitted the relation and the receipt of a certain sum, to prove that he had disposed properly of the amount for which he is accountable, and to show what that amount is. Pappathanos v. Coakley, 263 Mass. 401, 161 N.E. 804.” Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant? A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities B. private attorney or law firm C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations D. school - for profit private educational enterprise (including business and trade schools) E. housing, car, or durable goods rental or lease F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc. G. information processing H. consulting I. security and/or maintenance service J. other service (including accounting) K. other (including a business pension fund) L. unclear Answer:
sc_lcdisposition	C	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. GEORGIA, et al., Petitioners v. PUBLIC.RESOURCE.ORG, INC. No. 18-1150 Supreme Court of the United States. Argued December 2, 2019 Decided April 27, 2020 Anthony B. Askew, Lisa C. Pavento, Warren J. Thomas, Meunier Carlin & Curfman LLC, Atlanta, GA, Daniel R. Ortiz, University of Virginia School of Law, Supreme Court, Litigation Clinic, Charlottesville, VA, Jeremy C. Marwell, Joshua S. Johnson, Matthew X. Etchemendy, Vinson & Elkins LLP, Washington, DC, John P. Elwood, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Petitioners. Elizabeth H. Rader, Calliope Legal, Washington, DC, Eric F. Citron, Thomas C. Goldstein, Erica Oleszczuk Evans, Goldstein & Russell, P.C., Bethesda, MD, for Respondent. Chief Justice ROBERTS delivered the opinion of the Court. The Copyright Act grants potent, decades-long monopoly protection for "original works of authorship." 17 U.S.C. § 102(a). The question in this case is whether that protection extends to the annotations contained in Georgia's official annotated code. We hold that it does not. Over a century ago, we recognized a limitation on copyright protection for certain government work product, rooted in the Copyright Act's "authorship" requirement. Under what has been dubbed the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of-and therefore cannot copyright-the works they create in the course of their official duties. We have previously applied that doctrine to hold that non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to make and interpret the law. See Banks v. Manchester , 128 U.S. 244, 9 S.Ct. 36, 32 L.Ed. 425 (1888). We now recognize that the same logic applies to non-binding, explanatory legal materials created by a legislative body vested with the authority to make law. Because Georgia's annotations are authored by an arm of the legislature in the course of its legislative duties, the government edicts doctrine puts them outside the reach of copyright protection. I A The State of Georgia has one official code-the "Official Code of Georgia Annotated," or OCGA. The first page of each volume of the OCGA boasts the State's official seal and announces to readers that it is "Published Under Authority of the State." The OCGA includes the text of every Georgia statute currently in force, as well as various non-binding supplementary materials. At issue in this case is a set of annotations that appear beneath each statutory provision. The annotations generally include summaries of judicial decisions applying a given provision, summaries of any pertinent opinions of the state attorney general, and a list of related law review articles and similar reference materials. In addition, the annotations often include editor's notes that provide information about the origins of the statutory text, such as whether it derives from a particular judicial decision or resembles an older provision that has been construed by Georgia courts. See, e.g. , OCGA §§ 51-1-1, 53-4-2 (2019). The OCGA is assembled by a state entity called the Code Revision Commission. In 1977, the Georgia Legislature established the Commission to recodify Georgia law for the first time in decades. The Commission was (and remains) tasked with consolidating disparate bills into a single Code for reenactment by the legislature and contracting with a third party to produce the annotations. A majority of the Commission's 15 members must be members of the Georgia Senate or House of Representatives. The Commission receives funding through appropriations "provided for the legislative branch of state government." OCGA § 28-9-2(c) (2018). And it is staffed by the Office of Legislative Counsel, which is obligated by statute to provide services "for the legislative branch of government." §§ 28-4-3(c)(4), 28-9-4. Under the Georgia Constitution, the Commission's role in compiling the statutory text and accompanying annotations falls "within the sphere of legislative authority." Harrison Co. v. Code Revision Comm'n , 244 Ga. 325, 330, 260 S.E.2d 30, 34 (1979). Each year, the Commission submits its proposed statutory text and accompanying annotations to the legislature for approval. The legislature then votes to do three things: (1) "enact[ ]" the "statutory portion of the codification of Georgia laws"; (2) "merge[ ]" the statutory portion "with [the] annotations"; and (3) "publish[ ]" the final merged product "by authority of the state" as "the 'Official Code of Georgia Annotated.' " OCGA § 1-1-1 (2019); see Code Revision Comm'n v. Public.Resource.Org, Inc. , 906 F.3d 1229, 1245, 1255 (CA11 2018) ; Tr. of Oral Arg. 8. The annotations in the current OCGA were prepared in the first instance by Matthew Bender & Co., Inc., a division of the LexisNexis Group, pursuant to a work-for-hire agreement with the Commission. The agreement between Lexis and the Commission states that any copyright in the OCGA vests exclusively in "the State of Georgia, acting through the Commission." App. 567. Lexis and its army of researchers perform the lion's share of the work in drafting the annotations, but the Commission supervises that work and specifies what the annotations must include in exacting detail. See 906 F.3d at 1243-1244 ; App. 269-278, 286-427 (Commission specifications). Under the agreement, Lexis enjoys the exclusive right to publish, distribute, and sell the OCGA. In exchange, Lexis has agreed to limit the price it may charge for the OCGA and to make an unannotated version of the statutory text available to the public online for free. A hard copy of the complete OCGA currently retails for $412.00. B Public.Resource.Org (PRO) is a nonprofit organization that aims to facilitate public access to government records and legal materials. Without permission, PRO posted a digital version of the OCGA on various websites, where it could be downloaded by the public without charge. PRO also distributed copies of the OCGA to various organizations and Georgia officials. In response, the Commission sent PRO several cease-and-desist letters asserting that PRO's actions constituted unlawful copyright infringement. When PRO refused to halt its distribution activities, the Commission sued PRO on behalf of the Georgia Legislature and the State of Georgia for copyright infringement. The Commission limited its assertion of copyright to the annotations described above; it did not claim copyright in the statutory text or numbering. PRO counterclaimed, seeking a declaratory judgment that the entire OCGA, including the annotations, fell in the public domain. The District Court sided with the Commission. The Court acknowledged that the annotations in the OCGA presented "an unusual case because most official codes are not annotated and most annotated codes are not official." Code Revision Comm'n v. Public.Resource.Org, Inc. , 244 F.Supp.3d 1350, 1356 (ND Ga. 2017). But, ultimately, the Court concluded that the annotations were eligible for copyright protection because they were "not enacted into law" and lacked "the force of law." Ibid. In light of that conclusion, the Court granted partial summary judgment to the Commission and entered a permanent injunction requiring PRO to cease its distribution activities and to remove the digital copies of the OCGA from the internet. The Eleventh Circuit reversed. 906 F.3d 1229. The Court began by reviewing the three 19th-century cases in which we articulated the government edicts doctrine. See Wheaton v. Peters , 8 Pet. 591, 8 L.Ed. 1055 (1834) ; Banks v. Manchester , 128 U.S. 244, 9 S.Ct. 36, 32 L.Ed. 425 (1888) ; Callaghan v. Myers , 128 U.S. 617, 9 S.Ct. 177, 32 L.Ed. 547 (1888). The Court understood those cases to establish a "rule" based on an interpretation of the statutory term "author" that "works created by courts in the performance of their official duties did not belong to the judges" but instead fell "in the public domain." 906 F.3d at 1239. In the Court's view, that rule "derive[s] from first principles about the nature of law in our democracy." Ibid. In a democracy, the Court reasoned, "the People" are "the constructive authors" of the law, and judges and legislators are merely "draftsmen ... exercising delegated authority." Ibid. The Court therefore deemed the "ultimate inquiry" to be whether a work is "attributable to the constructive authorship of the People." Id. , at 1242. The Court identified three factors to guide that inquiry: "the identity of the public official who created the work; the nature of the work; and the process by which the work was produced." Id. , at 1254. The Court found that each of those factors cut in favor of treating the OCGA annotations as government edicts authored by the People. It therefore rejected the Commission's assertion of copyright, vacated the injunction against PRO, and directed that judgment be entered for PRO. We granted certiorari. 588 U.S. ----, 139 S.Ct. 2746, 204 L.Ed.2d 1130 (2019). II We hold that the annotations in Georgia's Official Code are ineligible for copyright protection, though for reasons distinct from those relied on by the Court of Appeals. A careful examination of our government edicts precedents reveals a straightforward rule based on the identity of the author. Under the government edicts doctrine, judges-and, we now confirm, legislators-may not be considered the "authors" of the works they produce in the course of their official duties as judges and legislators. That rule applies regardless of whether a given material carries the force of law. And it applies to the annotations here because they are authored by an arm of the legislature in the course of its official duties. A We begin with precedent. The government edicts doctrine traces back to a trio of cases decided in the 19th century. In this Court's first copyright case, Wheaton v. Peters , 8 Pet. 591, 8 L.Ed. 1055 (1834), the Court's third Reporter of Decisions, Wheaton, sued the fourth, Peters, unsuccessfully asserting a copyright interest in the Justices' opinions. Id. , at 617 (argument). In Wheaton's view, the opinions "must have belonged to some one" because "they were new, original," and much more "elaborate" than law or custom required. Id. , at 615. Wheaton argued that the Justices were the authors and had assigned their ownership interests to him through a tacit "gift." Id. , at 614. The Court unanimously rejected that argument, concluding that "no reporter has or can have any copyright in the written opinions delivered by this court" and that "the judges thereof cannot confer on any reporter any such right." Id. , at 668 (opinion). That conclusion apparently seemed too obvious to adorn with further explanation, but the Court provided one a half century later in Banks v. Manchester , 128 U.S. 244, 9 S.Ct. 36, 32 L.Ed. 425 (1888). That case concerned whether Wheaton's state-court counterpart, the official reporter of the Ohio Supreme Court, held a copyright in the judges' opinions and several non-binding explanatory materials prepared by the judges. Id. , at 249-251, 9 S.Ct. 36. The Court concluded that he did not, explaining that "the judge who, in his judicial capacity, prepares the opinion or decision, the statement of the case and the syllabus or head note" cannot "be regarded as their author or their proprietor, in the sense of [the Copyright Act]." Id. , at 253, 9 S.Ct. 36. Pursuant to "a judicial consensus " dating back to Wheaton , judges could not assert copyright in "whatever work they perform in their capacity as judges." Banks , 128 U.S at 253, 9 S.Ct. 36 (emphasis in original). Rather, "[t]he whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all." Ibid. (citing Nash v. Lathrop , 142 Mass. 29, 6 N.E. 559 (1886) ). In a companion case decided later that Term, Callaghan v. Myers , 128 U.S. 617, 9 S.Ct. 177, 32 L.Ed. 547 (1888), the Court identified an important limiting principle. As in Wheaton and Banks , the Court rejected the claim that an official reporter held a copyright interest in the judges' opinions. But, resolving an issue not addressed in Wheaton and Banks , the Court upheld the reporter's copyright interest in several explanatory materials that the reporter had created himself: headnotes, syllabi, tables of contents, and the like. Callaghan , 128 U.S. at 645, 647, 9 S.Ct. 177. Although these works mirrored the judge-made materials rejected in Banks , they came from an author who had no authority to speak with the force of law. Because the reporter was not a judge, he was free to "obtain[ ] a copyright" for the materials that were "the result of his [own] intellectual labor." 128 U.S. at 647, 9 S.Ct. 177. These cases establish a straightforward rule: Because judges are vested with the authority to make and interpret the law, they cannot be the "author" of the works they prepare "in the discharge of their judicial duties." Banks , 128 U.S. at 253, 9 S.Ct. 36. This rule applies both to binding works (such as opinions) and to non-binding works (such as headnotes and syllabi). Ibid. It does not apply, however, to works created by government officials (or private parties) who lack the authority to make or interpret the law, such as court reporters. Compare ibid. with Callaghan , 128 U.S. at 647, 9 S.Ct. 177. The animating principle behind this rule is that no one can own the law. "Every citizen is presumed to know the law," and "it needs no argument to show ... that all should have free access" to its contents. Nash , 142 Mass. at 35, 6 N.E. at 560 (cited by Banks , 128 U.S. at 253-254, 9 S.Ct. 36 ). Our cases give effect to that principle in the copyright context through construction of the statutory term "author." Id. , at 253, 9 S.Ct. 36. Rather than attempting to catalog the materials that constitute "the law," the doctrine bars the officials responsible for creating the law from being considered the "author[s]" of "whatever work they perform in their capacity" as lawmakers. Ibid. (emphasis added). Because these officials are generally empowered to make and interpret law, their "whole work" is deemed part of the "authentic exposition and interpretation of the law" and must be "free for publication to all." Ibid. If judges, acting as judges, cannot be "authors" because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either. Courts have thus long understood the government edicts doctrine to apply to legislative materials. See, e.g. , Nash , 142 Mass. at 35, 6 N.E. at 560 (judicial opinions and statutes stand "on substantially the same footing" for purposes of the government edicts doctrine); Howell v. Miller , 91 F. 129, 130-131, 137-138 (CA6 1898) (Harlan, J., Circuit Justice, joined by then-Circuit Judge Taft) (analyzing statutes and supplementary materials under Banks and Callaghan and concluding that the materials were copyrightable because they were prepared by a private compiler). Moreover, just as the doctrine applies to "whatever work [judges] perform in their capacity as judges," Banks , 128 U.S., at 253, 9 S.Ct. 36, it applies to whatever work legislators perform in their capacity as legislators. That of course includes final legislation, but it also includes explanatory and procedural materials legislators create in the discharge of their legislative duties. In the same way that judges cannot be the authors of their headnotes and syllabi, legislators cannot be the authors of (for example) their floor statements, committee reports, and proposed bills. These materials are part of the "whole work done by [legislators]," so they must be "free for publication to all." Ibid. Under our precedents, therefore, copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties. B 1 Applying that framework, Georgia's annotations are not copyrightable. The first step is to examine whether their purported author qualifies as a legislator. As we have explained, the annotations were prepared in the first instance by a private company (Lexis) pursuant to a work-for-hire agreement with Georgia's Code Revision Commission. The Copyright Act therefore deems the Commission the sole "author" of the work. 17 U.S.C. § 201(b). Although Lexis expends considerable effort preparing the annotations, for purposes of copyright that labor redounds to the Commission as the statutory author. Georgia agrees that the author is the Commission. Brief for Petitioners 25. The Commission is not identical to the Georgia Legislature, but functions as an arm of it for the purpose of producing the annotations. The Commission is created by the legislature, for the legislature, and consists largely of legislators. The Commission receives funding and staff designated by law for the legislative branch. Significantly, the annotations the Commission creates are approved by the legislature before being "merged" with the statutory text and published in the official code alongside that text at the legislature's direction. OCGA § 1-1-1 ; see 906 F.3d at 1245, 1255 ; Tr. of Oral Arg. 8. If there were any doubt about the link between the Commission and the legislature, the Georgia Supreme Court has dispelled it by holding that, under the Georgia Constitution, "the work of the Commission; i.e. , selecting a publisher and contracting for and supervising the codification of the laws enacted by the General Assembly, including court interpretations thereof, is within the sphere of legislative authority ." Harrison Co. , 244 Ga. at 330, 260 S.E.2d at 34 (emphasis added). That holding is not limited to the Commission's role in codifying the statutory text. The Commission's "legislative authority" specifically includes its "codification of ... court interpretations" of the State's laws. Ibid. Thus, as a matter of state law, the Commission wields the legislature's authority when it works with Lexis to produce the annotations. All of this shows that the Commission serves as an extension of the Georgia Legislature in preparing and publishing the annotations. And it helps explain why the Commission brought this suit asserting copyright in the annotations "on behalf of and for the benefit of "the Georgia Legislature and the State of Georgia. App. 20. 2 The second step is to determine whether the Commission creates the annotations in the "discharge" of its legislative "duties." Banks , 128 U.S. at 253, 9 S.Ct. 36. It does. Although the annotations are not enacted into law through bicameralism and presentment, the Commission's preparation of the annotations is under Georgia law an act of "legislative authority," Harrison Co. , 244 Ga. at 330, 260 S.E.2d at 34, and the annotations provide commentary and resources that the legislature has deemed relevant to understanding its laws. Georgia and Justice GINSBURG emphasize that the annotations do not purport to provide authoritative explanations of the law and largely summarize other materials, such as judicial decisions and law review articles. See post , at 1523 - 1524 (dissenting opinion). But that does not take them outside the exercise of legislative duty by the Commission and legislature. Just as we have held that the "statement of the case and the syllabus or head note" prepared by judges fall within the "work they perform in their capacity as judges," Banks , 128 U.S. at 253, 9 S.Ct. 36, so too annotations published by legislators alongside the statutory text fall within the work legislators perform in their capacity as legislators. In light of the Commission's role as an adjunct to the legislature and the fact that the Commission authors the annotations in the course of its legislative responsibilities, the annotations in Georgia's Official Code fall within the government edicts doctrine and are not copyrightable. III Georgia resists this conclusion on several grounds. At the outset, Georgia advances two arguments for why, in its view, excluding the OCGA annotations from copyright protection conflicts with the text of the Copyright Act. Both are unavailing. First, Georgia notes that § 101 of the Act specifically lists "annotations" among the kinds of works eligible for copyright protection. But that provision refers only to "annotations ... which ... represent an original work of authorship ." 17 U.S.C. § 101 (emphasis added). The whole point of the government edicts doctrine is that judges and legislators cannot serve as authors when they produce works in their official capacity. While the reference to "annotations" in § 101 may help explain why supplemental, explanatory materials are copyrightable when prepared by a private party, or a non-lawmaking official like the reporter in Callaghan , it does not speak to whether those same materials are copyrightable when prepared by a judge or a legislator. In the same way that judicial materials are ineligible for protection even though they plainly qualify as "[l]iterary works ... expressed in words," ibid. , legislative materials are ineligible for protection even if they happen to fit the description of otherwise copyrightable "annotations." Second, Georgia draws a negative inference from the fact that the Act excludes from copyright protection "work[s] prepared by an officer or employee of the United States Government as part of that person's official duties" and does not establish a similar rule for the States. § 101 ; see also § 105. But the bar on copyright protection for federal works sweeps much more broadly than the government edicts doctrine does. That bar applies to works created by all federal "officer[s] or employee[s]," without regard for the nature of their position or scope of their authority. Whatever policy reasons might justify the Federal Government's decision to forfeit copyright protection for its own proprietary works, that federal rule does not suggest an intent to displace the much narrower government edicts doctrine with respect to the States. That doctrine does not apply to non-lawmaking officials, leaving States free to assert copyright in the vast majority of expressive works they produce, such as those created by their universities, libraries, tourism offices, and so on. More generally, Georgia suggests that we should resist applying our government edicts precedents to the OCGA annotations because our 19th-century forebears interpreted the statutory term author by reference to "public policy"-an approach that Georgia believes is incongruous with the "modern era" of statutory interpretation. Brief for Petitioners 21 (internal quotation marks omitted). But we are particularly reluctant to disrupt precedents interpreting language that Congress has since reenacted. As we explained last Term in Helsinn Healthcare S. A. v. Teva Pharmaceuticals USA , Inc. , 586 U.S. ----, 139 S.Ct. 628, 202 L.Ed.2d 551 (2019), when Congress "adopt[s] the language used in [an] earlier act," we presume that Congress "adopted also the construction given by this Court to such language, and made it a part of the enactment." Id., at ----, 139 S.Ct., at 634 (quoting Shapiro v. United States , 335 U.S. 1, 16, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948) ). A century of cases have rooted the government edicts doctrine in the word "author," and Congress has repeatedly reused that term without abrogating the doctrine. The term now carries this settled meaning, and "critics of our ruling can take their objections across the street, [where] Congress can correct any mistake it sees." Kimble v. Marvel Entertainment, LLC , 576 U.S. 446, 456, 135 S.Ct. 2401, 192 L.Ed.2d 463 (2015). Moving on from the text, Georgia invokes what it views as the official position of the Copyright Office, as reflected in the Compendium of U.S. Copyright Office Practices (Compendium). But, as Georgia concedes, the Compendium is a non-binding administrative manual that at most merits deference under Skidmore v. Swift & Co. , 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). That means we must follow it only to the extent it has the "power to persuade." Id., at 140, 65 S.Ct. 161. Because our precedents answer the question before us, we find any competing guidance in the Compendium unpersuasive. In any event, the Compendium is largely consistent with our decision. Drawing on Banks , it states that, "[a]s a matter of longstanding public policy, the U.S. Copyright Office will not register a government edict that has been issued by any state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials ." Compendium § 313.6(C)(2) (rev. 3d ed. 2017) (emphasis added). And, under Banks , what counts as a "similar" material depends on what kind of officer created the material (i.e. , a judge) and whether the officer created it in the course of official (i.e. , judicial) duties. See Compendium § 313.6(C)(2) (quoting Banks , 128 U.S. at 253, 9 S.Ct. 36, for the proposition that copyright cannot vest "in the products of the labor done by judicial officers in the discharge of their judicial duties"). The Compendium goes on to observe that "the Office may register annotations that summarize or comment upon legal materials ... unless the annotations themselves have the force of law." Compendium § 313.6(C)(2). But that broad statement-true of annotations created by officials such as court reporters that lack the authority to make or interpret the law-does not engage with the critical issue of annotations created by judges or legislators in their official capacities. Because the Compendium does not address that question and otherwise echoes our government edicts precedents, it is of little relevance here. Georgia also appeals to the overall purpose of the Copyright Act to promote the creation and dissemination of creative works. Georgia submits that, without copyright protection, Georgia and many other States will be unable to induce private parties like Lexis to assist in preparing affordable annotated codes for widespread distribution. That appeal to copyright policy, however, is addressed to the wrong forum. As Georgia acknowledges, "[I]t is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives." Eldred v. Ashcroft , 537 U.S. 186, 212, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003). And that principle requires adherence to precedent when, as here, we have construed the statutory text and "tossed [the ball] into Congress's court, for acceptance or not as that branch elects." Kimble , 576 U.S. at 456, 135 S.Ct. 2401. Turning to our government edicts precedents, Georgia insists that they can and should be read to focus exclusively on whether a particular work has "the force of law." Brief for Petitioners 32 (capitalization deleted). Justice THOMAS appears to endorse the same view. See post , at 1515. But that framing has multiple flaws. Most obviously, it cannot be squared with the reasoning or results of our cases-especially Banks . Banks , following Wheaton and the "judicial consensus" it inspired, denied copyright protection to judicial opinions without excepting concurrences and dissents that carry no legal force. 128 U.S. at 253, 9 S.Ct. 36 (emphasis deleted). As every judge learns the hard way, "comments in [a] dissenting opinion" about legal principles and precedents "are just that: comments in a dissenting opinion." Railroad Retirement Bd. v. Fritz , 449 U.S. 166, 177, n. 10, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). Yet such comments are covered by the government edicts doctrine because they come from an official with authority to make and interpret the law. Indeed, Banks went even further and withheld copyright protection from headnotes and syllabi produced by judges. 128 U.S. at 253, 9 S.Ct. 36. Surely these supplementary materials do not have the force of law, yet they are covered by the doctrine. The simplest explanation is the one Banks provided: These non-binding works are not copyrightable because of who creates them-judges acting in their judicial capacity. See ibid. The same goes for non-binding legislative materials produced by legislative bodies acting in a legislative capacity. There is a broad array of such works ranging from floor statements to proposed bills to committee reports. Under the logic of Georgia's "force of law" test, States would own such materials and could charge the public for access to them. Furthermore, despite Georgia's and Justice THOMAS's purported concern for the text of the Copyright Act, their conception of the government edicts doctrine has less of a textual footing than the traditional formulation. The textual basis for the doctrine is the Act's "authorship" requirement, which unsurprisingly focuses on-the author. Justice THOMAS urges us to dig deeper to "the root" of our government edicts precedents. Post , at 1515. But, in our view, the text is the root. The Court long ago interpreted the word "author" to exclude officials empowered to speak with the force of law, and Congress has carried that meaning forward in multiple iterations of the Copyright Act. This textual foundation explains why the doctrine distinguishes between some authors (who are empowered to speak with the force of law) and others (who are not). Compare Callaghan , 128 U.S. at 647, 9 S.Ct. 177, with Banks , 128 U.S. at 253, 9 S.Ct. 36. But the Act's reference to "authorship" provides no basis for Georgia's rule distinguishing between different categories of content with different effects. Georgia minimizes the OCGA annotations as non-binding and non-authoritative, but that description undersells their practical significance. Imagine a Georgia citizen interested in learning his legal rights and duties. If he reads the economy-class version of the Georgia Code available online, he will see laws requiring political candidates to pay hefty qualification fees (with no indigency exception), criminalizing broad categories of consensual sexual conduct, and exempting certain key evidence in criminal trials from standard evidentiary limitations-with no hint that important aspects of those laws have been held unconstitutional by the Georgia Supreme Court. See OCGA §§ 21-2-131, 16-6-2, 16-6-18, 16-15-9 (available at www.legis.ga.gov). Meanwhile, first-class readers with access to the annotations will be assured that these laws are, in crucial respects, unenforceable relics that the legislature has not bothered to narrow or repeal. See §§ 21-2-131, 16-6-2, 16-6-18, 16-15-9 (available at https://store.lexisnexis.com/products/official - code - of - georgia - annotated - skuSKU6647 for $412.00). If everything short of statutes and opinions were copyrightable, then States would be free to offer a whole range of premium legal works for those who can afford the extra benefit. A State could monetize its entire suite of legislative history. With today's digital tools, States might even launch a subscription or pay-per-law service. There is no need to assume inventive or nefarious behavior for these concerns to become a reality. Unlike other forms of intellectual property, copyright protection is both instant and automatic. It vests as soon as a work is captured in a tangible form, triggering a panoply of exclusive rights that can last over a century. 17 U.S.C. §§ 102, 106, 302. If Georgia were correct, then unless a State took the affirmative step of transferring its copyrights to the public domain, all of its judges' and legislators' non-binding legal works would be copyrighted. And citizens, attorneys, nonprofits, and private research companies would have to cease all copying, distribution, and display of those works or risk severe and potentially criminal penalties. §§ 501-506. Some affected parties might be willing to roll the dice with a potential fair use defense. But that defense, designed to accommodate First Amendment concerns, is notoriously fact sensitive and often cannot be resolved without a trial. Cf. Harper & Row, Publishers, Inc. v. Nation Enterprises , 471 U.S. 539, 552, 560-561, 10 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_applfrom	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). Robert H. HERNDON, Plaintiff-Appellant, v. The CITY OF MASSILLON et al., Defendants-Appellees. No. 79-3458. United States Court of Appeals, Sixth Circuit. Argued Dec. 19, 1980. Decided Jan. 26, 1981. Rehearing Denied Feb. 27, 1981. Robert H. Herndon, pro se. Michael F. Vaccaro, Massillon, Ohio, Gene Barnhart, Randolph L. Snow, Black, McCuskey, Sauers & Arbaugh, Dale T. Evans, Asst. Prosecuting Atty., Canton, Ohio, Lawrence J. Whitney, Akron, Ohio, Sanders J. Mestel, Canton, Ohio, for different defendants-appellees. Before JONES, Circuit Judge, PECK, Senior Circuit Judge, and NIXON , District Judge. Honorable John T. Nixon, United States District Court for the Middle District of Tennessee, sitting by designation. PER CURIAM. Plaintiff Robert H. Herndon brought an action under 42 U.S.C. § 1983, alleging that defendants, acting under color of state law, knowingly submitted false information to the Common Pleas Court of Stark County, Ohio, for the purpose of obtaining a search warrant of Herndon’s place of business. After a verdict was directed in favor of two of the defendants, the case against defendant Bruce A. Wilson was submitted to a jury. During the course of deliberations, the jury asked the court to repeat its instructions to the jury. The court reporter was apparently unable to reproduce the original instructions, at least at that time. Therefore, with the consent of the parties, or at least without objection of either party, the district judge gave the jury new instructions. Unknown to both the court and the parties, this second set of instructions was not recorded by the court reporter. Herndon filed a notice of appeal with this Court, but did not avail himself of Fed.R. App.Pro. 10(c), whereby he might have prepared and submitted a statement of the unrecorded proceedings to the district court for settlement and inclusion in the record on appeal. The district court, noting that the plaintiff had failed to act under Rule 10(c), prepared a statement of the charges given to the jury the second time, based on the judge’s recollection. This statement was then certified to this Court. On appeal, Herndon makes two assignments of error, each directed at the state of the record concerning the second jury instruction. He alleges no specific error in the instructions as they were given to the jury, either initially or upon the jury’s request for a repetition of the instructions. Herndon’s first argument is that his right to appeal is made illusory where there is no record sufficient to permit an examination for error. He concludes that the absence of a record so insulates errors that a new trial is required to insure the proper administration of justice. In Illinois Central Railroad Co. v. Riley, 392 F.2d 787 (6th Cir. 1968), this Court addressed the question of the proper relief where a trial court’s jury instructions were unrecorded. In that case, plaintiffs failed to submit a statement reconstructing the unrecorded instructions, as they were permitted to do under Fed.R.Civ.Pro. 75(c), the predecessor to Fed.R.App.Pro. 10(c). We affirmed the judgment against those plaintiffs, holding that their failure to avail themselves of the procedure designed to reconstruct unrecorded proceedings left them with no objection based on the missing record. This general proposition has been affirmed by other Circuit Courts. E. g., United States v. Mills, 597 F.2d 693 (9th Cir. 1979); Stout v. Jefferson County Bd. of Educ., 489 F.2d 97 (5th Cir. 1974); Hydramotive Manufacturing Corp. v. SEC, 355 F.2d 179 (10th Cir. 1966); Murphy v. St. Paul Fire & Marine Insurance Co., 314 F.2d 30 (5th Cir.), cert. denied, 375 U.S. 906, 84 S.Ct. 197, 11 L.Ed.2d 146 (1963). The clear lesson of these cases is that a party may not seek a new trial simply because matters occurring in the district court are not reflected in the transcript. Rather, that party must at least attempt to cure the defect by reconstructing the record as provided by Fed.R.App.Pro. 10(c). In certain cases this effort may unavoidably fall short of the precision necessary for a record amenable to review, and a new trial may be necessary. E. g., United States v. Knox, 456 F.2d 1024 (8th Cir. 1972). However, a new trial is not appropriate where the lack of a record is the only error charged and where the appellant made no effort to reconstruct the missing record nor to give any cause for that failing. Accordingly, Herndon’s first assignment of error must fail. Herndon’s second argument is that it was error for the district court to certify its version of the unrecorded proceedings to this Court. Herndon argues that this version of the instructions serves only to further prejudice his rights on appeal by substituting a carefully considered set of instructions, created expressly for review on appeal, for the instructions as they were actually given. Whether the district judge’s recollection of the unrecorded jury instructions could be properly considered on appeal in the absence of any Rule 10(c) statement of proceedings by Herndon is an issue that we need not reach. That question has no relevance to our conclusion that the fact that the jury instructions were not recorded does not in and of itself constitute reversible error. Furthermore, Herndon has not alleged any error, or indeed insufficiency of any kind, in the instructions given to the jury. Therefore, we have no occasion to consider the trial judge’s reconstruction of the second jury instruction. For the reasons set forth above, the judgment of the district court is affirmed. 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_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. John ROCKBRIDGE and Henry Zah, Individually and On Behalf of All Others Similarly Situated, Plaintiffs and Appellants, v. Anthony LINCOLN, Area Director, Bureau of Indian Affairs, et al., Defendants and Appellees. No. 25437. United States Court of Appeals, Ninth Circuit. Sept. 1, 1971. Donald Juneau (argued), Theodore R. Mitchell, Window Rock, Ariz., for appellants. George R. Hyde (argued), S. Billingsley Hill, Dept. of Justice; Shiro Kashiwa, Asst. Atty. Gen., Land & Nat. Resources Div., Washington, D. C.; Richard K. Burke, U. S. Atty., Michael Lasher, Asst. U. S. Atty., Phoenix, Ariz., for appellees. Before MERRILL and ELY, Circuit Judges, and FERGUSON, District Judge. Honorable Warren J. Ferguson, United States District Judge, Central District of California, sitting by designation. FERGUSON, District Judge: The question presented is whether a system of unregulated trading post monopolies allegedly imposed upon the Navajo Indians by governmental officials can be challenged in court. The district court held that it lacks jurisdiction. We reverse. This appeal, pursuant to 28 U.S.C. § 1291, is from a judgment dismissing appellants’ action to require the Secretary of the Interior, the Commissioner of Indian Affairs, and the Area Director of the Navajo Indian Reservation to adopt and enforce certain rules and regulations governing traders doing business on the Navajo Indian Reservation. The appellants filed their complaint as a class action on their own behalf and on behalf of all Navajo Indians residing on the reservation. Appellants claim that a duty to adopt and enforce such regulations arises out of 25 U.S.C. §§ 261 and 262. The appel-lees contend that the sections grant them such discretion within the meaning of the Administrative Procedure Act (5 U.S.C. § 701 et seq.) as to preclude litigation. These sections provide as follows: “§ 261. Power to appoint traders with Indians “The Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.” “§ 262. Persons permitted to trade with Indians “Any person desiring to trade with the Indians on any Indian reservation shall, upon establishing the fact, to the satisfaction of the Commissioner of Indian Affairs, that he is a proper person to engage in such trade, be permitted to do so under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians.” By their motion to dismiss, the appel-lees concede for the purpose of this appeal the truthfulness of the allegations set forth in the complaint. Delesdernier v. O’Rourke & Warren Company, 305 F. 2d 929 (5th Cir. 1962). In summary, these allegations are: 1. The Navajo Reservation is approximately the size of West Virginia, and is occupied by 120,000 Navajos. 2. No one is allowed to conduct business on the reservation without the approval of the Commissioner of Indian Affairs. There are now approximately 100 traders, whose total gross receipts during the past six years averaged 14.5 million dollars per year. 3. Family income for the Navajos averages $1,500 per year. The effective unemployment rate is nearly 80%. 4. The trading post is the only area outlet for groceries and supplies. It is the only local buyer for livestock, wool and other Navajo products. It has the only telephone, gasoline pump and post office and is the only local source of credit by loans, pawns and open accounts. 5. The trader dominates the relationship between the Navajos and those outside the reservation to his own economic advantage. The trader frequently acts as liaison between state welfare agencies and the Navajo applicants and withholds proceeds of welfare checks or other checks sent to them until their loans are paid. 6. The United States Railroad Retirement Board employs traders to act as special claims agents. In this capacity, the trader disperses one of the few sources of wage income on the reservation. He is able to, and often does, favor the employment of those Navajos who have credit accounts owing to him. 7. Because of the licensing procedures of the Commissioner, each trader has an effective geographical monopoly of Navajo consumers and resources in his trading area, which works to the benefit of the trader and against the Navajos. 8. It is not possible for the Navajos to trade outside the reservation because the vast majority of roadways are unpaved and in winter months and during spring and fall rains, transportation is difficult to impossible. 9. The traders have a legal monopoly, since they have a captive market and need not worry about competition. They are not subject to the controls of the free enterprise system. 10. The unregulated trading post system permits the trader to exact unduly high prices for his goods; to sell inferior products; to.charge any rate of interest; and to use dishonest weights and' measures. The system permits the trader economically to manipulate the Navajo. 11. While the Commissioner leaves traders on the Navajo, Hopi and Zuni Reservations free from price regulation, he subjects traders on other Indian Reservations to price controls. 12. The Commissioner has issued a few regulations concerning relatively unimportant features of the trading post operation, such as, the issuance of pawn receipts, with no regulation of interest rates. He requires that prices be plainly marked, but places no restraint on prices, and he has provided no means whatsoever to enforce even the few regulations which have been adopted. The appellants seek orders which would (1) require the appellees to adopt adequate rules and regulations which govern traders on the reservation for the protection of the Navajos, including specification of “the kind and quantity of goods and the prices at which such goods shall be sold”; and (2) require appellees to enforce those regulations and the regulations which are now in effect. Appellants allege jurisdiction under a variety of statutes, treaties and constitutional provisions. They are 25 U.S.C. §§ 261-264; Article 1, Sec. 8, clause 3 of the Constitution; the Fifth Amendment; Treaty of 1849 between the Navajo Tribe and the United States (9 Stat. 974); Navajo Treaty of 1868 (15 Stat. 667); the Administrative Procedure Act, 5 U.S. C. § 701 et seq.; 28 U.S.C. § 1331, involving a federal question and $10,000; 28 U.S.C. § 1361, the Mandamus Statute; and 28 U.S.C. § 1651, the All Writs Statute. The district court granted the appel-lees’ motion to dismiss holding that the Administrative Procedure Act (5 U.S.C. § 701 et seq.) did not confer jurisdiction on the court. The court reasoned that 25 U.S.C. §§ 261 and 262 are purely discretionary and therefore specifically exempted from the Act. The district court further held that the Mandamus Statute (28 U.S.C. § 1361) was likewise inapplicable, and that since the appellees had not “acted” in violation of their statutory powers, the doctrine of sovereign immunity is a bar to the action. We hold that the district court has jurisdiction under the Administrative Procedure Act, and that the doctrine of sovereign immunity is not a bar to this action. Section 702 of the Administrative Procedure Act (5 U.S.C. § 702) provides that “[a] person suffering legal wrong because of agency action * * * is entitled to judicial review thereof”. Section 703 sets forth that “[t]he form of proceeding for judicial review is * * * any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction. * * * ” Section 706 (1) directs the reviewing court to “compel agency action unlawfully withheld”. The Act has been interpreted to permit the relief sought. Mollohan v. Gray, 413 F.2d 349 (9th Cir. 1969); United States v. Walker, 409 F.2d 477 (9th Cir. 1969) ; Adams v. Witmer, 271 F.2d 29 (9th Cir. 1959). Appellees contend, however, that this is a case within 5 U.S.C. § 701(a) (2) , which provides that the Act is not applicable when “agency action is committed to agency discretion by law”. Whether agency action is “committed to agency discretion” depends upon whether Congress has manifested in the statutes governing the agency action in question an intent to cut off review. See 4 Davis, Administrative Law Treatise § 28.16; Jaffe, Judicial Control of Administrative Action 374-75 (1965). A permissive statutory term, like “as he may deem just and proper”, 25 U.S.C. § 261, is not by itself to be read as a congressional command precluding judicial review. The question is whether nonreviewability can fairly be inferred from the over-all statutory scheme. Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). In order to properly determine whether inaction is “ * * * committed to [the Commissioner’s] discretion” by Sections 261 and 262, it is thus necessary first to focus upon the legal relationship between the United States and the Indians. In Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831), Chief Justice Marshall set forth that relationship. “[The Indians] are in a state of pupilage; their relationship to the United States resembles that of a ward to his guardian.” 30 U.S. at 17. In United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886), the duty of the government was defined. “From their [the Indians’] very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power.” 118 U.S. at 384, 6 S.Ct. at 1114. See also Choctaw Nation v. United States, 119 U.S. 1, 75 S.Ct. 75, 30 L.Ed. 306 (1886). In Seminole Nation v. United States, 316 U.S. 286, 62 S.Ct. 1049, 96 L.Ed. 561 (1942), the Court stated: “In carrying out its treaty obligations with the Indian tribes, the Government is something more than a mere contracting party. Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, is has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards.” 316 U.S. 296-297, 62 S.Ct. 1054. More recently, in Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965), the Court held that Congress has so broadly occupied the field of trading with Indians on reservations that no room remained for state laws imposing additional burdens on traders. The lengthy debate in Congress in 1876 which preceded the passage of Section 261 centered around two basic issues: (1) Whether the Interior Department or the War Department ought to have control over trading posts on Indian Reservations, and (2) what could be done to protect the Indians from exploitation by unethical traders. 4 Cong.Rec. (44th Cong. June 20, 1876) pp. 3906-3926. The Bureau of Indian Affairs was under the control of the War Department from 1789 to 1849, at which time it was transferred to the Interior Department. During the debates of 1876, approval was sought for an amendment, initially approved in the House, transferring the Bureau of Indian Affairs back to the War Department. A considerable portion of the debate on this suggestion centered around the abuses visited upon the Indians by traders during the period of time when the War Department previously had control. The comments of Senator Logan regarding those abuses are set forth in Appendix A. In discussing a related amendment regarding the issuance of trading licenses by the Commissioner, which was subsequently agreed to and became a part of the Bill, Congressman Magninis set forth in explicit detail the injustices which had occurred as the result of unregulated monopolies in the Indian trading post system. His statement, in part, is set forth in Appendix B. Shortly after the statements of Senator Logan and Congressman Magninis, Congressman Randall submitted the report of the conference committee to the House. It, in part, recommended the adoption of the following: “Sec. 5. And hereafter the Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper, specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.” 4 Cong.Rec. (44th Cong. August 11, 1876) p. 5477. As noted earlier, the House previously had voted to transfer the Bureau of Indian Affairs back to the War Department. Section 5 remained unchanged through the subsequent conference committees and ultimately became § 261. When viewed in light of this historical background, the language of § 261 becomes much clearer. When it states that the Commissioner is to have “sole” power to license and regulate traders, it means that he, as opposed to the War Department or some other federal administrative official, has that power. In addition to centering power in the commissioner, Congress acted to prevent the widespread abuses within the existing unregulated trading post system revealed by the debates. There can be no question but that when Congress enacted § 261 it intended that the Commissioner would “specify [ing] the kind and quantity of goods and the prices at which such goods shall be sold to the Indians”. Congress delegated to the Commissioner the task of determining the specific content of these regulations. This does not mean that the Commissioner has unbridled discretion to refuse to regulate, but rather that he shall exercise discretion in deciding what regulations to promulgate and in determining specific quantities, prices and kinds. This conclusion is not only consistent with the clear purpose of Congress, but also demanded by traditional rules of statutory construction. If Congress had intended that the Commissioner’s discretion would be unlimited, then much of the language in § 261— “specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians” — would be superfluous. It is a cardinal principle of statutory construction that whenever possible statutes are to be given such effect that no clause, sentence or word is rendered superfluous, void, contradictory or insignificant. Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Moreover, statutes passed for the benefit of dependent Indian tribes and communities are to be liberally construed in favor of the Indians, and any doubt as to the proper construction is to be resolved in the latter’s favor. Squire v. Capoeman, 351 U.S. 1, 6-7, 76 S.Ct. 611, 100 L.Ed. 883 (1956); Holt v. Commissioner of Internal Revenue, 364 F.2d 38 (8th Cir. 1966), cert. denied, 386 U.S. 931, 87 S.Ct. 952, 17 L.Ed.2d 805 (1967). Section 262 was enacted in 1903, twenty-seven years after section 261. While there is no statutory history to aid in interpreting this section, a careful reading suggests two possible interpretations. First, the provision “under such rules and regulations as the Commissioner of Indian Affairs may prescribe for the protection of said Indians”, may be read as a grant of authority to the Commissioner allowing him to promulgate rules in addition to those already required by § 261, i. e., rules unrelated to the price, quantity or kind of goods sold by the traders. Apparently the Commissioner took this view in acting to regulate the issuance of pawn tickets. Such regulation, while of doubtful propriety under § 261, is clearly authorized by § 262. A second possible interpretation of this provision is that Congress intended to limit the Commissioner’s discretion in rule making to those rules and regulations which are “for the protection of said Indians”. Thus, for instance, he could not act in the trader’s interest, but only for the protection of the Indian. These two interpretations are not in any way inconsistent with each other, and it seems likely that both were intended. However, neither is necessary for the resolution of this case in its present posture. . In sum, the legislative history does not support the contention that the regulations promised under §§ 261, 262 are wholly within the discretion of the Commissioner and thus immune from judicial review. The history demonstrates that the statutes in question were passed with a specific set of legislative objectives in mind and that the lawfulness of the Commissioner’s exercise of discretion — his decisions to regulate or not to regulate in any particular instance, as well as the particular mode of regulation chosen — is to be determined by reference to these objectives. See generally, Citizens to Preserve Overton Park, Inc. et al. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). There the Supreme Court set forth the scope of judicial review under the Administrative Procedure Act as follows: “Scrutiny of the facts does not end, however, with the determination that the Secretary has acted within the scope of his statutory authority. Section 706(2) (A) requires a finding that the actual choice made was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2) (A) (Supp. V). To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. L. Jaffe, supra, at 182. See McBee v. Bomar, 296 F.2d 235, 237 (CA 6 1961); In re Josephson, 218 F.2d 174, 182 (CA 11954); Western Addition Community Organization v. Weaver, 294 F.Supp. 433 (N.D.Calif.1968). See also Wong Wing Hang v. Immigration & Naturalization Serv., 360 F.2d 715, 719 (CA 2 1966). Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” 401 U.S. at 416, 91 S.Ct. at 823. The Administrative Procedure Act may not, however, provide a basis for review of governmental decisions if the doctrine of sovereign immunity is controlling so as to bar the suit. This court’s position on this issue and a detailed discussion of the relevant Supreme Court decisions was fully set forth in Judge Ely’s opinion in State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969). In dismissing the instant action, the district court stated that “[sjince the federal officers have not ‘acted’ in violation of their statutory powers, sovereign immunity is a bar to this suit”. This conclusion can be interpreted in two ways. First, it may be no more than a restatement of the court’s prior conclusion that the appellees were free to act or not to act in their discretion. Alternatively, it might mean that far from acting in excess of their authority, at the very worst the appellees acted well within their authority. In other words, they underacted, rather than overacted. It is traditionally said that a suit is not violative of the doctrine of sovereign immunity if (1) the officer’s powers are limited by statute and he acts in excess of that authority or ultra vires; or (2) the officer was acting unconstitutionally or pursuant to an unconstitutional grant of authority. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-691, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). However, for the purposes of sovereign immunity, this court can see no valid distinction between the public official who has a statutory duty to act and does not and the one who has a duty not to act and does. This was clearly the view of Congress in enacting the Administrative Procedure Act, since it provides that a reviewing court should “compel agency action unlawfully withheld”. 5 U.S.C. § 706(1). Of course, here, as in all other suits to compel actions on the part of federal officials, some suits must be dismissed “even though the officers were not acting pursuant to valid statutory authority, because the relief sought would work an intolerable burden on governmental functions, outweighing any consideration of private harm.” State of Washington v. Udall, supra, 417 F.2d at 1318. Appellants are not seeking money damages from the government, nor are they seeking to assert some right against it or to block a government project. The relief they seek does not in any way affect the sovereign power of the United States. The government is not asked to give up a right, to grant a concession, to dispose of property or to relinquish authority. Appellants merely seek a court order directing certain government officials to perform acts which Congress has already directed those officials to perform — the promulgation and enforcement of certain rules. In light of the legislative history and the remedy sought, it can hardly be argued that the relative equities and burdens in the present case are such that sovereign immunity ought to preclude consideration on the merits. Finally, as stated in State of Washington v. Udall, supra, “[u]nder the foregoing principles, since sovereign immunity did not require dismissal of the complaint in this ease, District Court jurisdiction also existed under the federal question and declaratory judgment statutes, 28 U.S.C. §§ 1331, 2201, and under the mandamus statute, 28 U.S.C. § 1361.” 417 F.2d at 1320. The case is reversed and remanded to the district court, with directions to assume complete jurisdiction over the controversy. In the event that after a trial on the merits the appellants are entitled to relief, the district court has jurisdiction to enter such decrees as will protect the Navajo Indians in their relationship with the traders on the reservation within the guidelines that Congress has prescribed. APPENDIX A Statement of Senator Logan: “Reference has been made to extor-tions and wrongs perpetrated upon the Indians under the present system. That there are errors which need correction I will not deny; but let us refer to some of the prices paid by the Indians for articles under the old regime. “I call the attention of the Senate to a report which I have here, and I have copied it from the papers accompanying the report of 1834, made to the Congress of the United States already referred to. I find that at Fort Leavenworth, within easy reach of the markets, guns which cost in Saint Louis $7 were sold to the Indians for $30 apiece; axes costing thirty-seven and a half cents were turned over to them for $2 apiece. A double handful of salt — for that was the way they measured it then to the Indian — costing sixty-two cents a bushel, was turned over to the Indians for $1. Five and six gallon kettles, costing twenty-five cents per pound, sold for $12 apiece by the War Department to the Indians. On the navigable waters of the Upper Missouri a yard of strouding, costing $1.80, sold for $8; a blanket costing $3 sold for $10; calico costing sixteen cents per yard sold for $1; powder costing thirty cents per pound sold for $1.50; tobacco costing from five to seven cents sold for $1; blue strouding costing eighty cents sold for $9, etc. “If any gentleman disputes this, I have right here the sworn evidence, the bills reported to a committee of Congress in 1834, showing these facts in the face of all the honesty that is attributed to the War Department. I defy any man to show me that such robbery has ever been perpetrated on Indians in this country as was perpetrated, according to this report of 1834, by the War Department on the Indians of this country. It was robbery, sir; it was not fraud; it was open, palpable robbery.” 4 Cong.Ree. (44th Cong. June 20, 1876) p. 3910. APPENDIX B Statement of Congressman Magninis: “Every one in this House and in the country has been humiliated by the exposures made of abuses in this direction during the last few years. They have been painful and humiliating to us all. We have seen injustice done to individuals and the robbery of Indians permitted, whole tracts of country turned over to the domination of speculators and reservations extended over the public lands for private benefit. I say this regardless of the persons to whom these privileges have been granted. So long as these monopolies are to be granted it is no matter to me who enjoys the benefits. My opposition is not directed against individuals, but against the system under which these abuses are possible and under which these special privileges are granted. “The history of American trade with the Indians is not a record that we can be peculiarly proud of. Fraud and avarice have nurtured passions not only between the red and white, but rival traders in time past have marshaled tribe against tribe and originated intertribal wars which have done far more to reduce the Indian to nothingness than all the encroachments and conflicts of the whites. “When our non-intercourse law was adopted, it was intended not to rob but to protect the Indians. It was never intended to be a cover for fraud, nor designed to set up monopolies for the enrichment of traders against the interests of the Indians; but under its provisions, during the subsequent administrations of the Department, monopolies did grow up and strengthen themselves until they became the rule of Indian trade. “In 1865 an effort was made, originated, I believe, by the gentleman from Iowa, [Mr. Kasson,] to cure these abuses, and an amendment was made to an appropriation bill, which is now the second section of the law in the Revised Statutes, which provided that thereafter all loyal citizens who were of good, moral character should be able to obtain upon application, without discrimination in favor of persons, license to trade with the Indians. That law has been evaded in a way which I will explain, and which evasion my amendment is intended to prevent in future. And certainly we ought to try in every way to prevent monopoly of trade on these Indian reservations. I submit that when an Indian is an industrious hunter, and by his industry in the chase and skill in woodcraft and trapping he secures a large quantity of robes, furs, and peltries, he should be allowed to sell them where he can get the most for the product of his toil, and also he should be allowed to purchase where he can get the most for his money. “What would be thought if the Government were to establish such a system of trade in all our villages and give to one or more traders the right to establish the prices at which goods should be sold and the rates which the working-man should receive for the product of his labor ? How long would the people of this country stand it? Why should not the Indians have the benefit of that competition which everywhere is the best regulator of prices ? “And graver evils have resulted from this system. Under its cloak the corrupt rings have been formed, and the chief abuses of the Indian service have occurred behind its convenient cover. It has enabled the corrupt agent to keep every one off the reservation except his confidants and accomplices; and thus under an almost impenetrable cover, and beyond the reach of detection, much of that unholy work has been done which has brought such odium upon the Indian service. It is to this system I object, and the amendment is intended to break up.” 4 Cong. Rec. (44th Cong. June 6,1876) p. 3639. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
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. ALASKA v. UNITED STATES No. 128, Orig. Argued January 10, 2005 Decided June 6, 2005 Jonathan S. Franklin argued the cause for plaintiff. With him on the brief were Gregg D. Renkes, Attorney General of Alaska, Joanne M. Grace and Laura C. Bottger, Assistant Attorneys General, and G. Thomas Koester. Jeffrey P. Minear argued the cause for the United States. With him on the briefs were Acting Solicitor General Clement, Assistant Attorney General Sansonetti, Deputy Solicitor General Kneedler, Michael W Reed, and Bruce M. Landon. Louis R. Cohen filed a brief for the National Parks Conservation Association as amicus curiae. Justice Kennedy delivered the opinion of the Court. The State of Alaska has invoked our original jurisdiction to resolve its dispute with the United States over title to certain submerged lands underlying waters located in southeast Alaska. Alaska initiated the action by filing a complaint with leave of the Court. 530 U. S. 1228 (2000). We appointed Professor Gregory E. Maggs to act as Special Master in this matter. 531 U. S. 941 (2000). The Special Master gave thorough consideration to the written and oral submissions of the parties. In a detailed report he now recommends the grant of summary judgment to the United States with respect to all the submerged lands in dispute. Report of Special Master 1 (hereinafter Report or Special Master’s Report). We set the case for oral argument on Alaska’s exceptions to the Special Master’s Report. 543 U. S. 953 (2004). For the reasons we discuss, Alaska’s exceptions are overruled. I We begin by reviewing the general principles elaborated in the resolution of similar submerged lands disputes in our earlier cases. States enjoy a presumption of title to submerged lands beneath inland navigable waters within their boundaries and beneath territorial waters within three nautical miles of their coasts. This presumption flows from two sources. Under the established rule known as the equal-footing doctrine, new States enter the Union “on an ‘equal footing’ with the original 13 Colonies and succeed to the United States’ title to the beds of navigable waters within their boundaries.” United States v. Alaska, 521 U. S. 1, 5 (1997) (Alaska (Arctic Coast)). Under the Submerged Lands Act (SLA), 67 Stat. 29, 43 U. S. C. § 1301 et seq., which applies to Alaska through an express provision of the Alaska Statehood Act (ASA), § 6(m), 72 Stat. 343, the presumption of state title to “lands beneath navigable waters within the boundaries of the respective States” is “confirmed” and “established.” 43 U. S. C. § 1311(a); see also Alaska (Arctic Coast), 521 U. S., at 5-6. The SLA also “establishes States’ title to submerged lands beneath a 3-mile belt of the territorial sea, which would otherwise be held by the United States.” Id., at 6. “As a general matter, then, Alaska is entitled under both the equal footing doctrine and the Submerged Lands Act to submerged lands beneath tidal and inland navigable waters, and under the Submerged Lands Act alone to submerged lands extending three miles seaward of its coastline.” Ibid. The Federal Government can overcome the presumption and defeat a future State’s title to submerged lands by setting them aside before statehood in a way that shows an intent to retain title. Id., at 33-34. The requisite intent must, however, be “‘definitely declared or otherwise made very plain.’” Id., at 34 (quoting United States v. Holt State Bank, 270 U. S. 49, 55 (1926)). With these principles in mind, we discuss the two areas of submerged land at issue here. II The first area of submerged land in dispute, claimed by Alaska under alternative theories in counts I and II of its amended complaint to quiet title (hereinafter Amended Complaint), consists of pockets and enclaves of submerged lands underlying waters in between and fringing the southeastern Alaska islands known as the Alexander Archipelago. These disputed submerged lands, shown in red and dark blue on the map in Appendix A, infra, share a common feature: All points within the pockets and enclaves are more than three nautical miles from the coast of the mainland or of any individual island of the Alexander Archipelago. For these pockets and enclaves, the dispositive question is whether the Alexander Archipelago’s waters qualify as inland waters. If they do, Alaska’s coastline would begin at the outer bounds of these inland waters as marked by the black line drawn on the map in Appendix A, infra. See 43 U. S. C. § 1301(c) (“The term ‘coast line’ means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters”); see also United States v. Alaska, 422 U. S. 184, 187-188, and n. 5 (1975) (Alaska (Cook Inlet)). Under the equal-footing doctrine and the SLA, a presumption of state title would then arise as to all the submerged lands underlying both the inland waters landward of this coastline, and also the territorial sea within three nautical miles of it. Because the United States concedes it could not rebut the presumption of state title as to this aspect of the case, Alaska would have title to all the pockets and enclaves of submerged lands in dispute. If the Alexander Archipelago’s waters do not qualify as inland, then they instead qualify as territorial sea. In that case Alaska would have no claim of title to the disputed pockets and enclaves, as these lands are beyond three nautical miles from the coast of the mainland or any individual island. The second area of submerged land in dispute, claimed by Alaska in count IV of its Amended Complaint, consists of the submerged land beneath Glacier Bay, a well-marked indentation into the coast of the southeast Alaskan mainland. See Appendixes C, D, infra (maps of Glacier Bay). There is no question that Glacier Bay’s waters are inland. For the submerged lands underlying these waters, the controlling question is whether the United States can rebut Alaska’s presumption of title. After receiving the parties’ written submissions and conducting a hearing, the Special Master recommended that this Court grant summary judgment to the United States with respect to Alaska’s claims of title to both areas of submerged land in dispute. Report 1. As to the pockets and enclaves, the Special Master concluded that the waters of the Alexander Archipelago do not qualify as inland waters either under the historic inland waters theory advanced in count I of Alaska’s Amended Complaint or under the juridical bay theory advanced in count II. Id., at 137-138, 226. As to the submerged lands underlying Glacier Bay and claimed by Alaska in count IV, the Special Master concluded that the United States has rebutted the presumption that title passed to Alaska at statehood. Id., at 276. Alaska filed exceptions to each of these three conclusions. We address them in turn. Ill In count I of its Amended Complaint, Alaska alleges that the waters of the Alexander Archipelago are historic inland waters. As this Court has recognized, “where a State within the United States wishes to claim submerged lands based on an area’s status as historic inland waters, the State must demonstrate that the United States: (1) exercises authority over the area; (2) has done so continuously; and (3) has done so with the acquiescence of foreign nations.” Alaska (Arctic Coast), supra, at 11. “For this showing,” we have elaborated, “the exercise of sovereignty must have been, historically, an assertion of power to exclude all foreign vessels and navigation.” Alaska (Cook Inlet), supra, at 197. Nations may exclude from inland waters even vessels engaged in so-called “innocent passage” — passage that “is not prejudicial to the peace, good order or security of the coastal State,” Arts. 14(1), 14(4) of the Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, [1964] 15 U. S. T. 1607, 1610, T. I. A. S. No. 5639 (hereinafter Convention). See United States v. Louisiana, 470 U. S. 93, 113 (1985) (Alabama and Mississippi Boundary Case); United States v. Louisiana, 394 U. S. 11, 22 (1969). To claim a body of water as historic inland water, it is therefore important to establish that the right to exclude innocent passage has somehow been asserted, even if never actually exercised. See Alabama and Mississippi Boundary Case, 470 U. S., at 113, and n. 13. The Court also has considered the “vital interests of the United States” in designating waters as historic inland waters. Id., at 103. The Special Master recommended that the Court grant summary judgment to the United States on this count. The Special Master first made a thorough examination of historical documents, from 1821 to the present, bearing on the status of the Alexander Archipelago’s waters. The Special Master sorted these documents into five distinct periods: (1) Russian sovereignty (1821-1867), Report 23-38; (2) early American sovereignty (1867-1903), id., at 38-55; (3) the 1903 U. S.-Britain Boundary Arbitration, id., at 56-63; (4) later American sovereignty (1903-1959), id., at 63-89; and (5) the poststatehood era (1959-present), id., at 89-107. Based on his examination of the record evidence from all of these periods, the Special Master concluded that “Russia and the United States historically did not assert authority to exclude vessels from making innocent passage through the waters of the Alexander Archipelago.” Id., at 109. In the Special Master’s view, Alaska had at best “uncovered and presented only ‘questionable evidence’ that the United States exercised the kind of authority over the waters of the Archipelago that would be necessary to prove a historic waters claim.” Id., at 129. Though Alaska’s failure to demonstrate that the waters of the Alexander Archipelago had historically been treated as inland waters would by itself justify granting summary judgment to the United States on count I, the Special Master also addressed other relevant factors, such as the acquiescence of other nations and the vital interests of the United States. In the Special Master’s view these factors only strengthened the case for granting summary judgment to the United States. Excepting to the Special Master’s recommendation on count I, Alaska contends the Special Master gave too little weight to historical events that tend to support Alaska’s position. By the same token Alaska argues the Special Master gave too much weight to historical events that tend to undermine its position. Alaska also asserts that foreign nations have acquiesced in the treatment of the waters of the Alexander Archipelago as inland waters, and that the interests of the United States support such treatment. We find Alaska’s arguments unconvincing. Rather than canvassing the entire historical record discussed by the Special Master in his thorough, commendable report, we turn our attention to the events Alaska presents as its best evidence that the Alexander Archipelago’s waters qualify as historic inland waters. A First in time among the events to which Alaska points are incidents from the period of Russian sovereignty. These incidents are pertinent to the inquiry because, as we have held, when Russia ceded the territory of Alaska to the United States in 1867, “the United States thereby acquired whatever dominion Russia had possessed.” Alaska (Cook Inlet), 422 U. S., at 192, n. 13. In 1824, the United States and Russia entered into a treaty that, inter alia, granted United States vessels the right, over the next 10 years, to “frequent, without any hindrance whatever, the interior seas, gulphs, harbours, and creeks [of the Alexander Archipelago], for the purpose of fishing and trading with the natives of the country.” See Convention Between the United States of America and Russia, Art. 4, 8 Stat. 304 (1825) (hereinafter 1824 Treaty or Treaty). In Alaska’s view this Treaty demonstrates that “the Russian claim extended to the entire Archipelago” and thus that Russia treated the archipelago waters as inland waters. Exceptions to Report of Special Master and Brief in Support for Plaintiff 29 (hereinafter Exceptions and Brief for Plaintiff Alaska). The principal problem with Alaska’s assertion is that the 1824 Treaty by its terms did not address navigation for the purpose of innocent passage, but rather addressed only navigation “for the purpose of fishing and trading with the natives.” Even on the questionable assumption that the Treaty’s reference to “interior seas” included all the waters of the Alexander Archipelago and not just waters within three nautical miles of the coast of the mainland or any particular island, but see Report 27-28 (refuting this assumption), the Treaty simply does not provide evidence that Russia asserted a right to exclude innocent passage. Yet evidence of the assertion of this right — not some lesser right — must be provided to support a historic inland waters claim. See Alaska (Cook Inlet), supra, at 197. Upon the expiration of the 10-year right granted to United States vessels by virtue of the 1824 Treaty, Russia stationed a brig, the Chichagoff, at the southern border of Russian America. Alaska implies that Russia’s purpose in stationing the brig there was to exclude any foreign vessels from entering the Alexander Archipelago’s waters. See Exceptions and Brief for Plaintiff Alaska 30-31. Were we to accept this interpretation of the Chichagoff incident, we would acknowledge it as some evidence that Russia treated the Alexander Archipelago’s waters as inland waters. As the Special Master noted, however, a report prepared for the 1903 Alaskan Boundary Tribunal (a tribunal we will discuss further) described the Chichagoff incident as follows: “Governor Wrangell sent the brig Chichagoff, under command of Lieutenant Zarembo, to Tongas, near the southern boundary line at 54° 40', for the purpose of intercepting foreign vessels entering the inland waters of the colony, to the masters of which he was to deliver written notice of the expiration of the treaty provisions, being furnished with six copies for American and three for British vessels.” 1 Proceedings of the Alaskan Boundary Tribunal, S. Doc. No. 162,58th Cong., 2d Sess., pt. 2, p. 70 (1904) (hereinafter ABT Proceedings) (footnote omitted). Like the Special Master, we see nothing in this passage to indicate that Russia, through its actions with respect to the Chichagoff, asserted a right to exclude from the Alexander Archipelago waters foreign vessels engaged only in innocent passage. By giving written notice of the expiration of the 1824 Treaty rights, the Chichagoff reminded American mariners that they were no longer free to trade with the natives, or to approach within cannon shot of the Russian lands “without any hindrance whatever.” 1824 Treaty, Art. 4, 8 Stat. 304. Russia did not assert thereby the more sweeping right to exclude even vessels engaged only in innocent passage. Alaska also points to evidence that in 1836 Russian forces apprehended and boarded the American vessel Loriot while it was within the Alexander Archipelago waters, and then ordered it “ ‘to leave the waters of His Imperial Majesty.’ ” Exceptions and Brief for Plaintiff Alaska 30; see also Letter from John Forsyth to G. M. Dallas (May 4, 1837), reprinted in Report of Secretary of State Thomas F. Bayard upon the Seal Fisheries in the Bering Sea, S. Exec. Doc. No. 106, 50th Cong., 2d Sess., 232-233 (1889). Even this incident does not constitute evidence that Russia viewed the archipelago waters as inland waters, however, because the Loriot was not engaged in innocent passage. The Loriofs mission, as freely admitted in a contemporary letter written by a State Department official to a member of the United States legation in St. Petersburg, was to visit “the northwest coast of America, for the purpose of procuring provisions, and also Indians to hunt for sea otter on the said coast.” Id., at 232. By excluding the Loriot, which evidently had tried to exceed the limits of mere “innocent passage,” Russia did not, and could not, assert a right to exclude vessels engaged solely in innocent passage. In sum, none of the incidents Alaska cites from the period of Russian sovereignty support the proposition that Russia treated the waters of the Alexander Archipelago as inland waters prior to ceding Alaska to the United States in 1867. B For the period of early U. S. sovereignty between 1867 and 1903, Alaska cites not a single incident demonstrating that the United States acted in a manner consistent with an understanding that the Alexander Archipelago waters were inland. Alaska thus leaves itself with at most 56 years to demonstrate continuous prestatehood treatment of the Alexander Archipelago as inland waters. This alone constitutes a substantial weakness in Alaska’s position. As to the years between 1867 and 1903, Alaska does attempt to explain away a significant event which undercuts its claim, but this attempt is unsuccessful. In 1886, Secretary of State Thomas F. Bayard wrote a letter to Secretary of Treasury Daniel Manning concerning the limits of the territorial waters of the United States on both the northeastern and the northwestern coasts. See 1 J. Moore, Digest of International Law 718-721 (1906). The State Department’s position with respect to waters surrounding fringing islands on both coasts was that the sovereigns of those islands could only claim a territorial sea of three miles from the coast of each island. Secretary Bayard explained that, in asserting the 3-mile belt of territorial sea, the United States denied neither “the free right of vessels of other nations to pass, on peaceful errands, through this zone” nor the right “of relief, when suffering from want of necessaries, from the shore.” Id., at 720-721 (internal quotation marks omitted). According to Secretary Bayard, the State Department’s position was a well-considered one, rooted in principles of reciprocity and consistent practice: “These rights we insist on being conceded to our fishermen in the northeast, where the mainland is under the British sceptre. We can not refuse them to others on our northwest coast, where the sceptre is held by the United States. We asserted them . . . against Russia, thus denying to her jurisdiction beyond three miles on her own marginal seas. We can not claim greater jurisdiction against other nations, of seas washing territories which we derived from Russia under the Alaska purchase.” Id., at 721 (internal quotation marks omitted). The Special Master singled out this letter as “unambiguously support[ing] the United States’ position that the United States and Russia historically did not assert the right to exclude foreign vessels from the waters of the Archipelago.” Report 109. Emphasizing the statements in the letter that the United States could not “‘claim greater jurisdiction’” than three miles of marginal seas and that foreign vessels had the right to make “‘free transit,’” the Special Master concluded that “[o]fficials who held this belief could not, and evidently did not, claim that the United States could exclude innocent passage through the waters.” Id., at 110. Alaska argues that Secretary Bayard’s letter is of minimal relevance because “it was internal correspondence that primarily addressed a dispute on the East coast” and thus “did not announce to any foreign nation that the United States had abandoned a claim to the Archipelago.” Exceptions and Brief for Plaintiff Alaska 31-32. Alaska’s arguments are unpersuasive. That Secretary Bayard’s letter referred to the east coast in no way diminishes the unequivocal nature of its statements with respect to the Alaskan coast. It may be true that no foreign nation ever became aware of Secretary Bayard’s letter (though the subsequent publication of the letter in the United States’ Digest of International Law gives us reason to believe the contrary). Regardless, Secretary Bayard’s letter still provides strong evidence that the United States, as of 1886, did not claim a right to exclude all foreign vessels from the Alexander Archipelago waters and had no intention of doing so. We do not need to parse the letter to see whether it “announce[d] to any foreign nation that the United States had abandoned a claim to the Archipelago,” for Alaska can muster no proof that the United States as of 1886 had made any such claim in the first place. C A stronger piece of evidence Alaska identifies to support its historic inland waters claim is a litigating position taken by the United States during an arbitration proceeding in 1903. This proceeding was before the Alaskan Boundary Tribunal, a body convened to resolve a dispute between the United States and Britain regarding the land boundary between southeastern Alaska and Canada. Report 56-63, 116-119. In a written submission to the tribunal, the United States described its view of the “political coast” of Alaska as enclosing all of the Alexander Archipelago waters, as shown on the map in Appendix A, infra. 4 ABT Proceedings, pt. 1, pp. 31-32 (1903). According to the United States’ submissions, “[t]he boundary of Alaska, — that is, the exterior boundary from which the marine league [of the territorial sea] is measured, — runs along the outer edge of the Alaskan or Alexander Archipelago, embracing a group composed of hundreds of islands.” 5 id., pt. 1, at 15-16. At oral argument before the tribunal, moreover, counsel for the United States made explicit that the recognition of such a “political coast” would render all waters landward of it “just as much interior waters as the interior waters of Loch Lomond.” 7 id., at 611 (1904). Before the Special Master in the instant case, the United States sought to discount as mere hypothetical statements the submissions it had made at the tribunal a full century prior. The Special Master rejected this view and instead agreed with Alaska that in its submissions to the tribunal the United States “was expressing a considered analysis of the [Alexander Archipelago] area, not merely speaking hypothetically for the purpose of showing a flaw in Britain’s argument.” Report 61. Ultimately, however, the Special Master still concluded that the United States’ submissions to the tribunal were “not an adequate assertion of authority over the waters of the Alexander Archipelago.” Id., at 118. The Special Master noted that the issue before the 1903 tribunal was not “[t]he status of the waters of the Alexander Archipelago,” ibid., but rather the land boundary between southeast Alaska and Canada; that the United States’ declarations regarding the status of the Alexander Archipelago took up “only a few paragraphs in a seven volume record”; and that “[f]or these reasons, it would be unrealistic to conclude that counsel’s assertions at the tribunal should have made foreign nations (other than Britain) aware that the United States was asserting a right to exclude them,” ibid. Alaska responds that the Special Master was incorrect to conclude that the United States’ submissions in 1903 could not have made foreign nations other than Britain aware of its claim. Alaska argues that Norway became aware of the United States’ submissions and then relied on them in its dispute with the United Kingdom in the well-known Fisheries Case (U. K. v. Nor.)) 1951 I. C. J. 116 (Judgment of Dec. 18). As the Special Master explained, however, “[t]he ability of one foreign nation to discover the United States’ argument when litigating a related issue . .. does not mean that foreign nations should have known of the United States’ position.” Report 118, n. 34. This reasoning carries particular force in light of the precedent a contrary conclusion would create. If this Court were to recognize historic inland waters claims based on arguments made by counsel during litigation about nonmaritime boundaries, “the United States would itself become vulnerable to similarly weak claims by other nations that would restrict the freedom of the seas.” Reply Brief for United States in Response to Exceptions of the State of Alaska 15-16 (hereinafter Reply Brief for United States). We are reluctant to create a precedent that would have this effect. D The litigating position taken by the United States at the ABT Proceedings at best would provide weak support for inland status of the Alexander Archipelago waters even were we to accept it as signaling a significant change from the view expressed in Secretary Bayard’s letter of 1886; for there is little evidence that the United States later acted in a manner consistent with this litigating position. Alaska says that the United States asserted control over the waters by enacting and enforcing fishery regulations in the Alexander Archipelago during the first half of the 20th century. Exceptions and Brief for Plaintiff Alaska 25-29. In particular, Alaska cites the 1906 Alien Fishing Act, 34 Stat. 263, which prohibited foreign, but not domestic, commercial fishing “in any of the waters of Alaska.” As its sole evidence that the Act was enforced even in the pockets and enclaves at issue, Alaska cites the seizure by the United States Coast Guard in 1924 of the Canadian vessel Marguerite, whose captain was fined $100 for fishing in contravention of the Act. Assuming, arguendo, that the Marguerite was seized in one of the disputed pockets or enclaves, a point which the Special Master found unclear, Report 67-68, this one incident hardly suffices to demonstrate a continuous policy. Indeed, contrary authority exists. In 1934 the Departments of State and Commerce exchanged letters expressing their shared understanding that the United States lacked the power to enforce the Act more than three miles from the shore of any island or the mainland. Id., at 70-71 (quoting Letter from Daniel C. Roper, Secretary of Commerce, to Secretary of State 1 (Sept. 5,1934) (“ ‘Canadian fishermen may operate [in the Alexander Archipelago waters] so long as they remain outside the three mile limit’ ”); and Letter from William Phillips, Under Secretary of State, to Secretary of Commerce 1 (Sept. 13, 1934) (expressing appreciation for the assurance “ ‘that the Fishery laws and regulations will be enforced by the Bureau of Fisheries in conformity with the view that Canadian fishermen may operate [in the Alexander Archipelago waters] so long as they remain outside the three-mile limit’ ”)). This understanding was inconsistent with a view of the Alexander Archipelago waters as inland. Report 70-71,110-111. Even were the seizure of the Marguerite taken as evidence of a right asserted by the United States in 1924, the official correspondence cited by the Special Master establishes that by 1934 the United States had reverted to the position taken in Secretary Bayard’s 1886 letter. As the United States observes, furthermore, the fact that Britain protested the seizure of the Marguerite indicates that any claim of right implied from that seizure was not one in which foreign nations acquiesced. Reply Brief for United States 17, n. 10. Alaska also refers to various poststatehood events which, in its view, confirm the status of the Alexander Archipelago waters as inland waters. We find insufficient prestatehood evidence to establish inland waters status in the first place, and so we find it unnecessary to discuss these further events. At best, Alaska’s submissions before this Court establish that the United States made one official statement — in the 1903 Alaska Boundary Arbitration — describing the Alexander Archipelago waters as inland, and that the United States seized one foreign vessel — the Marguerite — in a manner arguably consistent with the status of those waters as inland. These incidents are insufficient to demonstrate the continuous assertion of exclusive authority, with acquiescence of foreign nations, necessary to support a historic inland waters claim. Alaska’s exception to the Special Master’s recommendation on count I of the Amended Complaint is overruled. IV In count II of its Amended Complaint, Alaska presents an alternative theory to justify treating the Alexander Archipelago’s waters as inland. Alaska’s alternative theory is that the waters of the Alexander Archipelago in truth consist of two vast, but as yet unnoticed, juridical bays. Waters within a juridical bay would be deemed inland waters. Art. 5(1) of the Convention, 15 U. S. T., at 1609. Thus, if accepted, Alaska’s theory would render all the Alexander Archipelago’s waters inland waters to the extent they lie within the limits of the bays Alaska identifies. For this reason, and because the United States would not be able to rebut the presumption of title that would arise from inland waters status, Alaska’s alternative theory would require the Court to accept Alaska’s claim of title to the pockets and enclaves in dispute. The parties agree that Alaska’s claimed juridical bays would exist only if four of the Alexander Archipelago’s islands — Kuiu Island, Kupreanof Island, Mitkof Island, and Dry Island — were deemed to be connected to each other and to the mainland. We have recognized that such “assimilation]” of islands fringing the mainland is possible, albeit only in “exceptional case[s]” in which “an island or group of islands ... ‘are so integrally related to the mainland that they are realistically parts of the “coast.”’” United States v. Maine, 469 U. S. 504, 517 (1985) (quoting United States v. Louisiana, 394 U. S., at 66). If the assimilation Alaska urges were accepted, the four islands Alaska has identified would form a constructive peninsula extending from the mainland and dividing the Alexander Archipelago’s waters in two. To bolster its case, Alaska labels the waters north and south of this hypothetical peninsula the “North Bay” and the “South Bay.” See Appendix B, infra (map showing Alaska’s hypothetical peninsula and the resulting bays). Were we to accept Alaska’s hypothetical peninsula, we would then be required to determine whether North Bay and South Bay in fact qualify as juridical bays under the Convention, which we have customarily consulted for purposes of “determining the line marking the seaward limit of inland waters of the States.” United States v. Maine, supra, at 513. Article 7(2) of the Convention sets forth the following geographic criteria for deciding whether a body of water qualifies as a bay: “For the purposes of these articles, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.” 15 U. S. T., at 1609. This definition can be understood to comprise a number of elements. To apply the definition to a given body of water, one must first determine whether the body of water satisfies the descriptive test of being a “well-marked indentation.” One must then determine, among other things, whether the indentation’s area satisfies the mathematical “semi-circle” test set forth in the second sentence of Article 7(2). After due consideration of the parties’ arguments, the Special Master recommended that the Court reject Alaska’s alternative theory. The Special Master first conducted a detailed assessment of the propriety of assimilating the four islands in question in order to form the constructive peninsula so critical to Alaska’s theory. Report 147-197. Applying the principles set forth in United States v. Maine, supra, at 514-520, and United States v. Louisiana, supra, at 60-66, the Special Master concluded that assimilation would be unwarranted save for two inconsequential channels that “do not suffice to create the juridical bays alleged by Alaska.” Report 197. In the alternative, the Special Master concluded that, even were Alaska’s hypothetical peninsula accepted, neither “North Bay” nor “South Bay” could satisfy the descriptive test that a proposed bay constitute a “ ‘well-marked indentation.’” Id., at 222. Excepting to the Special Master’s recommendations, Alaska makes a detailed argument that this Court’s precedents regarding assimilation of islands support recognition of the constructive peninsula Alaska has identified. Exceptions and Brief for Plaintiff Alaska 39-45. Alaska further contends that, once this peninsula is recognized, the resulting bodies of water satisfy all the criteria set forth in the Convention. Id., at 45-49. We overrule Alaska’s exception. For the sake of brevity we assume, arguendo, that each of the islands in Alaska’s hypothetical peninsula should be assimilated one to another (though we are aware of, and Alaska itself cites, no precedent foreign or domestic in which such a massive amount of successive assimilation has been accepted for the purpose of identifying a juridical bay). Even with the benefit of this daunting doubt Alaska could not prevail, for its hypothetical bays do not satisfy the Convention’s descriptive requirement of being well-marked indentations. To qualify as a well-marked indentation, a body of water must possess physical features that would allow a mariner looking at navigational charts that do not depict bay closing lines nonetheless to perceive the bay’s limits, and hence to avoid illegal encroachment into inland waters. See G. West-erman, The Juridical Bay 82-85 (1987). Alaska’s hypothetical bays do not possess these features. We have been referred to no authority which indicates that a mariner looking at an unadorned map of the southeast Alaskan coast has ever discerned the limits of Alaska’s hypothetical bays. So subtle are these limits that even Alaska itself did not discover them until after it had filed its first complaint in this action. Compare Complaint to Quiet Title (Nov. 24,1999) with Amended Complaint (Dec. 14, Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_district	G	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". CHENERY v. EMPLOYERS’ LIABILITY ASSUR. CORPORATION, Limited. (Circuit Court of Appeals, Ninth Circuit. April 6, 1925.) No. 4449. 1. Carriers <@=4—One may be engaged in one line of business as common carrier and in another line of business as private carrier. The same person or corporation may be engaged in one line of business as a common carrier, and in another line of business as a private carrier. 2. insurance <@=452—Operators of bus line held private and not “common carrier,” within accident policy. Operators of bus line between two cities, who by special arrangement transported passenger in small automobile to city, where he was transferred to bus for transportation to other city, held still a private and not a common carrier as to such passenger within accident policy covering transportation by “common carrier.” [Ed. Note.—For other definitions, pee Words and Phrases, First and Second Series, Common Carrier.] 3. Evidence <@=472(l) — Carrier’s testimony that he could refuse to carry passengers in-. admissible, in action involving issue as to whether he was private or common carrier. In action involving issue, as to whether operator of bus line was private or common carrier, within accident policy, operator could not testify that he could refuse to carry passengers, since such testimony would have been a mere conclusion on the main issue. 4. Insurance <@=668(11)—Whether carrier was private carrier or common carrier, within accident policy, held question for court, and not question of fact for jury. In action on accident policy, involving issue as to whether carrier by which injured person was being transported was a common carrier within the policy, the question whether the carrier was a private or a common carrier under the facts held a question for the-court, and not a question of fact for the jury. In Error to the District Court of the United States for the Southern Division of the Northern District of California; George M. Bourquin, Judge. Action by Leonard Chenery, as administrator with the will annexed of the estate of Edith P. Chenery, deceased, against the Employers’ Liability Assurance Corporation. Judgment for defendant, and plaintiff brings error. Affirmed. Wallace & Ames, of San Francisco, Cal., for plaintiff in error. Redman & Alexander, of San Francisco, Cal., for defendant in error. Before GILBERT, HUNT, and RUDKIN, Circuit Judges. RUDKIN, Circuit Judge. This was an action by an administrator with the will annexed on a policy of insurance providing indemnity for the loss of life or injuries resulting through accidental means. At the close of the testimony on the part of the plaintiff, the court below directed a verdict in favor of the defendant; hence the present writ of error. The sole question for our consideration is this: Did the intestate meet her death while a passenger in or on a public conveyance provided by a common carrier for passenger service? There was no controversy over the facts. For about five years prior to the date in question Roberts & Ward operated a motor bus line between the towns of Clevedon and Papakura, in New Zealand, for the transportation of passengers and light parcels for hire. The distance between the 'two points is about 8 miles and the busses made three trips daily, leaving Clevedon at 7 a. in., 8:30 a. m., and 3:30 p. m. The regular passenger fare was three shillings, single; six shillings, return. In addition to operating the bus line between the points in question, Roberts & Ward transported passengers to and from points beyond Clevedon by special arrangement. By special arrangement we mean simply a request for the transportation by telephone or otherwise and the payment of the compensation agreed upon. During the month of June," 1923, the intestate was visiting a sister at Sandspit, about nine miles east of Clevedon. On the afternoon of June 16, the intestate and, three companions, desiring to take the train at Papakura that evening, made arrangements with-Roberts & Ward, by telephone, to meet them at some point on the road between Sandspit and Clevedon and transport them to Papakura. Pursuant .to this arrangement the four parties in question proceeded in a farm cart from Sandspit until they met Ward at Whakatiri, about six miles west of Sandspit. At that point they transferred from the farm cart to a Ford car driven by Ward and proceeded on to Clevedon. At Clevedon they transferred from the Ford car to a’Dodge motor bus and proceeded on toward Papakura, but before reaching their destination the motor bus overturned and the intestate was killed. There were no passengers in the Ford car or in the motor bus, except the intestate and her three companions, and no baggage except that belonging to the intestate and her companions.. No parcels were transported except one loaf of bread and one newspaper; but where these were taken up, or where they were to be delivered, the record does not disclose. It is well settled by the authorities that the same person or corporation may be engaged in one line of business as a common carrier and in another line of business as a private carrier. Santa Fé Railway v. Grant Bros., 228 U. S. 177, 33 S. Ct. 474, 57 L. Ed. 787; Terminal Taxicab Co. v. Dist. of Col., 241 U. S. 252, 36 S. Ct. 583, 60 L. Ed. 984, Ann. Cas. 1916D, 765; Rathbun v. Ocean Accident & Guarantee Corporation, 299 Ill. 562, 132 N. E. 754, 19 A. L. R. 140; Forbes v. Reinman & Wolfort, 112 Ark. 417, 166 S. W. 563, 51 L. R. A. (X. S.) 1164; Georgia Life Ins. Co. v. Easter, 189 Ala. 472, 66 So. 514, L. R. A. 1915C, 456. Roberts & Ward were no doubt common carriers of passengers on their regular run between Papakura and Clevedon. It seems equally clear that they wore mere private carriers when they undertook to carry passengers beyond their regular run by special arrangement or agreement. Had the carriers, in this ease, transported the intestate and her eornn anions under the special contract or agreement from Sandspit or Whakatiri to Papakura, without passing over any part of the main road from Clevedon to Papakura, it would seem clear that they were private carriers only; and if the intestate met her death while in the Ford car before reaching Clevedon, the same conclusion would follow. We do not think that the fact that a part of the trip was made over the main road from Clevedon to Papakura, or the fact that the passengers were transferred from the Ford car to the motor bus at Clevedon, changes the rule. The reason for' the transfer is not disclosed by the record, but it does appear that the transfer at Clevedon was not made to one of the regular busses engaged in the common carrier service. In any event, the transportation was an entire one under an entire contract, and the carriers acted in the same capacity throughout. In our opinion, that capacity was a private one. It is claimed by thp plaintiff in error that the carrier did not testify that he could refuse to carry passengers beyond the main line under the private contract or arrangement. True, the witness did not so testify, nor would he have been permitted to do so. His answer would be a mere conclusion. If a common carrier, he had no right to refuse; but, if only a private carrier, he had that right. To permit him to answer the question would be to permit him to decide the main issue in the case, and that was the function of the court and jury. Nor can we agree with counsel for plaintiff in error that there was a question of faet for the consideration of the jury, for, under the admitted facts in the case, the carriers were either common carriers or private carriers, and it was the plain duty of the court to direct a verdict for either one or the other of the parties. The direction of a verdict in the favor of the defendant was, in our opinion, free from error. This distinction between a common carrier and a private carrier may seem somewhat refined and technical, but the intestate was not insured unless she met her death while a passenger in or on a public conveyance provided by a common carrier for passenger service. The judgment is affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
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. SHERIDAN FLOURING MILLS, Inc., v. CASSIDY et al. No. 1502. Circuit Court of Appeals, Tenth Circuit. Dec. 14, 1936. George T. Evans, of Denver, Colo. (A. W. Lonabaugh, of Sheridan, Wyo., on the brief), for appellant. Thomas G. Carney, Sp. Asst, to Atty. Gen. (Robert H. Jackson, Asst. Atty. Gen., Sewall Key, Andrew D. Sharpe, and Frederic G. Rita, Sp. Assts. to Atty. Gen., and Carl L. Sackett, U. S. Atty., of Cheyenne, Wyo., on the brief), for appellees. Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges. Writ of certiorari denied 57 S. Ct. 491, 81 L. Ed. PER CURIAM. Sheridan Flouring Mills, Inc., brought this suit for an injunction, interlocutory and permanent, enjoining Cassidy, as collector of internal revenue, and Sackett, as United States Attorney, from requiring the plaintiff to file a return under title 3 of the Revenue Act of 1936, § 501, 49 Stat. 1734, 26 U.S.C.A. § 345, and from collecting from it any tax imposed by the provisions of such title. The bill set up the requisite jurisdictional facts and further alleged: That the plaintiff obtained an interlocutory injunction in the District Court of the United States for the District of Wyoming in Sheridan Flouring Mills, Inc., Plaintiff, v. Thomas K. Cassidy, individually and as Collector of Internal Revenue of United States et al., No. 2463 In Equity, restraining the defendants therein from collecting from the plaintiff therein, processing taxes under the provisions of the Agricultural Adjustment Act, on condition that the plaintiff pay into the registry of such court, monthly, an amount equal to the taxes accruing against it under the provisions of the Agricultural Adjustment Act (as amended [7 U.S.C.A. § 601 et seq.]) that pursuant to such order, it paid into the registry of such court amounts aggregating $48,574.95; that thereafter the court entered its final decree in such cause directing the payment to the plaintiff therein of the amounts so deposited in the registry of the court and that plaintiff received from the clerk of such court $48,574.95; that the provisions of title 3 of the Revenue Act of 1936 (sections 501-506 [26 U.S.C.A. §§ 345-345e]) are unconstitutional and void; that the provisions of 26 U.S.C.A. § 322 and note (Revenue Act 1936, §. 322) and sections 1670 to 1675, inclusive, providing for the credit or refund of overpayments of taxes and of taxes illegally collected, and for suits at law to recover overpayments of taxes and taxes illegally collected are inapplicable to taxes sought to be imposed and collected under the provisions of title 3, and that plaintiff is without an adequate remedy at law in the premises. From an order denying the temporary injunction and a decree dismissing the bill, plaintiff has appealed. After lodging its appeal here, plaintiff filed its petition in this court for a temporary restraining order pending appeal. The provisions of title 3 here material read: •“Sec. 501. Tax on net income from certain sources “(a) The following taxes shall be levied, collected, and paid for each taxable year (in addition to any other tax on net income), upon the net income of every person which arises from the sources specified below: “(1) A tax equal to 80 per centum of that portion of the net income from the sale of articles with respect to which a Federal excise tax was imposed on such person but not paid which is attributable to shifting to others to any extent the burden of such Federal excise tax and which does not exceed such person’s net income for the entire taxable year from the sale of articles with respect to which such Federal excise tax was imposed. “(2) A tax equal to 80 per centum of the net income from reimbursement received by such person from his vendors of amounts representing Federal excise-tax burdens included in prices paid by such person to such vendors, to the extent that such net income does not exceed the amount of such Federal excise-tax burden which such person in turn shifted to his vendees. “(3) A tax equal to 80 per centum of the net income from refunds or credits to such person from the United States of Federal excise taxes erroneously or illegally collected with respect to any articles, to the extent that such net income does not exceed the amount of the burden of such Federal excise taxes with respect to such articles which such person shifted to others.” 26 U.S.C.A. § 345. “Sec. 503. Administrative provisions “(a) All provisions of law (including penalties) applicable with respect to taxes imposed by Title I of this Act [subchapters A, B and C of this chapter], shall, insofar as not inconsistent with this title [subchapter], be applicable with respect to the taxes imposed by this title [subchapter].” 26 U. S.C.A. § 345b. The asserted right to relief in equity is predicated upon two principal propositions : 1. That title 3 is unconstitutional. 2. That the provisions of 26 U.S.C.A. § 322 and note (Title 1 of the Revenue Act of 1936, 49 Stat. 1731) relating to refunds or credits of overpayments of income taxes and to suits at law to recover same, and the provisions of 26 U.S.C.A. §§ 1670 to 1675, inclusive, relating to abatements, credits, and refunds of taxes and penalties erroneously, illegally, or wrongfully collected and to suits at law to recover same, have no application to taxes collected under title 3 or that their application thereto is so doubtful as to render its remedy to pay the; taxes and sue to recover them back at law uncertain. The appeal from the denial of an interlocutory injunction and the petition for a stay here have been argued and submitted. We pass the constitutional question and assume, but do not decide, in disposing of the matters now before us, that title 3 is unconstitutional. 26 U.S.C.A. § 1543, provides: “No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” It is settled that, notwithstanding the provisions of section 1543, supra, a court of equity may grant injunctive relief as against the assessment or collection of a federal tax, where extraordinary and exceptional circumstances render its provisions inapplicable. Dodge v. Brady, 240 U. S. 122, 126, 36 S.Ct. 277, 60 L.Ed. 560; Hill v. Wallace, 259 U.S. 44, 62, 42 S.Ct. 453, 66 L.Ed. 822; Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 510, 52 S.Ct. 260, 263, 76 L.Ed. 422. In the cáse last cited, the court said: “And this court likewise recognizes the rule that, in cases where con dainant shows that in addition to the illegality of an exaction in the guise of a tax there exist special and extraordinary circumstances sufficient to bring ‘the case within some acknowledged.head of equity jurisprudence, a suit may be maintained to enjoin the collector.” Counsel for plaintiff assert that section 322 is limited to an “overpayment of any tax,” that is to an exaction in excess of the amount due, and that the payment of a tax exacted under an unconstitutional statute is not an “overpayment,” since no tax is due. They further assert that the intent and purpose of title 3 is to exact from those who either did not pay or paid and recovered back processing taxes under the Agricultural Adjustment Act, a tax equal-to 80 per cent, of the amount of such processing taxes that were shifted to others, on the ground of their unjust enrichment; that it is contrary to the intent and purpose of title 3 to refund the taxes imposed thereunder, even though their exaction is illegal; and, therefore, the provisions with respect to refunds and credits above referred to are inconsistent with title 3 and inapplicable to-the taxes sought to be imposed thereby. They say this intent to exact the tax irrespective of its legality is further manifested by the provisions of title 7 of the Revenue Act of 1936, §§ 901-917, 49 Staff 1747 (7 U.S.C.A. §§ 623 note, 644 et seq.), limiting the right to refunds of taxes paid-under the Agricultural Adjustment Act. We doubt that the word “overpayment” should be construed so narrowly as to make it applicable only to excessive payments. But if it should be so construed, then the general provisions of section 1670, supra, become applicable, if the tax is illegal. Title 3 is no part of the Agricultural Adjustment Act. It is a distinct and separate title of the Revenue Act of 1936. It undertakes to levy a tax on net income of every person arising from certain specified sources, to wit, from the sale of articles, with respect to which a federal excise tax was imposed but not paid and shifted to others; or from reimbursement received by such person from his vendors of amounts representing federal excise taxes, which such person in turn shifted to his vendees ; or from refunds or credits of federal excise taxes -erroneously or illegally collected, the amount of which was shifted to others. And we find nothing in its provisions inconsistent with the refund of a tax imposed and collected thereunder if it is an unconstitutional exaction. Section 503 (a) of title 3 (26 U.S.C. A. § 345b (a) is a common method of adopting, by cross-reference, the administrative provisions for one form of tax for the administration of another form of tax. See the provision in title 4, Revenue Act of 1932, § 627, 47 Stat. 269 (26 U.S.C.A. § 1420 et seq. note). The purpose of the phrase, “insofar as not inconsistent with this Title,” was to exclude from the reference administrative provisions covered by title 3, such as the time for filing returns, and for making payment of taxes and extensions of time for payment of taxes. See section 503 (b) and (c) of title 3 (26 U.S.C.A. § 345b (b, c). We think it was not intended to render inapplicable the provisions of section 322 and sections 1670 to 1675, inclusive. Furthermore, if title 3 is unconstitutional, section 503 (a) falls as an integral part thereof leaving section 322 and sections 1670 to 1675, inclusive, unaffected. An unconstitutional enactment cannot limit or impair plaintiffs rights and remedies under the last-mentioned sections. It follows that if title 3 is unconstitutional a tax paid thereunder is either an overpayment within the provisions of section 322 or an illegal tax within the provisions of section 1670. In other words, if plaintiff pays the tax and sues to recover it, and title 3 is constitutional, it will not be entitled to recover back the tax, and if it is unconstitutional, it will be entitled to recover back the tax notwithstanding any possible limitation sought to be imposed by section 503 (a) of title 3. Moreover, in the brief filed herein by Hon. Robert H. Jackson, Assistant Attorney General, and his associate counsel, section 503 (a), supra, is construed as rendering section 322 and sections 1670 to 1675, inclusive, applicable to the taxes imposed by title 3. We are of the opinion that if the construction of title 3 and particularly section 503 (a) thereof is doubtful, this administrative construction would bind the Commissioner of Internal Revenue in any future dealings with the plaintiff with respect to the taxes imposed by title 3. See American T. & T. Co. v. United States, 57 S.Ct. 170, 81 L.Ed. - (decided Dec. 7, 1936.) The order denying an interlocutory injunction is affirmed. The petition for a temporary injunction pending the appeal herein is denied. A temporary injunction restraining the defendants from requiring plaintiff to file a return and from collecting any tax under the provisions of title 3 is granted for a period of fifteen days from this date and for such further time as this court may order, to enable plaintiff to petition the Supreme Court of the United States for certiorari and fqr a temporary injunction restraining defendants from requiring plaintiff to file a return and from collecting any tax under title 3, pending a disposition of the petition for certiorari. The defendants will be enjoined from assessing or collecting any penalties against plaintiff for failing to file a return or to pay any tax under title 3 within the period the temporary injunction of this court is in force. Section 822, supra, in part reads: “(a) Authorization. Where there has been an overpayment of any tax imposed by this chapter, the amount of such overpayment shall be credited against any income, war-profits, or excess-profits tax or installment thereof then due from the taxpayer, and any balance shall be refunded immediately to the taxpayer.” Section 1670, supra, in part reads: “Authority to malee abatements, wed- . its, and refunds “(a) To taxpayers — (1) Assessments and collections generally. Except as otherwise provided by law in the case of income, estate, and gift taxes, the Commissioner, subject to regulations prescribed by the Secretary, is authorized to remit, refund, and pay back all taxes erroneously or illegally assessed or collected, all penalties collected without authority, and all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected.” 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_usc1sect	1341	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES of America, Plaintiff-Appellee, v. Bradford DAVIDSON, Defendant-Appellant. No. 84-3263. United States Court of Appeals, Sixth Circuit. Argued March 13, 1985. Decided April 17, 1985. Timothy Howard (lead), Cleveland, Ohio, Edwin H. Jacobs, argued, Shaker Heights, Ohio, for defendant-appellant. J. Matthew Cain, Asst. U.S. Atty., Cleveland, Ohio, Marcia Harris, argued, for plaintiff-appellee. Before MERRITT, Circuit Judge, PHILLIPS and PECK, Senior Circuit Judges. MERRITT, Circuit Judge. In this two count mail fraud case arising from the efforts of the defendant, Bradford Davidson, to collect fire insurance on a commercial building which he caused to be burned down, the defendant appeals his conviction on grounds that the government did not prove through admissible evidence that the defendant caused government exhibits five and seven to be mailed or that they were, in fact, mailed. From this argument he argues further that the government failed to prove the required element of mailing or use of the mails, one of the two essential elements of a mail fraud case under 18 U.S.C. § 1341. The two documents offered by the government to satisfy the mail requirement of the two counts are Exhibit 5, a document purportedly signed by the defendant employing an adjusting company to represent him in collecting the loss, and Exhibit 7, a schedule of items lost in the fire. The government's theory of the case is that these two documents were mailed by the defendant’s adjusting company to the insurance company’s adjuster. In order to prove the mailings, the government called the insurance company’s supervising adjuster, who was in charge of the office which received Exhibits 5 and 7. He testified that based on personal knowledge, as well as notations on the documents, they were received by his office in the mail. The defendant argues that the documents are hearsay and are not admissible under the business records exception to the hearsay rule. He argues further that the documents do not establish, even if admissible, the mailing element because there is no evidence linking the documents directly to the defendant. The defendant argues that the adjusting company which sent the employment contract and the schedule to the insurance company’s adjuster could have been acting as an intermeddler and hence that there is no proof that the adjusting. company actually represented the defendant or that the defendant caused the mail to be used by the adjusting company. We do not agree with these arguments. The insurance company’s supervising adjuster testified that Exhibits 5 and 7 were received in the mail in the regular course of business. With respect to Exhibit 7, the government introduced the envelope itself showing on its face that the schedule was stamped and mailed. The supervising adjuster was the office manager of the office which received and retained the records in the ordinary course of business. The defendant offered no rational argument against applying the business records exception to the hearsay rule. Therefore, Exhibits 5 and 7 are not inadmissible hearsay. The defendant’s argument that the proof does not connect him to the mailings is likewise in error. Exhibit 5 is an employment contract between the defendant and the adjusting company that mailed Exhibits 5 and 7. From this evidence, the jury was entitled to infer that the defendant employed the adjusting firm and authorized it to take the steps necessary to collect the fire loss, including the use of the mails. The defendant should have reasonably anticipated that the adjusting company hired by him would use the mails, as it did, to collect the fire loss. Reasonable anticipation that the mails will be used satisfies the mailing element under section 1341. See Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-363, 98 L.Ed. 435 (1954). The Pereira case makes it clear that the defendant does not himself have to have dropped the letter in the mail. Mail fraud only requires that the defendant reasonably anticipate, or as a reasonable person foresee, the use of the mails. From the evidence introduced by the government, the jury could have reasonably inferred that the defendant employed his own adjusting firm authorizing the firm to take whatever steps necessary to collect the fire loss, including the use of the mails. Exhibits 5 and 7 are documents from which the jury could infer that the adjusting company hired by defendant did, in fact, use the mails to forward to the insurance company’s adjusting firm schedules of losses and other items necessary to collect the loss. Accordingly, the judgment of the District Court upon the jury verdict is affirmed. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number. Answer:
sc_casedisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. KLEHR et ux. v. A. O. SMITH CORP. et al. No. 96-663. Argued April 21, 1997 Decided June 19, 1997 Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Souter, and Ginsburg, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Part III. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined, post, p. 196. Charles A. Bird argued the cause for petitioners. With him on the briefs were Mary R. Vasaly, Michael C. McCarthy, and Malcolm McCune. Bruce J. Ennis, Jr., argued the cause for respondents. With him on the brief were Frederick W. Morris, Blake Shepard, Jr., Jeffrey E. Grell, Nory Miller, and Kathleen M. Massey. Briefs of amici curiae urging reversal were filed for the National Association of Securities and Commercial Law Attorneys by Kevin P. Roddy, G. Robert Blakey, Patrick E. Cafferty, Bryan L. Clobes, and Jonathan W. Cuneo; and for Plaintiffs’ Executive Committee, MDL No. 1069, et al. by Richard B. McNamara, Gregory A. Holmes, Stephanie A. Bray, Martin J. Oberman, Alice W. Ballard, Michael M. Baylson, Charles Barnhill, Jr., Judson Miner, and Edward R. Garvey. Briefs of amici curiae urging affirmance were filed for the National Association of Manufacturers by Alfred W. Córtese, Jr., Daniel I. Prywes, Michael F. Wasserman, Jan S. Amundson, and Quentin Riegel; for the National Hockey League by Michael A. Cardozo, Steven C. Krane, and William L. Daly; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp. Philip Allen Lacovara, Evan M. Tager, and Phillip E. Stano filed a brief for the American Council of Life Insurance et al. as amici curiae. Justice Breyer delivered the opinion of the Court. The petition in this case asked us to consider two aspects of “statute of limitations” law. One concerns the date upon which a civil action accrues under the Racketeer Influenced and Corrupt Organizations Act and the limitations period starts to run. The other concerns “fraudulent concealment,” a doctrine that extends the time for a plaintiff to file suit. In respect to the first, we focus upon, and disapprove, an accrual rule followed in the Third Circuit called the “last predicate act” rule. In respect to the second, we hold that a plaintiff may not rely upon “fraudulent concealment” unless he has been reasonably diligent in trying to discover his cause of action. I The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §§ 1961-1968, among other things, makes it a crime “to conduct” an “enterprise’s affairs through a pattern of racketeering activity.” § 1962(c). The phrase “racketeering activity” is a term of art defined in terms of activity that violates other laws, including more than 50 specifically mentioned federal statutes, which forbid, for example, murder-for-hire, extortion, and various kinds of fraud. § 1961(1). The word “pattern” is also a term of art defined to require “at least two acts of racketeering activity,. .. the last of which occurred within ten years ... after the commission of a prior act of racketeering activity.” § 1961(5). A special RICO provision — commonly known as civil RICO — permits “[a]ny person injured in his business or property by reason of a violation” of RICO’s criminal provisions to recover treble damages and attorney’s fees. § 1964(c). RICO does not say what limitations period governs the filing of civil RICO claims. But in Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 156 (1987), this Court held that civil RICO actions are subject to the 4-year limitations period contained in § 4B of the Clayton Act (Antitrust), as added by 69 Stat. 283, and as amended, 15 U. S. C. § 15b — the statute of limitations that governs private civil antitrust actions seeking treble damages; Marvin and Mary Klehr, the petitioners here, are dairy farmers. They filed this civil RICO action on August 27, 1993, claiming that A. O. Smith Corporation and A. O. Smith Harvestore Products, Inc. (whom we shall simply call “Harvestore”), had committed several acts of mail and wire fraud, 18 U. S. C. §§ 1341, 1343, thereby violating RICO and causing them injury. Their injury, they said, began in 1974, when Harvestore sold them a special “Harvestore” brand silo, which they used for storing cattle feed. The Klehrs alleged that they bought the silo in reliance on Harvestore’s representations, made through advertisements and a local dealer, that the silo would limit the amount of oxygen in contact with the silage, thus preventing moldy and fermented feed, and thereby producing healthier cows, more milk, and higher profits. The representations, they claim, were false; the silo did not keep oxygen away from the feed, the feed became moldy and fermented, the cows ate the bad feed, and milk production and profits went down. They add that Harvestore committed other acts — consisting primarily of additional representations made to them and to others and sales made to others — over a period of many years after 1974. Harvestore, pointing out that the Klehrs had filed suit almost 20 years after they had bought the silo, moved to dismiss the lawsuit on the ground that the limitations period had long since run. The Klehrs could not file suit, Harvestore said, unless their claim had accrued within the four years prior to filing, i. e., after August 25, 1989, or unless some special legal doctrine nonetheless tolled the running of the limitations period or estopped Harvestore from asserting a statute of limitations defense. See Holmberg v. Armbrecht, 327 U. S. 392, 396-397 (1946); Bailey v. Glover, 21 Wall. 342, 349-350 (1875); Cada v. Baxter Healthcare Corp., 920 F. 2d 446, 450-451 (CA7 1990), cert. denied, 501 U. S. 1261 (1991). The Klehrs responded by producing evidentiary material designed to support a legal justification for the late filing. Essentially they claimed that Harvestore had covered up its fraud — preventing them from noticing the silo’s malfunction — for example, by means of an unloading device that hid the mold by chopping up the feed instantly as it emerged; through continued dealer misrepresentations; with advertisements that tried to convince farmers that warm, brown, molasses-smelling feed was not fermented feed, but good feed; and even by hanging on the silo itself a plaque that said: “DANGER DO NOT ENTER NOT ENOUGH OXYGEN TO SUPPORT LIFE” Not until 1991, say the Klehrs, did they become sufficiently suspicious to investigate the silo, at which time, by opening the silo wall and chopping through the feed with an ice chisel, they discovered “ ‘mold hanging all over the silage.’ ” Brief for Petitioners 16. The District Court, after examining the Klehrs’ evidence, found their lawsuit untimely. The Eighth Circuit affirmed the dismissal, and said that a civil RICO action accrues “ ‘as soon as the plaintiff discovers, or reasonably should have discovered, both the existence and source of his injury and that the injury is part of a pattern.’ ” 87 F. 3d 231, 238 (1996) (quoting Association of Commonwealth Claimants v. Moylan, 71 F. 3d 1398, 1402 (CA8 1995)). After examining the Klehrs’ evidence de novo, the Circuit held that they failed to satisfy the standard. It said they had suffered “one single, continuous injury . . . sometime in the 1970s”; and that they should have discovered “the existence and source of [their] injury,” as well as any related “pattern,” well before August 1989. 87 F. 3d, at 239. The Circuit refused to find “fraudulent concealment” because, among other things, the Klehrs had not been sufficiently “diligen[t].” Id., at 238, 239, n. 11. We granted certiorari in this case to consider the Klehrs’ claim in light of a split of authority among the Courts of Appeals. Two other Circuits, like the Eighth Circuit here, have applied forms of an “injury and pattern discovery” civil RICO accrual rule. Bivens Gardens Office Building, Inc. v. Barnett Bank, 906 F. 2d 1546, 1554-1555 (CA11 1990), cert. denied, 500 U. S. 910 (1991); Bath v. Bushkin, Gaims, Gaines & Jonas, 913 F. 2d 817, 820 (CA10 1990). Other Circuits have applied forms of an “injury discovery” rule, i. e., without the “pattern.” See Grimmett v. Brown, 75 F. 3d 506, 511 (CA9 1996), cert. dism’d as improvidently granted, 519 U. S. 233 (1997); McCool v. Strata Oil Co., 972 F. 2d 1452, 1464-1465 (CA7 1992); Rodriguez v. Banco Central Corp., 917 F. 2d 664, 665-666 (CA1 1990); Bankers Trust Co. v. Rhoades, 859 F. 2d 1096, 1102 (CA2 1988), cert. denied, 490 U. S. 1007 (1989); Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., 828 F. 2d 211, 220 (CA4 1987); see also Riddell v. Riddell Washington Corp., 866 F. 2d 1480, 1489-1490 (CADC 1989) (assuming, but not deciding, that injury discovery rule applies). One court, the Third Circuit, has applied a “last predicate act” rule, which we shall discuss below. We also agreed to decide the Klehrs’ argument that “reasonable diligence” is not a necessary component of the doctrine of “fraudulent concealment.” For reasons we shall describe, we affirm the judgment of the Court of Appeals. II A We shall first discuss the Third Circuit’s accrual rule — the “last predicate act” rule — for it is the only accrual rule that can help the Klehrs. Like the Eighth Circuit, the Third Circuit believes that the limitations period starts to run when a plaintiff knew or should have known that the RICO claim (including a “pattern of racketeering activity”) existed, but the Third Circuit has added an important exception, which it states as follows: “[If], as a part of the same pattern of racketeering activity, there is further injury to the plaintiff or further predicate acts occur, . . . the accrual period shall run from the time when the plaintiff knew or should have known of the last injury or the last predicate act which is part of the same pattern of racketeering activity. The last predicate act need not have resulted in injury to the plaintiff but must be part of the same pattern.” Keystone Ins. Co. v. Houghton, 863 F. 2d 1125, 1130 (1988). For purposes of assessing the rule’s lawfulness, we assume, as do the Klehrs, that this rule means that as long as Harvestore committed one predicate act within the limitations period (i. e., the four years preceding suit), the Klehrs can recover, not just for any added harm caused them by that late-committed act, but for all the harm caused them by all the acts that make up the total “pattern.” We also assume that they can show at least one such late-committed act. Finally, we note that the point of difference between the Third Circuit and the other Circuits has nothing to do with the plaintiff’s state of mind or knowledge. It concerns only the accrual consequences of a late-committed act. Consequently, we can consider the merits of the rule on the simplifying assumption that the plaintiff is perfectly knowledgeable. We conclude that the Third Circuit’s rule is not a proper interpretation of the law. We have two basic reasons. First, as several other Circuits have pointed out, the last predicate act rule creates a limitations period that is longer than Congress could have contemplated. Because a series of predicate acts (including acts occurring at up to 10-year intervals) can continue indefinitely, such an interpretation, in principle, lengthens the limitations period dramatically. It thereby conflicts with a basic objective — repose—that underlies limitations periods. See Wilson v. Garcia, 471 U. S. 261, 271 (1985) (citing Adams v. Woods, 2 Cranch 336, 342 (1805)); Crown, Cork & Seal Co. v. Parker, 462 U. S. 345, 352 (1983). Indeed, the rule would permit plaintiffs who know of the defendant’s pattern of activity simply to wait, “sleeping on their rights,” ibid., as the pattern continues and treble damages accumulate, perhaps bringing suit only long after the “memories of witnesses have faded or evidence is lost,” Wilson, supra, at 271. We cannot find in civil RICO a compensatory objective that would warrant so significant an extension of the limitations period, and civil RICO’s further purpose — encouraging potential private plaintiffs diligently to investigate, see Malley-Duff, 483 U. S., at 151—suggests the contrary. We recognize that RICO’s criminal statute of limitations runs from the last, i. e., the most recent, predicate act. But there are significant differences between civil and criminal RICO actions, and this Court has held that criminal RICO does not provide an apt analogy. Id., at 155-156 (declining to apply criminal RICO’s 5-year statute of limitations to civil RICO actions and noting “competing equities unique to civil RICO actions or, indeed, any other federal civil remedy”). Second, the Third Circuit rule is inconsistent with the ordinary Clayton Act rule, applicable in private antitrust treble damages actions, under which “a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff’s business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U. S. 321, 338 (1971); Connors v. Hallmark & Son Coal Co., 935 F. 2d 336, 342, n. 10 (CADC 1991); 1 C. Corman, Limitation of Actions § 6.5.5.1, p. 449 (1991) (hereinafter Corman); 2 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 338b, p. 145 (rev. ed. 1995) (hereinafter Areeda). We do not say that a pure injury accrual rule always applies without modification in the civil RICO setting in the same way that it applies in traditional antitrust eases. For example, civil RICO requires not just a single act, but rather a “pattern” of acts. Furthermore, there is some debate as to whether the running of the limitations period depends on the plaintiff’s awareness of certain elements of the cause of action. As we said earlier, however, for purposes of evaluating the Third Circuit’s rule we can assume knowledgeable parties. Hence the special problems associated with a discovery rule, see Part II — B, infra, are not at issue. And we believe, in these circumstances, the Clayton Act analogy is helpful. In Malley-Duff, this Court indicated why the analogy is useful. It concluded “that there is a need for a uniform statute of limitations for civil RICO, that the Clayton Act clearly provides a far closer analogy than any available state statute, and that the federal policies that lie behind RICO and the practicalities of RICO litigation make the selection of the 4-year statute of limitations for Clayton Act actions . . . the most appropriate limitations period for RICO actions.” 483 U. S., at 156 (citing 15 U. S. C. § 15b). The Court left open the accrual question. But it did not rule out the use of a Clayton Act analogy. As the Court has explained, Congress consciously patterned civil RICO after the Clayton Act. 483 U. S., at 150-151 (comparing 15 U. S. C. § 15(a) with 18 U. S. C. § 1964(c)); see also Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 489 (1985). And by the time civil RICO was enacted, the Clayton Act’s accrual rule was well established. See Crummer Co. v. DuPont, 223 F. 2d 238, 247-248 (CA5), cert. denied, 350 U. S. 848 (1955); Foster & Kleiser Co. v. Special Site Sign Co., 85 F. 2d 742, 750-751 (CA9 1936), cert. denied, 299 U. S. 613 (1937); Bluefields S. S. Co. v. United Fruit Co., 243 F. 1, 20 (CA3 1917). The Clayton Act helps here because it makes clear precisely where, and how, the Third Circuit’s rule goes too far. Antitrust law provides that, in the case of a “continuing violation,” say, a price-fixing conspiracy that brings about a series of unlawfully high priced sales over a period of years, “each overt act that is part of the violation and that injures the plaintiff,” e. g., each sale to the plaintiff, “starts the statutory period running again, regardless of the plaintiff’s knowledge of the alleged illegality at much earlier times.” 2 Areeda ¶ 338b, at 145 (footnote omitted); see also Zenith, supra, at 338; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481, 502, n. 15 (1968); DXS, Inc. v. Siemens Medical Systems, Inc., 100 F. 3d 462, 467 (CA6 1996). But the commission of a separate new overt act generally does not permit the plaintiff to recover for the injury caused by old overt acts outside the limitations period. Zenith, supra, at 338; Pennsylvania Dental Assn. v. Medical Serv. Assn., 815 F. 2d 270, 278 (CA3), cert. denied, 484 U. S. 851 (1987); Hennegan v. Pacifico Creative Serv., Inc., 787 F. 2d 1299, 1300 (CA9), cert. denied, 479 U. S. 886 (1986); National Souvenir Center v. Historic Figures, Inc., 728 F. 2d 503, 509 (CADC), cert. denied sub nom. C. M. Uberman Enterprises, Inc. v. Historic Figures, Inc., 469 U. S. 825 (1984); Imperial Point Colonnades Condominium, Inc. v. Mangurian, 549 F. 2d 1029, 1034-1035 (CA5 1977); Crummer Co., supra, 247-248. Cf. 2 Areeda ¶ 338b, at 149. Similarly, some Circuits have adopted a “separate accrual” rule in civil RICO cases, under which the commission of a separable, new predicate act within a 4-year limitations period permits a plaintiff to recover for the additional damages caused by that act. But, as in the antitrust cases, the plaintiff cannot use an independent, new predicate act as a bootstrap to recover for injuries caused by other earlier predicate acts that took place outside the limitations period. See, e. g., Grimmett, 75 F. 3d, at 512-514; McCool v. Strata Oil Co., 972 F. 2d, at 1465-1466, and n. 10; Bivens Gardens Office Building, Inc. v. Barnett Bank, 906 F. 2d, at 1552, n. 9; State Farm Mut. Auto. Ins. Co. v. Ammann, 828 F. 2d 4, 5 (CA9 1987) (Kennedy, J., concurring). But see Bingham v. Zolt, 66 F. 3d 553, 560 (CA2 1995) (citing Bankers Trust, 859 F. 2d, at 1103). Thus, the Klehrs may point to new predicate acts that took place after August 1989, such as sales to other farmers or the printing of new Harvestore advertisements. But that fact does not help them, for, as the Court of Appeals pointed out, they have not shown how any new act could have caused them harm over and above the harm that the earlier acts caused. 87 F. 3d, at 239. Nor can the presence of the new act help them recover for the injuries caused by pre-1989 acts, for it is in this respect that we find the Third Circuit’s rule incorrect. Petitioners also point to Zenith, a case in which this Court considered antitrust damages that were so “speculative” or “unprovable,” 401 U. S., at 339, at the time of a defendant’s unlawful act (and plaintiff’s initial injury) that to follow the normal accrual rule (starting the limitations period at the point the act first causes injury) would have left the plaintiff without relief. This Court held that, in such a case, a claim for the injuries that had been speculative would accrue when those injuries occurred, even though the act that caused them had taken place more than four years earlier. Id., at 339-340. This case does not help the petitioners here, however, for their injuries — the harm to their farm — have always been specific and calculable. B We recognize that our holding in Part II-A does not resolve other conflicts among the Circuits. For' example, the Circuits have applied “discovery” accrual rules, which extend accrual periods for plaintiffs who could not reasonably obtain certain key items of information. The use of a discovery rule may reflect the fact that a high percentage of civil RICO cases, unlike typical antitrust cases, involve fraud claims. See Sedima, supra, at 499, n. 16 (most civil RICO claims involve underlying fraud offense); 1 A. Mathews, A. Weissman, & J. Sturc, Civil RICO Litigation, p. 1-6 (2d ed. 1992) (citing Report of the Ad Hoc Civil RICO Task Force of the ABA Section of Corporation, Banking and Business Law 243 (1985)) (as of 1985, approximately 90% of civil RICO cases resulting in a published decision involved mail, wire, or securities fraud as a predicate offense); cf. Connors, 935 F. 2d, at 342 (federal courts generally apply discovery accrual rule when statute does not call for a different rule); 1 Corman § 6.5.5.1, at 449 (same). Moreover, different Circuits have applied discovery accrual rules that differ, one from the other, in important ways. Compare, e. g., Bankers Trust, supra, at 1103 (civil RICO cause of action accrues when the plaintiff discovers or should have discovered his injury), with 87 F. 3d, at 238 (civil RICO cause of action accrues when, in addition, plaintiff discovers or should have discovered the “source” of injury and a “pattern”). We further realize that, contrary to our assumption in Part II-A, supra (where we discussed a legal issue in respect to which knowledge was irrelevant), the Klehrs did claim that they lacked knowledge of the faulty silo — the “source” of their injury. But that particular “lack of knowledge” claim does not require us to consider the various “discovery rule” differences among the Circuits, because the Klehrs failed the “knowledge” test that favors them the most — the Eighth Circuit’s “injury plus source plus pattern” rule. That rule would have found the Klehrs’ action timely had it not been the case that the Klehrs reasonably “should have discovered” all of those elements prior to 1989. 87 F. 3d, at 239. If the Klehrs cannot fit their case through the Eighth Circuit’s larger hole, they cannot squeeze it through a smaller one. In addition, the major difference among the Circuits— whether a discovery rule includes knowledge about a “pattern” — is clearly not at issue here. Harvestore marketed and sold its “oxygen-limiting” silos for many years before the Klehrs purchased theirs, and the Klehrs have not claimed lack of knowledge of a “pattern.” Nor has anyone argued any other legal differences among the Circuits’ various tests that would affect the outcome in this case. In these circumstances, we believe we should not consider differences among the various discovery accrual rules used by the Circuits. The legal questions involved may be subtle and difficult. Compare id., at 238 (claim accrues with discovery of existence and source of injury, plus pattern), with Bivens Gardens, supra, at 1554 (claim accrues with discovery of injury and pattern); see also Cada, 920 F. 2d, at 451 (describing differences among various discovery rules and doctrines of “equitable tolling” and “equitable estoppel”). And the facts of this case do not force focused argument as to how the traditional Clayton Act “injury” accrual rule, principles of equitable tolling, and doctrines of equitable estoppel should interact in circumstances where the application of one, or another, of these different limitations doctrines would make a significant legal difference. To say this is not, as the concurrence claims, to advocate a “mix-and-match” statute of limitations theory. Post, at 200, n. 3. Rather, it is to recognize that the Clayton Act’s express statute of limitations does not necessarily provide all the answers. We shall, at the very least, wait for a case that clearly presents these or related issues, providing an opportunity for full argument, before we attempt to resolve them. Finally, the Klehrs have asked us to review the Eighth Circuit’s application of its rule in this case. Doing so would involve examining an evidentiary record of several thousand pages to determine the validity of the independent conclusion of each of two lower courts that the Klehrs should reasonably have discovered the silo’s flaws before 1989 (and that a reasonable factfinder could not conclude to the contrary). That conclusion is highly fact based, depending not only upon how much mold the Klehrs noticed in their silage and when, but also upon such matters as the effect of the Klehrs’ failure to consult the herd performance records they were continu-. ously sent, and whether their having done so would have led them to tell veterinarians a more revealing story, to question Harvestore’s representatives more fully, or to investigate the silo sooner. See 87 F. 3d, at 234. We have no reason to believe that there is any very obvious or exceptional error below. And our writ of certiorari commits us to decide only the purely legal question whether or not a claim accrues “where the Respondent continues to commit predicate acts” in the 4-year period immediately preceding suit. Pet. for Cert. i. We have answered that question in Part II-A. And we shall not go beyond the writ’s question to reexamine the fact-based rule-application issue that the Klehrs now raise, and which the Eighth Circuit decided in Harvestore’s favor. Ill Our writ of certiorari contained one further question, namely, whether “affirmative continuing acts of fraud . . . coupled with active cover up of the fraud, act to equitably toll the statute of limitations ... whether or not Petitioners have exercised reasonable diligence to discover their claim.” Ibid. (emphasis added). This question refers to the doctrine of “fraudulent concealment,” which some courts have said “equitably tolls” the running of a limitations period, see, e. g., Grimmett, 75 F. 3d, at 514, while other courts have said it is a form of “equitable estoppel,” see, e. g., Wolin v. Smith Barney Inc., 83 F. 3d 847, 852 (CA7 1996). Regardless, the question presented here focuses upon a relevant difference among the Circuits in respect to the requirement of “reasonable diligence” on the part of the plaintiff. Some Circuits have held that when a plaintiff does not, in fact, know of a defendant’s unlawful activity, and when the defendant takes “affirmative steps” to conceal that unlawful activity, those circumstances are sufficient to toll the limitations period (or to “estop” the defendant from asserting a limitations defense) irrespective of what the plaintiff should have known. See, e. g., id., at 852-853. Other courts have held that a plaintiff who has not exercised reasonable diligence may not benefit from the doctrine. See, e. g., Wood v. Carpenter, 101 U. S. 135, 143 (1879); Bailey, 21 Wall., at 349-350; J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F. 3d 1245, 1252-1255 (CA1 1996) (diligence required for fraudulent concealment under federal law); Urland v. Merrell-Dow Pharmaceuticals, Inc., 822 F. 2d 1268, 1273-1274 (CA3 1987) (same with respect to Pennsylvania law); see also 2 Corman § 9.7.1, at 56-57, 60-61, 64-66. We limit our consideration of the question to the context of civil RICO. In that context, we conclude that “reasonable diligence” does matter, and a plaintiff who is not reasonably diligent may not assert “fraudulent concealment.” We reach this conclusion for two reasons. First, in the related antitrust context, where the “fraudulent concealment” doctrine is invoked fairly often, relevant authority uniformly supports the requirement. Professor Areeda says, for example, that “[t]he concealment requirement is satisfied only if the plaintiff shows that he neither knew nor, in the exercise of due diligence, could reasonably have known of the offense.” 2 Areeda ¶ 338, at 152; see also I. Scher, Antitrust Adviser § 10.27, p. 10-62 (4th' ed. 1995). We have found many antitrust cases that say the same, and none that says the contrary. See, e. g., Conmar Corp. v. Mitsui & Co., 858 F. 2d 499, 502 (CA9 1988), cert. denied sub nom. VSL Corp. v. Conmar Corp., 488 U. S. 1010 (1989); Texas v. Allan Constr. Co., 851 F. 2d 1526, 1533 (CA5 1988); Pinney Dock & Transport Co. v. Penn Central Corp., 838 F. 2d 1445, 1465 (CA6), cert. denied sub nom. Pinney Dock & Transport Co. v. Norfolk & Western R. Co., 488 U. S. 880 (1988); New York v. Hendrickson Bros., Inc., 840 F. 2d 1065, 1083 (CA2), cert. denied, 488 U. S. 848 (1988); Berkson v. Del Monte Corp., 743 F. 2d 53, 56 (CA1 1984), cert. denied, 470 U. S. 1056 (1985); Charlotte Telecasters, Inc. v. Jefferson-Pilot Corp., 546 F. 2d 570, 574 (CA4 1976). Second, those courts that do not require “reasonable diligence” have said that the “fraudulent concealment” doctrine seeks to punish defendants for affirmative, discrete acts of concealment; the behavior of plaintiffs is consequently irrelevant. See Wolin, supra, at 852; Robertson v. Seidman & Seidman, 609 F. 2d 583, 593 (CA2 1979); cf. Urland, supra, at 1280-1281 (Becker, J., dissenting). Whether or not that is so in the legal contexts at issue in those cases (which were not antitrust cases), it is not so in respect either to antitrust or to civil RICO. Rather, in both of those latter contexts private civil actions seek not only to compensate victims but also to encourage those victims themselves diligently to investigate and thereby to uncover unlawful activity. See Malley-Duff, 483 U. S., at 151. That being so, we cannot say that the “fraudulent concealment” is concerned only with the behavior of defendants. For that reason, and in light of the consensus of authority, we conclude that “fraudulent concealment” in the context of civil RICO embodies a “due diligence” requirement. In their brief on the merits, petitioners have asked us to examine whether the Eighth Circuit properly applied the “due diligence” requirement to the evidentiary Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
songer_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. McREYNOLDS v. NATIONAL WOODWORKING CO., Inc. Court of Appeals of District of Columbia. Submitted March 8, 1928. Decided May 7, 1928. No. 4582. 1. Contracts @=205 — Guaranty to lay linoleum on concrete floor in satisfactory workmanlike manner, after recommending such covering, constituted guaranty to lay it under existing conditions. Where person making estimate for remodeling automobile showroom recommended laying of linoleum on concrete floor, he was, in absence of fraud or concealment, charged with notice of conditions present, and guaranty to lay linoleum in a satisfactory workmanlike manner constituted guaranty to lay it under conditions then existing. 2. Contracts @=83 — Failure to complete contract In accordance with guaranty constitutes failure of consideration for note conditioned on guaranty. A failure to complete contract to lay linoleum in a satisfactory workmanlike manner under existing conditions constitutes a failure of consideration for note executed on condition of continuance of such original guaranty. 3. Evidence @=508 — Expert testimony to establish fact that linoleum could not be laid successfully under circumstances in accordance with guaranty held erroneously excluded. In action to recover on note executed in consideration of completion of contract to lay linoleum in satisfactory workmanlike manner, refusal to admit expert testimony to establish fact that linoleum could not be successfully laid on concrete floor resting on ground and without ventilation held erroneous, since, if it appeared as a fact that such a condition was present and plaintiff could have discovered it, plaintiff would be charged with notice of its existence. 4. Bills and notes @=451(1) — Promissory note at suit of original payee is subject to defenses available against enforcement of written contracts (Code, § 1332). No particular sanctity attaches to a promis- ' sory note, and it is subject at suit of original payee to any of defenses available against enforcement of written contracts in accordance with provisions of Code, § 1332. Appeal from the Supreme Court of the District of Columbia. Suit by the National Woodworking Company, Incorporated, against William E. Mc-Reynolds. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial. W. J. Lambert, R. H. Yeatman, A. M. Schwartz, and W. N. Tobriner, all of Washington, D. C., for appellant. D. T. Wright and Philip Ershler, both of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. VAN ORSDEL, Associate Justice. Appellee, National Woodworking Company, •brought suit against appellant in the Supreme Court of the District of Columbia to recover on a note for the sum of $1,500, with interest, alleging that the note was overdue and unpaid. Defendant filed three pleas, substantially as follows: (1) That he was not indebted in manner and form alleged. (2) That plaintiff contracted with defendant to remodel his automobile showroom vfor a consideration of $4,200, which included the laying of linoleum on the concrete floor; that plaintiff had recommended to defend•ant the use of linoleum, and agreed to lay it in a first-class workmanlike manner; that defendant paid plaintiff various sums on account of the contract until it was reduced to $1,500, represented by the note sued upon; that plaintiff failed to perform his contract in respect of laying the linoleum as agreed, in that the linoleum, after being laid, broke away from the concrete; that plaintiff then agreed that defendant should withhold the sum of $1,500, the cost of laying the linoleum, and defendant should deliver to plaintiff his promissory not? in that amount, payable one month after date, in consideration of which defendant agreed to immediately proceed to lay said linoleum as agreed upon, to the full satisfaction of the defendant; that the note was given by defendant on the assurance of plaintiff that the linoleum would be laid “in a first-class workmanlike manner, and in such a way as to fully satisfy” defendant; and that defendant failed to carry out his agreement in this respect. (3) A set-off in the sum of $2,000 as damages for failure to lay the floor in the manner called for by the original contract. To the plea of set-off plaintiff pleaded a general denial. It appears from the reeord that plaintiff company, entered into a contract with defendant to remodel defendant’s automobile showroom for the sum of $4,200, which, among other things, included the laying of linoleum over a concrete floor; that when the work was completed the linoleum would not adhere to the floor, but crumpled up, overlapped, and was unsightly, and of no use to the defendant; that plaintiff company made repeated efforts to put the floor in condition, meeting with failure in each instance; that it was during these proceedings, and while plaintiff was attempting to complete the work, that a settlement was had, resulting in the giving of the $1,500 note, upon the alleged condition that it should only be paid in the event that the work was completed in a satisfactory workmanlike manner. It appears from the testimony of the defendant that, when the plans for the improvements were completed, plaintiff company requested that it be given an opportunity to submit a bid upon the work. This was granted. When Mr. Beetham, president of the company, was inspecting the premises, preliminary to submitting an estimate for the work, he suggested that the concrete floor in the building could be covered with linoleum, assuring defendant “that they could lay linoleum over the witness’ floor; that they have laid it in different places and that it has always been satisfactory; that witness said that he was a little leery of linoleum, and Mr. Beetham replied that he need not be leery of it, because the plaintiff would stand behind it, and that is why the witness accepted the estimate.” This testimony of the defendant was not denied by Mr. Beetham, though he appeared as a witness in the case. We think the case centers around this recommendation and guaranty, made by Mr. Beetham as president of plaintiff company. It is now contended on the part of the plaintiff that the reason for. the failure to satisfactorily lay the linoleum was due to the collection under it of moisture from the concrete, disintegrating and loosening the cement used to hold the linoleum in place; that the collection of the moisture was due to the fact that the cement was laid upon the ground, with no ventilation under it, and to the collection of moisture through seepage from the alley adjacent to the building; and that the guaranty of the plaintiff company did not contemplate or take into consideration these unforeseen conditions. Objection was interposed, and sustained, to defendant’s offer to prove by an expert witness that dampness would collect on a concrete floor covered with linoleum, when the floor is laid upon the ground with no air sid ace under it. The court, sustaining the objection to this evidence, said: “In my view of the case, I do not believe that these contractors were obliged to know anything about the configuration of the ground over there in that neighborhood. It is not a part of their job. ‘There is a floor. Lay linoleum on it.’ That is all they are concerned with, unless, as I say, something sticks right out and hits them in the face, that they ought to pay attention to.” It is urged by counsel for plaintiff, and was so held by the court below, that the defense of failure of consideration of the note is not available under defendant’s second plea. The court submitted the case to the jury upon the sole ground of whether or not the linoleum was laid in a first-class workmanlike manner, instructing the jury that,1 if they so found, then they could not allow any set-off, “and must return a verdict for the full $1,500, the amount of the note, with interest at 6 per cent, from April 8, 1925. The plaintiff was not responsible for the floor on which the linoleum was laid; and if you And that the linoleum was laid in a first-class workmanlike manner, and became unsatisfactory because moisture came through the floor, then you cannot allow a set-off.” The court summarized its charge in the following language: “The plaintiffs are entitled to recover on this note. So, when you come to consider the matter, you have got to start out with the proposition that, so far as the note itself is concerned, the plaintiff is entitled to $1,500, with interest. Then you come to the question of whether or not this linoleum was laid in a first-class workmanlike manner, and whether the only reason why it buckled, and did these other things, was due to this water. If it was due to the water, then that is something the plaintiffs are not responsible for.” We are of opinion that the whole theory upon which the case was submitted to the jury is erroneous, both on the law and the evidence. When Beetham, the president of the company, as a basis of plaintiff’s estimate on the work, recommended to defendant the laying of the linoleum on the concrete floor, and defendant expressed, a doubt as to whether this could be successfully done, plaintiff, in the absence of fraud or concealment by defendant, was charged with notice of the conditions present — whether the floor was laid on the ground or was ventilated under, and whether the topographical conditions outside were such as to probably produce moisture when the linoleum was laid. These were conditions of which plaintiff company was charged with' notice on taking the contract; and its conceded, guaranty to lay the linoleum in a satisfactory workmanlike manner was a guaranty to so lay it under the conditions there existing; and the failure to complete the contract as so made, if the original guaranty be found to have been continued as a condition of giving the note, constitutes a failure of consideration for the note. In this view of the ease, it was error to refuse to admit expert testimony to establish the fact that linoleum cannot be laid successfully upon a concrete floor that rests on the ground, and without ventilation under it. If it should appear as a fact that such a condition was present in this ease, and plaintiff’s agent by proper, inspection could have discovered it, plaintiff would be charged with notice of its existence. It was upon the recommendation of Mr. Beetham, president of plaintiff company, that defendant was induced to use linoleum. He had the right to assume that plaintiff’s president and contracting agent possessed full knowledge of the business in which plaintiff was engaged, and which held itself out to the public as a concern capable of performing work of the character defendant desired done in a satisfactory, skillful, and workmanlike manner. No particular sanctity attaches to a promissory note. It is subject, at the suit of the original payee, to any of the defenses available against the enforcement of written contracts. Section 1332 of the District Code provides: “Absence or failure of consideration is matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.” Tyler v. Mutual District Messenger Co., 17 App. D. C. 85, was an action on quantum meruit for work performed, in which the defendant interposed the plea of not indebted as alleged, and also pleaded a special contract and the failure of plaintiff to perform the contract as agreed, resulting in damage to defendant. The court, considering the evidence admissible under this plea, said: “As will be observed, the terms of the contract are not set forth, nor is it made apparent by the plea whether the alleged, breach of the contract is set up by way of set-off, or by way of recoupment or deduction. The plaintiff, however, joined issue upon all three of the pleas; and under the issue thus formed upon the third plea, or even under the general issue plea of not indebted as alleged, it was competent to the defendant to show by proof that the work and labor and services declared for by the plaintiff were done and supplied under a special contract, and that such work and services were so negligently and unskillfully done and performed as to be of little or no value to the defendant, or that the contract had been violated by the plaintiff to the injury of the defendant, and therefore the latter was entitled to a deduction of the damages thus occasioned by the breach by the plaintiff. This is now the settled principle, both in the English and American courts.” In Durant v. Murdock, 3 App. D. C. 114, defendant pleaded both failure of consideration and set-off to a declaration on a promissory note, and, while the plea of set-off was held barred by the statute of limitations, the court in its opinion said: “The failure of consideration, and the set-off pleaded by the appellant in defense of the suit, are entitled to more consideration from us. Failure of consideration is, of course, a good defense as against the payee in a promissory note; and a proper set-off is always, under existing law, properly pleadable in bar of a plaintiff’s demand.” In Withers v. Greene, 9 How. 220, 230, 13 L. Ed. 109, the court, reviewing a judgment on demurrer to a plea of failure of consideration said: “Where there has been a failure of consideration, total or partial, or a breach of warranty, fraudulent or otherwise, all or any of these facts may be relied pn in defense by a party, when sued upon such contracts, and that he shall not be driven to assert them, either for protection, or as a ground for compensation in a cross-action. * * * In the ease of Sill v. Rood, 15 Johns. [N. Y.], 230, which was an action on a promissory note given for the price of a chattel, the defendant was allowed, under the general issue, to show deceit in the sale. And it was holden, further, that a promissory note given for the price of a chattel represented to be valuable, when in truth it was of no value, is without consideration and void.” No objection was made by counsel for plaintiff by way of demurrer to the second plea, nor to the introduction of proof by defendant in support of the failure of consideration for the note. We think the plea is sufficient to raise this issue, and the case should have been submitted to the jury upon that theory. Nor are we concerned with the suggestion that the contract, upon which the alleged consideration for the note is based, is not binding on the company. It was made by an officer of the company, and we consider it immaterial whether it was made with or without direct authority from the company itself. The company was engaged in the contracting business. It held itself out as prepared to do this sort of business. It transacted its business through its officers, and defendant had the right to assume that the officer, the secretary of the company, with whom he dealt when the note was given, was authorized to act in the premises. Sueh authority will be presumed. The whole issue here is one of faet for the jury, under proper submission by the court, as to whether or not on the issue raised by defendant’s second plea, or indeed by the. plea of not indebted, there was a lack of .consideration for the note, and, if so, ■whether or not there was a total or partial lack of consideration. If, on retrial, the second plea should be regarded as insufficient to sustain the proof interposed in support of defendant’s case, it may be amended. The judgment is reversed, with costs, and the ease is remanded for a new trial. 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	E	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). J. T. MAJORS & SON, INC., Appellant, v. LIPPERT BROS., INC., Appellee. LIPPERT BROS., INC., Cross-Appellant, v. J. T. MAJORS & SON, INC., Cross-Appellee. Nos. 5957, 5958. United States Court of Appeals Tenth Circuit. Dec. 30, 1958. Leonard O. Thomas, Kansas City, Kan., and Maurice P. O’Keefe, Atchi-son, Kan. (Stanley, Schroeder, Weeks, Thomas & Lysaught, Kansas City, Kan., and O’Keefe, Root, McKelvy & O’Keefe, Atchison, Kan., on the brief), for appellant and cross-appellee. Leon Shipp, Oklahoma City, Okl. (Robert S. Johnson, Topeka, Kan., on the brief), for appellee and cross-appellant. Before BRATTON, Chief Judge, and PICKETT and BREITENSTEIN, Circuit Judges. BREITENSTEIN, Circuit Judge. Appellee-defendant, Lippert Bros., Inc., had the prime contract for the construction of an abbey at Atchison, Kansas, and made a subcontract with appellant-plaintiff, J. T. Majors & Sons, Inc., for the masonry work. Majors completed performance and brought suit alleging nonpayment for certain work done. Jurisdiction is based on diversity of citizenship. The first claim relates to the cleaning of interior masonry and the second claim to the cleaning of exterior masonry. As to each of these claims the trial court directed a verdict in favor of defendant Lippert. The third claim covering the alteration of anchor holes was submitted to the jury which allowed the plaintiff a recovery of $4,322.73. As to this claim Lippert through a third-party complaint asserted that the liability, if any, was that of Forburger Company, Inc. After verdict, the court on its own motion reduced the recovery to $1,688.80 and entered judgment for that amount. The issues under the third-party complaint were settled by agreement. The fourth claim involved the pointing of terrazzo and the jury allowed recovery. Here also there was a third-party complaint, this time alleging that the liability was that of Advance Terrazzo Co., Inc., and a settlement was made by agreement. Majors has appealed from the actions of the trial court in directing a verdict as to claims one and two and in reducing the jury verdict on claim three. Lip-pert filed a cross-appeal contending that there should be no recovery on the third claim but subsequently moved to dismiss that cross-appeal. The first two claims, which present the question of whether Majors is entitled to be paid for cleaning masonry, may be considered together. The subcontract provided that Majors, the subcontractor, was “to furnish labor to install masonry work as follows.” The itemization which follows contains 12 items with unit prices covering various types of brick, stone, tile, glass blocks, and granite. No reference is made to cleaning. The subcontract contains the common provision requiring extra work or changes to be agreed to in writing. The subcontractor agreed to be bound by all terms and conditions of the general contract. The specifications made a part of the prime contract had two provisions relating to cleaning. Before the execution of the subcontract the prime contractor had laid about 18,000 brick and between 4,000 and 4,500 feet of split-faced stone. The subcontractor cleaned this brick and stone as well as all masonry laid by it. The basis of its first two claims is that the subcontract required Majors to “install” but not to “clean,” and that the cleaning was done by it under an oral agreement with the prime contractor’s construction foreman. Lippert contends that the term “install” includes cleaning, that the construction superintendent had no authority to make any oral contract with Majors, and that the provisions of the subcontract requiring agreements for extra work or changes to be in writing precludes any such oral agreement. Majors, asserting that the subcontract had a latent ambiguity, offered evidence of precontract conversations tending to show an intent not to include cleaning. The court held that the contract was not ambiguous and rejected the offer. Majors also offered testimony as to the technical meaning of the term “install.” This was received together with rebutting evidence with the result that there was a confusing conflict from which the conclusion can be reasonably drawn that when masonry work is covered by a lump sum contract cleaning is included but when it is a unit contract cleaning is not included unless specified. Here we have a subcontract itemizing the work and providing for compensation on a unit basis. The reference to the general contract is unimportant. The obligation on the prime contractor to clean does not automatically fall on the subcontractor. It is significant that Majors cleaned the brick and cut stone that had been laid by the prime contractor before the execution of the subcontract. No possible interpretation of the itemizations contained in the subcontract required it to do so. The testimony of an official for Lippert that payment for such work was made under “negotiated” quantities is far from convincing. In the circumstances of this case it cannot be said with certainty what the parties meant by the use of the word “install.” The subcontract is ambiguous as the intention of the parties cannot be ascertained therefrom. In such a situation “the background against which the contract was executed and the circumstances attending its execution should be taken into consideration as an aid to the ascertainment of such intent.” The trial court erred in rejecting the evidence as to the preliminary negotiations between the parties. While the interpretation of contractual language is a question of law, in a situation such as this where meaning depends on extrinsic evidence, there may result a material conflict or the possibility of more than one reasonable inference, either of which could present a question of fact rather than law. We are unable to say whether on retrial such a factual issue will be presented. The trial court directed a verdict as to claims one and two on the ground that there was no showing of authority in Lippert’s construction superintendent to contract with Majors for the cleaning. The record shows that such superintendent, who had no superior officer in Kansas, hired, fired, directed, and paid the workers on the job. He ordered and. paid for certain supplies but his check-writing authority was limited. A vice-president of Lippert testified that the superintendent had no authority to bind Lippert either orally or in writing. The superintendent admittedly kept a record of the time spent by Majors in the cleaning operations but did not keep such records in regard to other work done by Majors. An offer of Majors to prove its oral contract with the superintendent for the cleaning was rejected on the ground that there was no proof of his authority to bind Lippert. An official of Majors testified that the superintendent was “in full charge” and was “the man we had to go to for everything.” Lippert knew that the cleaning work was being done as its vice-president testified that the cleaning of the brick and stone laid before Majors went on the job was paid for by “negotiated” quantities. Lippert did not notify Majors of any limitation on the superintendent’s authority. Lippert has acknowledged liability under the superintendent’s oral agreement for the alteration of the anchor holes. Certainly the evidence is sufficient to justify the reasonable inference that the superintendent had authority to bind his principal. The question of authority of an agent is ordinarily one of fact. Lippert insists that even assuming such authority the provisions of the subcontract precluding oral agreements for extra work or changes has the controlling effect of preventing recovery. Such a provision is valid but in the absence of the applicability of any statute of frauds it may be waived, modified or rescinded by a subsequent oral contract. While an intent to waive, modify or rescind must, be shown, that may be inferred from the actions of the parties. The conduct of Lippert was such as to permit the reasonable inference that it intended to waive or modify the contract provision on which it now relies. The question of intent is usually one of fact. It is settled law in Kansas that a principal cannot receive and retain the benefits of a transaction, and at the same time deny the authority of the agent to enter into that transaction. In the instant case Lippert knowingly permitted Majors to clean the masonry and accepted the benefits arising therefrom. If the subcontract did not require Majors to do that work, then the questions of waiver of the pertinent provisions of the written contract, apparent authority of the superintendent, existence and terms of an oral contract for cleaning, estoppel, ratification, and unjust enrichment may be pertinent. We can resolve none of them on the record now before us. The third claim related to the alteration of the anchor holes. The evidence was that in the construction of a stone wall of the type involved each stone must be fastened in the wall by means of metal rods. These rods are of two types known as “anchors” and “cramps.” The stones made available to Majors had holes for these rods but they were too small and were improperly shaped for the rods which were furnished. Majors was required to alter the holes so that the rods would fit. The difference between the parties is in the number of holes that had to be altered. The president of Majors testified that an average of three holes had to be altered on each of over 3,000 pieces of stone. The work was valued on a time basis plus certain overhead charges. Majors submitted an itemized bill to Lippert in the amount of $4,432.78. The jury returned a verdict on this claim in favor of Majors for $4,322.73. After the return of the verdict Lippert moved orally for judgment notwithstanding the verdict. There ensued a colloquy among ■court and counsel which added nothing to the clarification of any issue. The court announced an intent to reduce the verdict. Majors’ counsel then objected and asked time either to remit or to move for a new trial. This was denied. The court ordered that the verdict was reduced to $1,688.80. No ruling was made on Lippert’s oral motion. Thereafter each party moved for a new trial and each motion was denied. Lippert filed a cross-appeal on the recovery on this claim and has now moved to dismiss that cross-appeal. This eliminates any necessity for consideration of its motion for judgment notwithstanding the verdict. The trial court apparently was impressed by the facts that the third claim of the complaint referred only to anchors and the defense testimony was that 3,800 anchors were supplied for the job. The reduction was on the basis that recovery had to be limited to the amount which would compensate for the alteration of one hole per anchor. The third claim sought unliquidated damages for breach of contract. It is the function of the jury, and not the prerogative of the court, to determine the amount of damage and the determination of the jury, if based on substantial evidence or reasonable inference therefrom, must be upheld in the absence of an error of law or a showing of passion or prejudice. The third claim alleged oral employment for work in “cutting and straightening anchor holes on stone.” Lippert contends that this limits recovery to work done on anchor holes. The validity of such argument depends on the difference between a cramp and an anchor. Each is a device to hold a block of stone in place. A witness for Majors stated that a cramp “is just an anchor.” The stone foreman for Majors testified as to the necessity for alteration of the holes for both cramps and anchors. The record shows that about 2,600 cramps and 3,800 anchors were used. There is nothing to indicate that Lippert was misled by the reference to anchors in the complaint. The query is not how many anchors or cramps were used but how many holes had to be altered. As to this the evidence for Majors was that there were about 3,000 stones on which an average of three holes each had to be altered. The peremptory action of the trial court in reducing the verdict was improper. There was no claim of error of law or of passion and prejudice. If the court felt that the verdict was excessive the proper procedure was to afford the plaintiff an opportunity to make a remittitur if it desired and if it did not choose to do so, to grant a new trial. But the circumstances in this case did not justify even that action, There was substantial evidence to sustain the verdict and no errors of law occurred in the submission of the issue to the jury. The verdict must be reinstated, and judgment entered in accordance therewith. Forburger Company, Inc., a third-party defendant below, has filed a motion to dismiss the appeal as to it. The motion is not in order and cannot be considered as neither the appeal nor the cross-appeal designate Forburger as a party. The motion of Lippert to dismiss the cross-appeal is granted. As to the first and second claims set out in the complaint the judgment is reversed for further proceedings in accordance with the views stated herein. The judgment on the third claim is reversed with directions to enter judgment in conformity with the verdict of the jury. The judgment on the fourth claim is not questioned and is accordingly affirmed. Costs will be assessed against the appellee. . Hereinafter referred to as Lippert or as prime contractor. . ■ Hereinafter referred to as Majors or as subcontractor. . The provision is: “No extra work or changes under this contract will be recognized or paid for unless agreed to in writing by the Contractor [Lippert] before the work is done or the changes made. No oral agreements will be made by either party.” . As to stone work it provided: “The face of all stone work shall be cleaned upon completion, an approved cleaning compound being used. Acid shall not be used on cut stone work.” The requirement as to brick work was: “All brick work shall be thoroughly cleaned and pointed as directed by the Architect.” . Moore v. Jones, 10 Cir., 215 F.2d 719, 721, and Kansas authorities there cited. . United States v. Nickel, 10 Cir., 243 F.2d 924, 925. . Hawkins v. Frick-Reid Supply Corporation, 5 Cir., 154 F.2d 88, 89; 17 C.J.S. Contracts, § 617, p. 1284. Cf. Brown & Co. v. McGran, 14 Pet. 479, 493, 39 U.S. 479, 493, 10 L.Ed. 550; S. S. Kresge Co. v. Sears, 1 Cir., 87 F.2d 135, 140, 110 A.L.R. 583, certiorari denied 300 U.S. 670, 57 S.Ct. 512, 81 L.Ed. 876; United States v. Northern Pac. Ry. Co., 8 Cir., 188 F.2d 277, 280. . While Lippert may recognize liability under the one oral contract and deny liability in another instance on the ground of lack of authority, the acceptance of liability in one instance certainly affects reasonable belief in authority in another instance. . American Nat. Bank of Sapulpa, Okl. v. Bartlett, 10 Cir., 40 F.2d 21, 22. . See annotation in 66 A.L.R. 649, 662. Kansas follows this rule. See Bailey v. Norton, 178 Kan. 104, 283 P.2d 400, 403-405, citing 17 C.J.S. Contracts § 371(3), p. 850, and 9 Am.Jur. Building and Construction Contracts § 23, pp. 17-18. . Welton v. 40 East Oak St. Bldg. Corporation, 7 Cir., 70 F.2d 377, 378, certiorari denied Chicago Title & Trust Co. v. Welton, 293 U.S. 590, 55 S.Ct. 105, 79 L.Ed. 685; 88 C.J.S. Trial § 219, p. 502. . Bank of Lakin v. National Bank of Commerce of Kansas City, 57 Kan. 183, 45 P. 587. Sea also Adrian v. Elmer, 178 Kan. 242. 284 P.2d 599, 603; Sinclair Kefming Co. v. Vaughn, 135 Kan. 82, 9 P.2d 995, 996; Sheldon Petroleum Co. v. Empire Gas & Fuel Co., 112 Kan. 73, 209 P. 826, 830; Isaacs v. Jackson Motor Co., 108 Kan. 17, 193 P. 1081, 1082. . Lippert attempts to make much of an error in this bill. Such error was in a simple and obvious arithmetical computation. No one was misled or prejudiced by it. . There were disputes as to both the number of altered holes and as to the cost of alteration per hole. . U.S.Const. Amend. 7; Walker v. New Mexico and Southern Pacific Railroad Company, 165 U.S. 593, 596, 17 S.Ct. 421, 41 L.Ed. 837; Slocum v. New York Life Insurance Co., 228 U.S. 364, 385-386, 33 S.Ct. 523, 57 L.Ed. 879; Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 79 L.Ed. 603. . Webster’s New International Dictionary, 2d Ed., defines the word anchor as used in building thus: “A device, as a metal tie, for giving stability to one part of a structure by making it fast to another, as a beam to a wall, one wall to another, or (in this case specif, called cramp or cramp iron) a stone facing, as an ashlar, to rough masonry behind it.” The same dictionary defines cramp as: “A device, usually of iron bent at the ends or of dovetail form, used to hold together blocks of stone, timbers, etc.” . Kennon v. Gilmer, 131 U.S. 22, 29, 9 S.Ct. 696, 33 L.Ed. 110; Bucher v. Krause, 7 Cir., 200 F.2d 570, 588. Cf. Neese v. Southern Railway Co., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60. . Readnour v. Commercial Standard Insurance Company, 10 Cir., 253 F.2d 907, 908. . 28 U.S.C. § 2106; Marshall’s U. S. Auto Supply v. Cashman, 10 Cir., 111 F.2d 140, 141; Standard Oil Company v. Brown, 5 Cir., 238 F.2d 54, 56; Pettingill v. Fuller, 2 Cir., 107 F.2d 933, 936; Finn v. American Fire & Casualty Co., 5 Cir., 207 F.2d 113, 115; Moore’s Federal Practice 2d Ed. Vol. 6, § 59.15 (3), p. 3904. 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	F	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. HORIZON AIR INDUSTRIES, INC. d/b/a Horizon Air, Petitioner, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, Respondent, San Juan Airlines, Inc., Intervenor (Two Cases). Nos. 87-1429, 87-1747. United States Court of Appeals, District of Columbia Circuit. Argued May 3, 1988. Decided June 28, 1988. Marshall S. Sinick, with whom Scott T. Kragie and Stephen A. Alterman, Washington, D.C., were on the brief, for petitioner. Robert D. Young, Atty., Dept, of Transp., with whom B. Wayne Vance, General Counsel, Kenneth N. Weinstein, Deputy Asst. General Counsel and Thomas L. Ray, Atty., Dept, of Transp., Washington, D.C., were on the brief, for respondent. Robert B. Nicholson and Laura Heiser, At-tys., Dept, of Justice, Washington, D.C., also entered appearances for respondent. Aaron A. Goerlich, Eileen M. Gleimer and James M. Burger, Washington, D.C., were on the brief for intervenor, San Juan Airlines, Inc. Before EDWARDS and WILLIAMS, Circuit Judges, and WEIGEL , Senior District Judge. Of the U.S. District Court for the Northern District of California, sitting by designation pursuant to 28 U.S.C. § 294(d). Opinion for the Court filed by Circuit Judge WILLIAMS. WILLIAMS, Circuit Judge: We deal here with a vestige of the system of air transport regulation that prevailed from the passage of the Civil Aeronautics Act of 1938, Pub.L. No. 75-706, 52 Stat. 973 (1938), until the Airline Deregulation Act of 1978, Pub.L. No. 95-504, 92 Stat. 1705 (1978) (codified in scattered sections of 49 U.S.C.). The former allowed carriers to enter specific markets only on approval of the Civil Aeronautics Board and to charge only rates approved by the Board. For purely domestic interstate markets, deregulation eliminated government control over entry and prices, the architects expecting that open entry would drive rates to competitive levels. See Civil Aeronautics Board Practices and Procedures, Report of the Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary of the United States Senate, 94th Cong., 1st Sess. 62-63 (1975). But because foreign nations did not move with us to a system of open entry, Congress reserved for the Department of Transportation the task of selecting American carriers for routes that remained subject to entry control. See 49 U.S.C. § 1371 (1982) (governing issuance of certificates of public convenience and necessity); 49 U.S.C. § 1551(b)(1)(B) (1982) (transfer of functions of CAB); 49 U.S.C. § 1551(a) (1982) (eliminating domestic route and rate regulation). In January 1987 Canada and the United States agreed to allow one carrier from each nation to provide non-stop commuter-type service — in effect service with planes having 60 or fewer seats — between Seattle-Tacoma and Vancouver. This was to supplement the existing non-stop service in large commercial jets offered by United and Pacific Western. Horizon Air and San Juan Airlines applied for the United States slot. The Department initially opted for Horizon, but, characterizing the matter as a “very close case,” it cast its decision as an order to interested persons to show cause why it should not persevere in that view. Seattle-Vancouver Service Case, Dkt. No. 44716, Order 87-6-11 (June 5, 1987) (“Show Cause Order”), reprinted in Joint Appendix (“J.A.”) at 17-27. San Juan responded vigorously to the invitation; on the second round it prevailed, receiving exclusive authority for commuter service for a five-year period. Seattle-Vancouver Service Case, Dkt. No. 44716, Order 87-7-53 (July 22, 1987) (“Final Order”), reprinted in J.A. at 28-34. In its final decision the Department focused on San Juan’s “historic interest and presence” in the Seattle-Vancouver market, which had taken the form of providing one-stop service via Bellingham. Final Order, J.A. at 29. At the same time, it downgraded the importance that it had initially attached to Horizon’s superior “route integration” — i.e., its “behind service” between the gateway city, Seattle-Tacoma, and Portland and Eugene. Final Order, J.A. at 28-31. Finally, it accepted San Juan’s argument that its past practice of adding extra sections to popular flights offset the advantages of Horizon’s more diverse fleet of aircraft. Id. at 33. We will return to these matters in more detail in considering Horizon’s objections. Horizon identifies four faults in the decision, three substantive, one procedural. We consider each in turn, but reject them all. I. San Juan’s Historic Interest in the Market In its Final Order the Department noted that the successful applicant would have to fill a niche in a market dominated by the two larger carriers, and determined that San Juan’s store of good will in both cities and its “impressive” record as a competitor would give it significant advantages over Horizon, which would start from scratch in Vancouver. Id. at 29-30. These pluses, it thought, justified reversing its prior view, which had discounted San Juan’s position as “incumbent” in the Seattle-Vancouver market. The Department expressly disclaimed any reliance on the diversion of revenues that San Juan might suffer if Horizon were chosen. Id. at 33-34. Horizon’s objection to the Department’s reliance on San Juan’s past participation in the Seattle-Vancouver market has two related strands. First, citing the Department’s Notice of Proposed Rulemaking, Limited-Entry Markets ... Procedures and Criteria for Selecting Carriers (the “NPRM”), 50 Fed.Reg. 38,539 (1985), Horizon contends that the Department itself had ruled that incumbency or historic interest was a proper consideration only in the context of renewal applications. Horizon Brief at 23-26. We cannot agree. We note at the outset that literal incumbency could by definition be relevant only in the renewal context. Here the Department relied on a sort of quasi-incumbency — San Juan’s historic provision of service in a closely related market, that of one-stop service between the two cities. The record flatly contradicts Horizon’s theory that the Department explicitly disclaimed interest in incumbency outside the renewal context. It is quite true that in the NPRM the Department said: “This criterion [incumbency] has come into play only in the context of renewal applications.” 50 Fed.Reg. at 38,547 (emphasis added). Notice that even there the statement is only an empirical observation about past practice. More important, its final policy statement on the matter omitted any such limitation. There the Department simply stated affirmatively that the Department would apply a rebuttable presumption in favor of renewal applicants. See Final Rule and Policy Statement, Limited-Entry Markets ... Procedures and Criteria for Selecting Carriers, 51 Fed.Reg. 43,180, 43,187 (1986) (“Policy Statement” or “Statement”). (The full document is entitled “Final Rule and Policy Statement” only because it also contained rules setting five years as the duration of its certificates and requiring 90 days’ notice from carriers terminating service. See id. at 43,188. The Department expressly reserved its authority to change selection criteria case-by-case rather than by rulemaking. See NPRM, 50 Fed.Reg. at 38,539.) Thus Horizon could prevail on this contention only if it established that the Policy Statement’s reference to incumbency in the renewal context carried a negative implication that it should be excluded in all other contexts. Even then, the Department would be free to change views adopted in the Policy Statement so long as it adequately explained the shift. See Vietnam Veterans of America v. Secretary of the Navy, 843 F.2d 528, 537-38, 539 (D.C.Cir.1988). In any event, we think the Department was free to reject Horizon’s reading of its Statement. The Policy Statement explicitly leaves the door open to reliance on unmentioned factors: While these criteria represent the major decisional elements in most selection cases, there may be other factors which the Department will wish to consider, depending upon the particular circumstances of each proceeding. 51 Fed.Reg. at 43,187. The sentence is, to be sure, somewhat oddly located, tucked away in a discussion of one specific criterion (“Ability to Enter a Market Quickly”). But other clues confirm its evident meaning. Introducing its discussion of the criteria, the Statement says that the “major elements of consideration ... will include the factors listed below,” id. at 43,186 (emphasis added), leaving open the issue of exclusivity and suggesting that it might consider at least minor unlisted factors. Further, at its end the Statement says that “the views of civic parties have historically been afforded substantial weight ... and the Department fully intends to continue this policy.” Id. at 43,187. As the views of civic parties are not enumerated as selection criteria, the passage suggests non-exclusivity. But even assuming that the list were intended to be exclusive, we think the Department was entitled to read it as allowing consideration of quasi-incumbency in appropriate non-renewal cases. At least two reasons for favoring incumbents in the renewal context seem relevant to the quasi-incumbency situation as well: their track record suggests the likelihood of future success, and, because of their established reputation, the incremental costs of securing customers will be relatively low. It would seem a perverse reading of the Policy Statement to say that it disdained consideration of those features even in a case where they were logically just as relevant as in the core case explicitly identified. In any event, the Department’s view of its carrier selection criteria is controlling unless it is “plainly erroneous or inconsistent” with the language of the Policy Statement. United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977); Action Alliance of Senior Citizens v. Bowen, 846 F.2d 1449, 1457 (D.C.Cir.1988). As it is not, we decline to find the negative implication urged by Horizon. Horizon also suggests that the Department’s emphasis on San Juan’s three years of service in the Seattle-Vancouver market is little more than a thinly veiled attempt to protect San Juan from a possible diversion of traffic and revenues — a factor that, according to the NPRM, the CAB had excluded from consideration in the “era of deregulation.” See 50 Fed.Reg. at 38,547. Even assuming the Department intended to bar consideration of diversionary effect, we find no violation. In the Final Order the Department explicitly said that it did not consider the diversionary impact on San Juan of awarding the route to Horizon, J.A. at 33-34, and Horizon suggests no reason to question the Department’s good faith. Instead the Department stressed the positive reasons to give quasi-incumbency weight — particularly San Juan’s reputation and brand name recognition and the value of its track record as an indicator of future service. J.A. at 29-30. We take the Department at its word. II. DOT’S Failure to Explicitly Consider Market Structure Horizon’s second line of attack focuses on “market structure” — “the impact that a route award will have on the overall level of competition in a particular market.” Policy Statement, 51 Fed.Reg. at 43,186. The Department’s Final Order failed to discuss the competitive effects of the competing applications. Horizon claims that the award to San Juan will spawn less competition than would an award to Horizon and that at least in these circumstances failure to discuss the issue renders the outcome arbitrary and capricious. Horizon Brief at 27-30. We think not. We note at the outset that nothing in the Air Deregulation Act or in the Policy Statement requires the Department to explicitly analyze the effect on market structure in every case. The Act merely stated as a general goal “maximum reliance on competitive market forces,” 49 U.S.C.App. § 1302(a)(4); this generalization can hardly be read as a clear directive to focus on competitive effects in inherently non-market-oriented proceedings for award of international routes. As noted above, the Department’s Policy Statement simply described and adopted the CAB’s unstructured practice of “varying the weight accorded each criterion from case to case, depending on the particular circumstances of each proceeding.” Policy Statement, 51 Fed.Reg. at 43,186. In the face of that clearly stated intention, we cannot accept Horizon’s claim that the Department has bound itself to analyse the competitive implications in every comparative proceeding, no matter how insignificant the difference between the proposals in this dimension. See also Frontier Airlines v. CAB, 439 F.2d 634, 637 n. 4 (D.C.Cir.1971) (CAB need not deal in detail with every aspect of matter in route award proceeding); Outagamie County v. CAB, 355 F.2d 900, 906 (7th Cir.1966) (same). It remains to be determined whether the circumstances of this case were such that the Department ought to have addressed itself to the asserted anti-competitive effects of victory for San Juan. Where no party gives the Department a plausible reason to believe that it has a material advantage on a specific criterion, we think that ordinarily the Department can ignore that criterion. The Department’s concern for market structure has two separate facets: in-tergateway competition (competition among airlines at different U.S. gateways serving a common foreign destination) and intragateway competition (competition among carriers on the particular route). See NPRM, 50 Fed.Reg. at 38,456; Policy Statement, 51 Fed.Reg. at 43,186-87. We may at the outset put aside the first. Horizon never raised the issue in its brief or submissions to the Department below, concentrating solely on intragateway competition. Brief of Horizon Air Industries in Seattle-Vancouver Service Case, reprinted in J.A. at 87 (quoting definition of intra-gateway competition in the Policy Statement, 51 Fed.Reg. at 43,187). Because Horizon failed to raise this issue with the Department, it is barred by statute from raising it here. 49 U.S.C. § 1486(e) (1982) (court may not review objection to order of the Department unless the objection was raised with the Department); Air Line Pilots Association v. DOT, 838 F.2d 563, 567 (D.C.Cir.1988); Air Line Pilots Association v. CAB, 502 F.2d 453, 457 (D.C.Cir.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1391, 43 L.Ed.2d 652 (1975). As to intragateway competition, Horizon contends first that the Department “passed up the opportunity to increase the number of competitors serving [Vancouver] from the Seattle gateway.” Horizon Brief at 28. The argument is based on the quite shaky assumption that San Juan would go on blithely providing one-stop service from Seattle to Vancouver in the face of competition from two non-stop commuter carriers and two non-stop jet carriers. Before its interment in 1985 the CAB consistently operated under the opposite — and we think more plausible — assumption that carriers offering one-stop service have great difficulty competing with non-stop carriers on the same route. See, e.g., California-Alberta Route Proceeding, 76 C.A.B. 824, 828 (1978). In short, Horizon’s argument here was not so colorably powerful as to require explicit Department analysis. Horizon also points to a “code sharing” agreement entered into by San Juan and United shortly before San Juan’s selection. See Seattle-Vancouver Service Case, Dkt. No. 44716, Order 87-10-10 (October 7, 1987) (“Reconsideration Order”), reprinted in J.A. at 35. Under the agreement San Juan will be identified by United’s two-letter code in the Official Airline Guide and in computer reservation systems, and United may hold itself out as providing service wherever San Juan flies. But San Juan will remain an independently owned and operated airline with a separate identity, and will retain sole authority to set its schedules and fares; the agreement gives United neither a financial interest in San Juan nor any control over the smaller airline’s operations. See Reconsideration Order, J.A. at 35, 37. The agreement originally covered all of San Juan’s operations, but the Department (at Horizon’s urging) conditioned its route award on San Juan’s agreement not to share United’s code in the Seattle-Vancouver market. Reconsideration Order, J.A. at 40. This at least partly met Horizon’s contention that the agreement would temper San Juan’s willingness to compete aggressively with United on the Seattle-Vancouver route. Moreover, though the Department faulted San Juan for not bringing the agreement to its attention, id. at 39 n. 11, it concluded that the agreement as modified would have few anticompetitive effects, id. at 3-6, and would not undercut the basis for choosing San Juan over Horizon, id. at 4. Note that the Department did expressly consider this issue, so it cannot be faulted for giving it the silent treatment. Horizon argues, however, that even the residue of the agreement will dampen San Juan’s competitive ardor in the Seattle-Vancouver market. But the Department reasoned that commuter service in small, plodding prop-driven planes would not in any event impose a severe competitive constraint on pricing or service by jet setters United and Pacific Western. Id. at 39-40. This judgment, in the area of the Department’s expertise, is plausible enough to require our deference. III. Route Integration Horizon provided service between the gateway (Seattle) and Portland and Eugene, and proposed that its service on the contested route should (at least in part) take the form of single-plane extension of that service. This led the Department in its original decision to find its proposed route integration “clearly superior.” Show Cause Order, J.A. at 25. In the Final Order, however, DOT concluded that Horizon’s superior behind service was outweighed by San Juan’s edge in market identity and flight frequency. Final Order, J.A. at 29. Horizon attacks this flip-flop, arguing essentially that DOT should have accorded Horizon’s advantage in route integration nearly-dispositive weight. Horizon Brief at 30-38. In its Final Order the Department noted that San Juan’s one-stop Portland-Belling-ham-Vancouver service (inaugurated after it submitted its original proposal) somewhat offset Horizon’s advantage. J.A. at 31. Even so, the Department candidly recognized that Horizon’s proposed behind service to Portland remained superior. Id. at 30. But it placed less emphasis on the advantage than it originally had because it recognized that the vast majority of Seattle-Vancouver passengers would either be purely local travellers or passengers connecting with flights to or from cities other than Portland — evidently about 90 percent. See Final Order, J.A. at 31 n. 6. It reasoned that San Juan’s more frequent flights would benefit both connecting passengers and the substantial number of local passengers, whereas Horizon’s behind service to Portland would benefit a much smaller percentage of the market. Id. at 31. This was a reasonable judgment for the Department to make in its role as a surrogate for individual consumers expressing preferences through a market. IV. Late Submissions by San Juan Horizon argues that the Department erred by permitting San Juan to update the record at two points in the proceedings. Horizon Brief at 38-42. First, following the submission of service proposals by both airlines, San Juan revised its proposal to reflect its initiation of one-stop service between Portland and Vancouver and its agreement to purchase two new 19-seat aircraft. J.A. at 81. Second, in response to the Show Cause Order, San Juan gave further details of its interline agreements with other carriers. J.A. at 113-14. The Department suggests that all the new data is quite trivial. Respondent’s Brief at 48. We cannot accept this view. In its Final Order the Department explicitly considered San Juan’s new Portland-Bell-ingham-Vancouver service as material on the route integration issue, J.A. at 31, and indeed the information closely parallels data that the CAB had refused to consider simply because of the applicant’s delay in bringing it to the Board’s attention, see United States-Brazil/Argentina All-Cargo Exemption, 96 C.A.B. 75, 79 n. 9 (1982) (refusing to consider applicant’s single-plane behind service). Nonetheless, we find no error. The Department has not bound itself to act as a procedural martinet, enforcing every procedural nicety to the letter. Thus it is free to be informal, so long as it does not trench on parties’ opportunities to be heard fairly. Although the Department conceded that the revisions were somewhat out of the ordinary, Show Cause Order, J.A. at 25 n. 18; Final Order, J.A. at 33 n. 12, it concluded that in “non-oral evidentiary proceedings involving smaller carriers” it was appropriate to “afford parties greater latitude,” id. It avoided any prejudice to Horizon by giving it an opportunity to respond. Horizon seized the chance on both points, see J.A. at 165-66 (Horizon’s letter responding to San Juan’s revised proposal); J.A. at 122-31 (Horizon’s brief in reply to San Juan’s response to the Show Cause Order), and the Department considered the responses in its orders. See, e.g., Show Cause Order, J.A. at 19 n. 3, 25 n. 18; Final Order, J.A. at 28 & n. 2, 33 n. 12. * * * * * * Finding no error, we deny the petition for review. . The Department defines a “commuter air carrier” as an "air taxi operator” which operates scheduled service five or more times a week between two cities. 14 C.F.R. § 298.2(f) (1987). An “air taxi operator” is in turn defined as a carrier which does not “utilize large aircraft.” 14 C.F.R. § 298.3(a)(1). The Department's regulations consider any airplane with more than 60 seats a "large aircraft.” 14 C.F.R. § 298.2(i). . "Behind service,” sometimes called “beyond service,” refers to service between a U.S. gateway and a second U.S. destination. That is, viewing the route from the foreign city, the second city is “behind" the gateway. . Contrary to Horizon’s assertion, San Juan had notified the Department of its practice of adding extra sections at peak periods in its initial brief prior to the Show Cause Order. See Brief of San Juan Airlines in Seattle* Vancouver Service Case, J.A. at 103. San Juan had also informed the Department that it planned to use 19-seat Dormer aircraft prior to the Show Cause Order. See J.A. at 81. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_crmproc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited. PINKERTON v. UNITED STATES. No. 9523. United States Court of Appeals Seventh Circuit. Nov. 24, 1948. James B. Martin, of Springfield, Ill., Charles E. Bliss, of Taylorville, Ill., and Harry B.. Hershey and Lee W. Ensel, both of Springfield, Ill., for appellant. Howard L. Doyle, U. S. Atty., and Marks Alexander, Asst. U. S. Atty., both of Springfield, Ill., Theron L. Caudle, Asst. Atty. Gen., Arthur L. Jacobs, Atty., Dept. of Justice, of Washington, D. C. and George A. Stinson, Ellis N. Slack, A. F. Prescott, and Clarence J. Nicltman, Sp. Asst. to Atty. Gen., for appellee. Before KERNÉR and MINTON, Circuit Judges, and SWYGERT, District Judge. KERNER, Circuit Judge. Plaintiff, as receiver of Mt. Auburn & Osbernville Grain Company (hereinafter referred to as Auburn), filed a timely claim for refund of federal income and excess profits tax which the Commissioner of Internal Revenue rejected. Upon denial of the claim, suit was instituted. The facts were stipulated. They appear in the trial judge’s findings reported in D.C., 73 F.Supp. 590. The controlling facts briefly summarized are that although Auburn was originally engaged in the grain business, it entered into an agreement under which it ceased active grain operations and instead assumed the active status of a landlord-lessor. In 1944 a receiver was appointed to manage and operate Auburn. As receiver he collected rents which would have been taxable to Auburn, deferred payment of part of the rent, paid real estate taxes, sold real estate and realized a profit, that is, a net capital gain for the sale of real estate. Based on these findings the court concluded that plaintiff, as receiver, had carried on precisely the business that had been carried on by Auburn for some years preceding the receivership and that the taxable income and gain thereby realized came into his hands as a result of his management of the business and properties of and the collection of rent due Auburn. The court ruled that plaintiff was an operating receiver within the meaning of § 52 of the Internal Revenue Code, 26 U.S. C.A. § 52, and that the taxes had been properly paid; it dismissed the complaint and entered judgment for costs against plaintiff. To reverse this judgment, plaintiff appeals. Section 52 of the Internal Revenue Code reads in part as follows: “In cases where receivers * * * are operating the property or business of corporations, such receivers * * * shall make returns for such corporations in the same manner and form as corporations are required to make returns. Any tax due on the basis of such returns made by receivers * * * shall be collected in the same manner as if collected from the corporations of whose business or property they have custody and control.” Plaintiff makes the point that where a receiver takes immediate steps to sell and does sell all of the assets of a corporation, except those which the court appointing the receiver, ordered reserved for collection, it cannot be said that the receiver is operating the property or business within the meaning of the statute, citing among other cases, In re Owl Drug Co., D.C., 21 F.Supp. 907, and In re Heller, Hirsch & Co., 2 Cir., 258 F. 208. In the Owl case the trustee took over the drug stores which the bankrupt had formerly operated, and after selling the business and all of its assets as a going concern, he deposited the proceeds in a bank. The court held that the interest earned on the deposits was not gain derived from the operation of the business of the bankrupt. In the Heller case the facts were that the trustee was not carrying on the business of the bankrupt, and the funds constituting the income were the result of a compromise made by the trustee of a claim for nonpayment of salary and commissions. Thus, the trustee did nothing more than collect the proceeds from a claim, which he compromised, arising from a contract entered into and completely executed by the corporation prior to the bankruptcy. We do not disagree with these decisions but, in the light of the instant facts, we do not think they are applicable here. In our case Auburn’s business was the collection of rents, and the Christian County Court entered a decree directing the receiver to take charge of, manage and operate its assets, and after plaintiff was appointed receiver he succeeded to and continued Auburn’s sole business function. Under these circumstances we think he was not only operating Auburn’s business, but he also took over its corporate property and in the course of his receivership he operated its property, and hence came within the meaning of § 52 of the Act. We are fortified in this conclusion by the cases presently to be discussed in which the words “operating the property or business” have received judicial construction. It is immaterial that the receiver’s activities were of short duration. Von Baumbacb v. Sargent Land Co., 242 U.S. 503, 517, 37 S.Ct. 201, 61 L.Ed. 460. See also Page v. M. Rich. & Bros. Co., 5 Cir., 99 F.2d 607. True, the Von Baumbach case did not involve § 52 of the Revenue Act. It was a suit to recover taxes paid under protest and assessed under the Corporation Tax Law of 1909, yet the question was whether plaintiff was doing business.' The Act in that case did not require any particular amount of business in order to bring a company within its terms; neither does § 52 of the Revenue Act; Hence whether the activities are slight or of short duration is immaterial. State v. American Bonding & Casualty Co., 225 Iowa 638, 281 N.W. 172, however did involve an interpretation of § 52 of the Revenue Act. There, as here, the receiver took over properties and collected rents. No federal income tax was paid 'upon the income thus derived by the receiver. The United States Government filed a claim against the corporation. The receiver filed objections to the claim contending that as the corporation had been dissolved, it could not have any income after its dissolution, and could not, therefore, be subject to any income tax. The court, in disposing of the receiver’s contention, 281 N.W. at page 175, said: “ * * * this receivership comes fairly within the phrase ‘receiver operating the property or business,’ especially in connection with the words occurring later in the statute, ‘of whose business'or property they have custody and control.’ ” In United States v. Metcalf, 9 Cir., 131 F.2d 677, the corporation had been adjudicated a bankrupt and its property was in the 'course of -administration by a trustee for ultimate liquidation. The properties consisted of' various parcels of real estate from which the trustee had collected income. The trustee coni tended" that even if this income 'was acquired by him in the operation of the bank*rupt’s property, it was not taxable because his ultimate objective was- the liquidation of the entire estate. The court held that it is what the trustee does that determines his liability, and since1 he :had collected various kinds of income from the properties, he was doing business within the meaning of § 52 of the Revenue Act. See also Louisville Property Co. v. Commissioner, 6 Cir., 140. F.2d 547. ' In the light o-f these cases and the facts in our case, we are of the opinion that the District Court correctly held that plaintiff was an operating receiver within the meaning of § 52 of the Internal Revenue Code. Consequently, the judgment must be affirmed. Affirmed. Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number. Answer:
sc_adminaction_is	B	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. UNITED STATES v. RUZICKA et al., trading as SEELEY DAIRY. No. 54. Argued November 20, 21, 1946. Decided December 16, 1946. Acting Solicitor General Washington argued the cause for the United States. With him on the brief were Assistant Attorney General Berge, Robert L. Stern, J. Stephen Doyle, Jr. and W. Carroll Hunter. William Parker Ward argued the cause and filed a brief for respondents. Mr. Justice Frankfurter delivered the opinion of the Court. We brought this case here, 327 U. S. 776, because it raises questions of importance in the administration of the Agricultural Marketing Agreement Act of 1937. 50 Stat. 246, 7 U. S. C. § 601 et seq. The general scheme of the Act and its operation have been before us in a series of cases. United States v. Rock Royal Co-op., 307 U. S. 533; United States v. Wrightwood Dairy Co., 315 U. S. 110; Stark v. Wickard, 321 U. S. 288. Our immediate concern is with the provisions of the Act that distribute enforcing authority between the courts and the Secretary of Agriculture. These become relevant to the enforcement of Milk Order No. 41, an “Order Regulating the Handling of Milk in the Chicago, Illinois, Marketing Area,” and more particularly the portion of that elaborate Order which defines the rights and obligations of ’“handlers” of milk. Section 941.1 (5). The Order was issued under the powers delegated to the Secretary of Agriculture to effectuate the purposes of the Act. Section 8c of the Act. Order No. 41 classifies milk received into the Chicago area according to its uses. To milk in each of the four classes the market administrator assigns a uniform “use value.” All handlers are required to report to the market administrator the quantity of milk purchased and put to its classified uses. On the basis of these reports, the administrator, taking into account the total quantity of milk produced and the amount devoted to each classification, as well as the balance in the- Producer-settlement Fund, and making authorized adjustments, announces monthly a uniform minimum price to be paid by handlers to producers. Since a handler’s receipts from the re-sale of milk, or the sale of milk products, vary with the amount of the milk distributed in each class, the uniform price paid by handlers will create inequities unless adjustment is made, based on the comparative use value of the milk distributed by a particular handler. The mechanism for adj ustment is the Producer-settlement Fund. Handlers are required to contribute to this Fund whenever the use value of the milk handled by them during the month is greater than the norm on which the uniform price is based. Conversely, handlers whose milk distribution is of low use value and whose fixed minimum costs are therefore out of line with their receipts, are recompensed from this Fund. Effective enforcement of such a marketing scheme rests on proper accounting, reliable reports and alert inspection. At best, however, errors are inevitable, which may call for payments by handlers into the Fund. The reliance of the industry upon that Fund makes prompt payments into it imperative. An order for payment into the Fund and its resistance led to this litigation. The Ruzickas, handlers of milk, filed with the market administrator required reports and received from him a transcript of their account with the Fund for the period in controversy. Deficiencies were disclosed which the Ruzickas refused to pay, in disregard of § 941.8 (e) and (g) of Order 41 requiring a handler to pay within five days “the amount so billed.” Under § 8 (6) of the Agricultural Marketing Agreement Act this suit was begun in the Northern District of Illinois for enforcement. The Government prayed for a mandatory injunction commanding compliance with Order 41 by payment of the sums alleged to be due to the Fund. If it be relevant, it was not alleged that there was danger of irreparable loss because of insolvency of the Fund. By their answer the Ruzickas justified their failure to pay, chiefly on the ground that the demand was based upon faulty inspection of their accounts and improper tests of their milk and milk products. The District Court ruled that “the defendants having failed to avail themselves of the administrative remedy provided by said Act, may not raise such issues of fact before this court.” On the issue in the suit thus limited, the District Court granted the Government’s motion for judgment on the pleadings. The Circuit Court of Appeals for the Seventh Circuit, one judge dissenting, reversed the District Court, ruling that the validity of the demand by the Secretary of Agriculture may be contested in an enforcement proceeding under § 8a (6). 152 F. 2d 167. Thus the question before us is whether a handler may resist a claim against him by the Secretary of Agriculture, made according to the procedure defined in the Act, without previously having sought to challenge the claim in a proceeding, also defined in the Act, before the Secretary of Agriculture. The answer is found on a fair reading of the Agricultural Marketing Agreement Act in the context of its purposes and of the scheme designed by Congress for their realization. The sections of the statute directly relevant to our problem are set out in the margin. Briefly, the district courts of the United States are “vested with jurisdiction specifically to enforce” orders issued pursuant to the Act. The Act authorizes a handler to challenge before the Secretary of Agriculture his order “or any obligation imposed in connection therewith” as “not in accordance with law,” and to ask to have it modified or to be exempted from it. When the order is so challenged, the determination of the Secretary of Agriculture, after hearing, is final but only “if in accordance with law.” Section 8c (15) (A). To test whether such ruling is “in accordance with law,” the handler may bring the Secretary’s action for review before the appropriate district court. Section 8c (15) (B). But the very subsection, (15), which gives the handler access to the Secretary of Agriculture for administrative relief and opportunity for judicial review of his determination, provides that the pendency of the procedings before the Secretary, or in the district court to review the Secretary’s ruling, “shall not impede, hinder, or delay the United States or the Secretary of Agriculture from obtaining relief” under § 8a (6). It is only when “a final decree has been rendered in proceedings between the same parties, and covering the same subject matter, instituted pursuant to this subsection (15)” that proceedings brought for enforcement under § 8a (6) “shall abate.” Section 8c (15) (B). To be sure, Congress did not say in words that, in a proceeding under § 8a (6) to enforce an order, a handler may not question an obligation which flows from it. But meaning, though not explicitly stated in words, may be imbedded in a coherent scheme. And such we find to be the provisions taken in their entirety, as a means for attaining the purposes of the Act while at the same time protecting adequately the interests of individual handlers. The procedure devised by Congress explicitly gave to an aggrieved handler an appropriate opportunity for the correction of errors or abuses by the agency charged with the intricate business of milk control. In addition, if the Secretary fails to make amends called for by law the handler may challenge the legality of the Secretary’s ruling in court. Handlers are thus assured opportunity to establish claims of grievances while steps for the protection of the industry as a whole may go forward. Sections 8a (6) and 8c (15) thus form a complementary procedural scheme. Contrariwise, it would make for disharmony to extrapolate from these provisions of the statute the right to consider independently, in a proceeding by the Government for the enforcement of the Secretary’s order, questions for which Congress explicitly furnished the handler an expert forum for contest with ultimate review by a district court. The situation before us indicates how disruptive it would be to allow issues that may properly come before a district court in a proceeding under § 8c (15) to be open for independent adjudication in a suit for enforcement under § 8a (6). After a presumably careful study by those technically equipped, a program was devised for the dairy farmers in one of the large areas of the country. The success of the operation of such Congressionally authorized milk control must depend on the efficiency of its administration. Promptness of compliance by those subject to the scheme is the presupposition of Order No. 41. Thus, definite monthly deadlines are fixed by the Order for every step in the program. In large measure, the success of this scheme revolves around a “producers” fund which is solvent and to which all contribute in accordance with a formula equitably determined and of uniform applicability. Failure by handlers to meet their obligations promptly would threaten the whole scheme. Even temporary defaults by some handlers may work unfairness to others, encourage wider non-compliance, and engender those subtle forces of doubt and distrust which so readily dislocate delicate economic arrangements. To make the vitality of the whole arrangement depend on the contingencies and inevitable delays of litigation, no matter how alertly pursued, is not a result to be attributed to Congress unless support for it is much more manifest than we here find. That Congress avoided such hazards for its policy is persuasively indicated by the procedure it devised for the careful administrative and judicial consideration of a handler’s grievance. It thereby safeguarded individual as well as collective interests. In the case before us, administrative proceedings were instituted before the Secretary of Agriculture and, apparently, are awaiting his action. Presumably the Secretary of Agriculture will give the respondents the rights to which Congress said they were entitled. If they are dissatisfied with his ruling, they may question it in a district court. The interests of the entire industry need not be disturbed in order to do justice to an individual case. It is suggested that Congress did not authorize a district court to enforce an order not “in accordance with law.” The short answer to this rather dialectic point is that whether such an order is or is not in accordance with law is not a question that brings its own immediate answer, or even an answer which it is the familiar, everyday business of courts to find. Congress has provided a special procedure for ascertaining whether such an order is or is not in accordance with law. The questions are not, or may not be, abstract questions of law. Even when they are formulated in constitutional terms, they are questions of law arising out of, or entwined with, factors that call for understanding of the milk industry. And so Congress has provided that the remedy in the first instance must be sought from the Secretary of Agriculture. It is on the basis of his ruling, and of the elucidation which he would presumably give to his ruling, that resort may be had to the courts. Congress seems to have emphasized the different functions in the enforcement of the Act that § 8a and § 8c serve by explicitly directing that the proceedings for relief instituted by a handler under § 8c shall not “impede, hinder, or delay” enforcement proceedings by the United States under § 8a. We are dealing here solely with the rights of handlers. This is not Stark v. Wickard, 321 U. S. 288. In that case it was concluded that since Congress had provided no administrative remedy for a producer to review the legality of an order against him, presumably the courts were not closed to him. But by § 8c (15) Congress has made precisely such provisions for handlers. As to them the procedural scheme is complete. The Agricultural Marketing Agreement Act is one of many enactments by which Congress in regulating economic enterprise has divided the duty of enforcement between courts and administrative agencies. But there is the greatest variety in the manner in which Congress has distributed this responsibility. Those who are entitled to speak tell us that the development of the natural sciences has often suffered from premature generalization. Certainly the recent growth of administrative law counsels against generalizations regarding what is compendiously called judicial review of administrative action. And so we deem it desirable, in a case like this, to hug the shore of the precise problem before us in relation to the provisions of the particular Act immediately relevant. One general observation may, however, be permitted. Both courts and administrative bodies are law-enforcing agencies, utilized by Congress as such. In construing the enforcement provisions of legislation like the Marketing Act, it is important to remember that courts and administrative agencies are collaborative “instrumentalities of justice,” and not business rivals. See United States v. Morgan, 307 U. S. 183, 191; Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134, 141 et seq. And so we are not called upon to decide what powers inhere in a court of equity, exercising due judicial discretion, even in a suit such as was here brought by the United States for the enforcement of an order under § 8a. We say this because it appears that at a stage in the proceedings in the District Court a motion for a stay, pending disposition of the petition by the Ruzickas before the Secretary of Agriculture, was made by the respondents. With the court’s leave, this motion was subsequently withdrawn. The power of the District Court to have acted on it is therefore not before us. Compare Scripps-Howard Radio v. Comm’n, 316 U. S. 4; Hecht Co. v. Bowles, 321 U. S. 321. Judgment reversed. Mr. Justice Douglas concurs in the result. “8a (6) The several district courts of the United States are hereby vested with jurisdiction specifically to enforce, and to prevent and restrain any person .from violating any order, regulation, or agreement, heretofore or hereafter made or issued pursuant to this title, in any proceeding now pending or hereafter brought in said courts. “8c (15) (A) Any handler subject to an order may file a written petition with the Secretary of Agriculture, stating that any such order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification thereof or to be exempted therefrom. He shall thereupon be given an opportunity for a hearing upon such petition, in accordance with regulations made by the Secretary of Agriculture, with the approval of the President. After such hearing, the Secretary shall make a ruling upon the prayer of such petition which shall be final, if in accordance with law. “8c (15) (B) The District Courts of the United States (including the District Court of the United States for the District of Columbia) in any district in which such handler is an inhabitant, or has his principal place of business, are hereby vested with jurisdiction in equity to review such ruling, provided a bill in equity for that purpose is filed within twenty days from the date of the entry of such ruling. Service of process in such proceedings may be had upon the Secretary by delivering to him a copy of the bill of complaint. If the court determines that such ruling is not in accordance with law, it shall remand such proceedings to the Secretary with directions either (1) to make such ruling as the court shall determine to be in accordance with law, or (2) to take such further proceedings as, in its opinion, the law requires. The pendency of proceedings instituted pursuant to this subsection (15) shall not impede, hinder, or delay the United States or the Secretary of Agriculture from obtaining relief pursuant to section 8a (6) of this title. Any proceedings brought pursuant to section 8a (6) of this title (except where brought by way of counterclaim in proceedings instituted pursuant to this subsection (15)) shall abate whenever a final decree has been rendered in proceedings between the same parties, and covering the same subject matter, instituted pursuant to this subsection (15).” Section 8a (8) is also invoked by petitioner. But that section adds to the Government’s remedies. It implies no judicial review in favor of handlers. “During the period while any such petition is pending before the Secretary and until notice of the Secretary’s ruling is given to the petitioner, the penalties imposed by the act for violation of an order cannot be imposed upon the petitioner if the court finds that the petition was filed in good faith and not for delay. The Secretary may, nevertheless, during this period proceed to obtain an injunction against the petitioner pursuant to section 8a (6) of the Agricultural Adjustment Act. ... It is believed that these provisions establish an equitable and expeditious procedure for testing the validity of orders, without hampering the Government’s power to enforce compliance with their terms.” S. Rep. No. 1011, 74th Cong., 1st Sess., Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_casetyp1_7-3-2	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts". Daniel ELLSBERG, et al., Appellants, v. John N. MITCHELL, et al. No. 84-5574. United States Court of Appeals, District of Columbia Circuit. Argued May 1, 1985. Decided Dec. 5, 1986. Lawrence Teeter, Los Angeles, Cal., for appellants. Larry L. Gregg, Atty., U.S. Dept, of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty. and Barbara L. Herwig, Atty., U.S. Dept, of Justice, Washington, D.C., were on the brief, for appellees. Before ROBINSON and MIKVA, Circuit Judges, and SCALIA, Circuit Justice. Opinion for the Court filed by Circuit Justice SCALIA. Justice Scalia was a judge of this Court when this case was briefed and argued, and is a designated Circuit Justice of this Circuit on the date of this decision. See 28 U.S.C. §§ 42, 43(b) (1982). SCALIA, Circuit Justice: This is the last in a series of three cases we decide today relating to the qualified immunity defense in the national security context. See Halperin v. Kissinger (“Halperin II”), 807 F.2d 180 (D.C.Cir. 1986); Smith v. Nixon (“Smith II'’) 807 F.2d 197 (D.C. Cir.1986). As in the companion cases, plaintiffs seek damages from federal executive officials for allegedly violating their constitutional and statutory rights by electronically intercepting their telephone conversations. Defendants claim that qualified immunity shields them from liability since the wiretap, having had a validating national security purpose did not violate clearly established law. The issue is whether plaintiffs have presented sufficient concrete facts to avoid summary judgment, without further discovery, on their assertions that defendants’ putative national security purpose was objectively unreasonble and that plaintiffs were subject to other illegal interceptions the existence of which defendants have concealed. I This case, the factual background of which is recited more fully in our earlier decision, see Ellsberg v. Mitchell (“Ellsberg I”), 709 F.2d 51, 52-56 (D.C.Cir.1983), originates in the famous “Pentagon Papers” criminal prosecution, United States v. Russo & Ellsberg, Crim. No. 9373 (WNB) (C.D. Cal. dismissed because of government misconduct May 11, 1973), during which the government acknowledged that federal investigators had overheard one or more members of the defense team through warrantless wiretaps. Anthony J. Russo, Jr., a defendant in that case, and his defense lawyer, H. Peter Young, along with Russo’s codefendant and other members of the defense team who are no longer parties here, brought this damage action against several federal agencies and former federal officials, including Attorney General John N. Mitchell, Secret Service Commissioner James J. Rowley, Secretary of State William Rogers, Secretary of Defense Melvin Laird, and Central Intelligence Agency Director Richard Helms. Both plaintiffs alleged that defendants violated their rights under the fourth amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 211 (current version as amended by Title II of the Foreign Intelligence Surveillance Act of 1978, Pub.L. No. 95-511, 92 Stat. 1783, 1796, codified at 18 U.S.C. §§ 2510-2520 (1982)). (First and sixth amendment claims were also raised, but have not been preserved in this appeal.) In the course of discovery (pursuant to which Mitchell and the defendant agencies were required to acknowledge all wiretaps whose acknowledgement was not precluded by the government’s invocation of the state secrets privilege, see Ellsberg I, 709 F.2d at 59; Ellsberg v. Mitchell, Civ. No. 1879-72 (D.D.C. Nov. 6, 1981) (Order) defendants disclosed that four of Young’s conversations were overheard between September 17, 1970 and June 23, 1971, during wiretap surveillance of the Los Angeles Chapter of the Black Panther Party. Defendants denied the existence of any interceptions of Russo’s conversations and of any other interceptions of Young’s conversations, not covered by the state secrets privilege. (Interceptions covered or not covered by the state secrets privilege will hereinafter be referred to as “privileged” or “nonprivi-leged” interceptions, respectively.) Despite plaintiffs’ pending discovery requests, the District Court granted summary judgment to defendants Rogers and Rowley on the basis of'plaintiffs’ failure to allege that they engaged in any illegal activity, and to defendants Laird and Helms for plaintiffs’ failure to allege that they were personally involved in the interception, use, or disclosure of any interception of plaintiffs’ communications. Ellsberg v. Mitchell, Civ. No. 1879-72 (D.D.C. Dec. 23, 1982) (Mem.Order), amended by Ellsberg v. Mitchell, Civ. No. 1879-72 (D.D.C. Feb. 1, 1983) (Order). In a separate order, the District Court also dismissed Russo’s suit entirely because he was not overheard on any nonprivileged wiretap. (D.D.C. Dec. 23, 1982) (Order). Later, also despite Young’s pending discovery motions, the District Court granted summary judgment to Mitchell on qualified immunity grounds against Young, finding that the “objective record thus establishes a valid [national security] rationale for the surveillance.” Ellsberg v. Mitchell, Civ. No. 1879-72, slip op. at 4 (D.D.C. July 22,1983) (Mem.Order). Plaintiffs appeal both orders. We address them in reverse order. II In granting summary judgment to Mitchell on qualified immunity grounds, the District Court properly reasoned that “Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982),] precludes us from ... asking if national security was the actual or only reason for defendant’s conduct,” Ellsberg, slip op. at 4, where, as here, there is no dispute that defendants purported to act out of national security concerns, see Halperin II, 807 F.2d at 188-89. Defendants have alleged sufficient objective facts to place the wiretap of the Los Angeles Chapter of the Black Panther Party (which intercepted all four conversations at issue here) in a rational national security context. We so held in a previous challenge to the legality of the same wiretap. Sinclair v. Kleindienst, 645 F.2d 1080, 1082-85 (D.C.Cir.1981). The Black Panther Party was known to have had “contacts with foreign revolutionaries,” id. at 1082, which, we emphasized, “provide the clearest justification for a national security exception to Title III,” id. at 1084; see also Ellsberg I, 709 F.2d at 71 (MacKinnon, J., concurring in part and dissenting in part) (“[E]xamination ... leaves no room to doubt that these warrantless surveillances fell within the putative ‘foreign agent exception’ to the warrant requirement of the Fourth Amendment.”). Even after considerable document discovery, plaintiffs can point to no objective facts that suggest a conclusion contrary to Sinclair. Instead, based on indicia of Mitchell’s “law enforcement philosophy,” Brief for Appellants at 29, and a catalogue of allegedly illegal FBI activity (entirely unrelated to the challenged wiretap), id. at 22-29, they urge us to find that Mitchell’s assertion of a national security purpose was pretextual. As we have said, such a subjective inquiry is not permitted. See Halperin II, 807 F.2d at 188; Smith II, 807 F.2d at 200-01. Since (in light of the complaint’s inadequacy) even the discovery that plaintiffs have already conducted should not have been allowed, see Smith II, 807 F.2d at 200-01; Hobson v. Wilson, 737 F.2d 1, 29-31 (D.C.Cir.1984), cert. denied, 470 U.S. 1084,105 S.Ct. 1843, 85 L.Ed. 2d 142 (1985), plaintiffs’ requests for further discovery before the summary judgment determination were properly denied. Ill Plaintiffs challenge the District Court’s grant of summary judgment in favor of Rowley, Rogers, Laird, and Helms, and its dismissal of Russo’s suit, on the ground that a genuine issue exists as to the truth of the government’s denial that plaintiffs were subject to other, non-privileged wiretaps that the government has concealed. Brief for Appellants at 9. The mere denial of a denial, however, does not suffice to create a genuine issue of fact for purposes of Fed.R.Civ.P. 56(c). Plaintiffs alleged no concrete facts that would sustain a finding that such nonprivileged interceptions existed. Plaintiffs argue, in essence, that the government’s “prolonged history of fraudulent misrepresentation” regarding its wiretapping activities and other prosecutorial misconduct could convince a jury that federal officials are in the “habit” of concealing such wiretaps from courts and are now behaving pursuant to that “habit.” Brief for Appellants at 31 (citing Fed.R.Evid. 406 (“Habit; Routine Practice”)); see also id. at 31-43. Further, each plaintiff enumerates a list of alleged governmental illegalities demonstrating official interest in him during and after the Pentagon Papers investigation and trial. Id. at 30, 44-45. For example, Russo alleges that he was subject to unspecified assassination attempts and “death threats from government connected sources.” Id. at 45. Young alleges that he could not locate some of his office files for several months, and that his car was once unjustifiedly towed, and when he claimed it, local police took two hours to locate a briefcase he had left in it — from which he infers that the FBI both burglarized his office and copied documents in his briefcase — from which he urges us to infer that there must have been a wiretap as well. Id. at 30. We decline to license any plaintiff to embark on a fishing expedition in government waters on the basis of such speculation. Cf. United States v. Kember, 648 F.2d 1354, 1368-70 (D.C.Cir.1980) (criminal defendant must bear heavy burden to overcome government’s positive denial of electronic surveillance); United States v. Williams, 580 F.2d 578, 584-87 (D.C.Cir.) (same), cert. denied, 439 U.S. 832, 99 S.Ct. 112, 58 L.Ed.2d 127 (1978). The extensive documentary discovery in which plaintiffs have already engaged (supplemented by Russo’s Freedom of Information Act request) has turned up no concrete facts that would indicate that nonprivileged wiretaps existed. As we noted earlier, even that discovery was impermissibly granted; in addition to the fact that further discovery would evidently be fruitless, it too would be impermissible. ****** The judgments of the District Court are Affirmed. . A seven-line paragraph in plaintiffs’ brief, without citation to any authority, challenges the District Court’s order of June 10, 1982, Brief for Appellants at 45 — which the brief erroneously refers to elsewhere as “[t]he order of May 28, 1982,” id. at 3 — dismissing defendants Walters, Ingersoll, Aeree, Kleindienst, and Gray. However, plaintiffs failed to file a notice of appeal of that order, see Notice of Appeal (listing only orders of Dec. 23, 1982 and July 27, 1983), made no reference to the issue in their statement of issues presented, and declined to respond to defendants' assertion that such omissions constituted a waiver of appeal as to that order. Accordingly, that ground of error has been waived. See Fed.R.App.P. 3(a), 28(a); Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). Compare Black Panther Party v. Smith, 661 F.2d 1243, 1276-77 (D.C.Cir.1981), vacated on other grounds, 458 U.S. 1118, 102 S.Ct. 3505, 73 L.Ed.2d 1381 (1982). . Plaintiffs have not addressed on appeal, and are assumed to have abandoned, the claim that defendants violated any clearly established fourth amendment reasonableness requirements. See Smith II, 807 F.2d at 203 n. 3. Compare Halperin II, 807 F.2d at 191-93; id, (Mikva, J., with Robinson, J., concurring). Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"? A. motor vehicle B. airplane C. product liability D. federal employer liability; injuries to dockworkers and longshoremen E. other government tort liability F. workers compensation G. medical malpractice H. other personal injury I. fraud J. other property damage K. other torts Answer:
songer_casetyp1_1-2	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 "criminal". UNITED STATES v. STEESE. No. 8545. Circuit Court of Appeals, Third Circuit. Submitted on Briefs Feb. 7, 1944. Decided Aug. 25, 1944. Appellant for himself. Gerald A. Gleeson and Edward A. Kallick, both of Philadelphia, Pa., for appellee. Before BIGGS, GOODRICH, and Mc-LAUGHLIN, Circuit Judges. GOODRICH, Circuit Judge. This is an appeal from an order of the District Court of the United States for the Eastern District of Pennsylvania denying a motion filed by the appellant, Frederick Steese, the object of which, in his words, was to have a conviction against him “declared null and void to the end that it be expunged from the records.” The petitioner’s original motion stated that he is incarcerated in the New York State Prison, having been convicted of the crime of forgery in that state. It said that he is serving an indeterminate term, the minimum of which is five years and the maximum ten years; five years of this term, he said, was imposed as additional punishment because there appeared upon his criminal record a notation to the effect that on July 24, 1935 he was convicted of the crime of forgery in the United States District Court for the Eastern District of Pennsylvania. The petition went on to say that this conviction in the United States District Court was illegally secured by the court, the said court “having ignored and disregarded his rights to the assistance of counsel for his defence” and offered as an exhibit a copy of the record of his conviction in the District Court. It was alleged, also, in the petition, that the prayed adjudication would enable appellant to ask the courts of New York for resentence as a first felony offender. The other averments of the petition are either irrelevant or argumentative conclusions of law. The document was submitted by petitioner, Steese, over his own signature without, so far as the record shows, the assistance of counsel. The docket entries in the District Court of the United States for the Eastern District of Pennsylvania, June 1934 Term, in the case of United States of America v. Frederick Steese show the finding of a true bill on September 7, 1934, issue of a bench warrant September 14, 1934, plea of guilty July 24, 1935 and the imposition of sentence : “Imprisonment in a County Jail for term of one year — suspended. Probation three years.” These are all the facts which the District Court had before it when the appellant’s motion was presented. There was no allegation there on the part of the petitioner that he was not guilty of the crime of which he was charged; no claim that he did not intelligently waive his right to counsel and did not knowingly plead guilty nor did he even allege that he was not advised of his right to counsel. However, in considering the petition the District Judge considered the matter “as though the defendant had pleaded that- he was not so advised by the Court [of his rights to counsel] and that such inquiry was not made.” The District Judge, however, found nothing to indicate that the right to counsel had not been intelligently waived. He therefore denied the motion. We think that on the case as it was presented to the District Judge, including his assumption of fact in petitioner’s favor, that his conclusion was correct. The constitutional provision in the Sixth Amendment entitling one accused of crime to have the benefit of counsel has received renewed and extended force and application through recent decisions of the Supreme Court. It applies both to situations where defendant pleads not guilty and goes to trial and where he pleads guilty. At the same time “the constitution does not force a lawyer upon a defendant. He may waive his constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open.” In order that an accused person’s constitutional rights to counsel be protected is it incumbent, to uphold a judgment of conviction, to show affirmatively that a defendant pleading guilty was advised of his rights to counsel and that he understandingly rejected the opportunity for legal advice? Unless we are prepared to go that far the District Judge committed no error in the hearing before him. That the constitutional requirement does go this far seems to be the point of view of the United States Court of Appeals for the District of Columbia. The Ninth Circuit, at about the same time, declared the contrary, saying “waiver of counsel is usually to be implied from the appearance of an accused without counsel, and his failure to request counsel. * * * This is particularly true when the accused by his plea of guilty has rendered a trial unnecessary.” While it is highly desirable to prevent subsequent disputes and misunderstanding that an accused, if he wishes to waive the right to counsel, should do so in a writing which becomes part of the record, we do not think the rule goes so far that .the absence of the waiver as a matter of record or the failure of the judge expressly to advise the defendant is, by itself, sufficient to invalidate a conviction on constitutional grounds. The instant case, however, has grown more complicated since coming to this Court. Among the documents which the appellant puts before us is a recital which he denominates a “case history.” In it the appellant makes many allegations of fact. He says that in 1934 he was serving a sentence in a county prison in Pennsylvania for the crime of uttering a worthless check, a misdemeanor under Pennsylvania law and no crime at all under federal statutes. While serving this sentence he states that he was visited by a person who described himself as an United States Postal Inspector who informed the defendant that he had been indicted by a Federal Grand Jury for the crime of forging a Post Office money order. This person, defendant says, informed him that if he would sign a certain document he would undoubtedly receive a suspended sentence, but that if he decided to go to trial a sentence of ten years would likely be imposed upon him. At this time, says the petitioner, he was but nineteen years of age and incarcerated as a convicted prisoner for the first time. He says he signed the document without reading it. His statement continues to the effect that when he was released from the county prison he was taken by a Deputy United States Marshal before the United States District Court, was in the courtroom less than five minutes and that throughout the entire proceedings he spoke no words to anyone nor were any words except the sentence of the Court addressed to him. In the Government’s brief in this Court there is included a copy of a Federal Bureau of Investigation report on petitioner. In the document denominated “Reply Brief” the latter vigorously disputes the correctness of entries in this report. We cannot find error on the part of the trial judge upon the basis of the allegation of facts brought to us for the first time. If the present litigation were a civil case, with an appellant represented by counsel, we should have no hesitation in refusing to consider as part of an appeal allegations of fact not presented to the court below. This case is on a different basis. The appellant represents himself to be a person of limited education, he is conducting his own appeal in forma pauperis. We should not, and do not, apply to him requirements imposed in the usual case for the purpose of securing orderly administration of judicial business. The appellant’s story may or may not be established as a fact if opportunity is given for hearing evidence and deciding facts. If his statements are found to be true the conclusion may well be that he was deprived of constitutional protection by the over-zealousness of Government officers. It may be true that even the setting aside of this conviction would not help the appellant; that he has been convicted of other felonies, and a petition to the New York courts must fail in any event. Appellant says that his record shown in the Federal Bureau of Investigation report is incorrect. We have no way of knowing whether it is or not. Only a hearing of the facts can establish the truth or falsity of these allegations. There is a further point stressed by counsel for the Government. It is that there is no way by which this case, thus sought to be reopened by motion many years after the term has expired in which the judgment of conviction was had, may be opened. Certain it is that the time for motion for a new trial or for an appeal has long since passed. Habeas corpus is not available in this district as petitioner is not here confined. The Supreme Court has expressly refrained from passing upon the question whether district courts may exercise in criminal cases a correctional jurisdiction at subsequent terms. We think, however, a court is not helpless to remedy an injustice, if one is proved to have been committed, which goes to the extent of depriving a man of his constitutional rights. The motion in the particular case may be treated, for this purpose, as a modern substitute for the ancient writ of error coram nobis. We think the present question involving protection of one’s rights under the constitution is just as fundamental as those for the protection of which this time honored writ was devised and used in the early common law procedure. The judgment of the District Court is, therefore, vacated and the case remanded to that court to give the petitioner an opportunity to present evidence to establish his allegations of fact which would show that his original conviction was in violation of his rights under the Sixth Amendment of the Constitution of the United States. Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; see also Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435. Walker v. Johnston, 1941, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830. Evans v. Rives, 1942, 75 U.S.App.D.C. 242, 126 F.2d 633; the opinion of the court collects the recent federal decisions on the subject. The citations need not be repeated here. O’Keith v. Johnston, 9 Cir., 1942, 129 F.2d 889, 890. See rules 2 and 3 of the Rules of Criminal Procedure, 18 U.S.C.A. following Section 688. United States ex rel. Harrington v. Schlotfeldt, 7 Cir., 1943, 136 F.2d 935; Jones v. Biddle, 8 Cir., 1942, 131 F.2d 853, certiorari denied, 1943, 318 U.S. 784, 63 S.Ct. 856, 87 L.Ed. 1152, rehearing denied, 1943, 319 U.S. 780, 784, 785, 63 S.Ct. 1027, 1325, 1431, 87 L.Ed. 1725, 1728; United States ex rel. Belardi v. Day, 3 Cir., 1931, 50 F.2d 816. United States v. Mayer, 1914, 235 U.S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129. For a discussion of the writ by a modern case authority see Orfield, The Writ of Error Coram Nobis in Civil Practice (1934) 20 Ya.L.Rev. 423. Question: What is the specific issue in the case within the general category of "criminal"? A. federal offense B. state offense C. not determined whether state or federal offense 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. In re MORRISTOWN & ERIE RAILROAD COMPANY. Appeal of MORRISTOWN & ERIE RAILWAY, INC., Appellant. No. 89-5077. United States Court of Appeals, Third Circuit. Argued July 17, 1989. Decided Sept. 15, 1989. Roger C. Ward (argued), Steven J. Hal-pern, Pitney, Hardin, Kipp & Szuch, Mor-ristown, N.J., for appellant. David J. Sheehan (argued), Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, N.J., for appellee. Peter N. Perretti, Jr., Atty. Gen. of New Jersey, Kenneth W. Elwell, Deputy Atty. Gen., State of N.J., Div. of Law, Environmental Protection Section, Trenton, N.J., for New Jersey Dept, of Environmental Protection. Before STAPLETON, SCIRICA and ROSENN, Circuit Judges. OPINION OF THE COURT STAPLETON, Circuit Judge: This appeal raises an issue concerning the scope of a district court’s injunctive powers under section 105(a) of the Bankruptcy Code. The trustee in bankruptcy, seeking to expedite the bankruptcy proceedings, sought an order from the district court requiring the Morristown & Erie Railway (the Railway) to supply financial assurance and apply for a permit from the New Jersey Department of Environmental Protection (DEP) that would allow the trustee to convey certain real property of the debtor’s to the Railway. The district court issued a mandatory injunction to that effect. We hold that the district court had no authority to do so under section 105(a) and we will therefore reverse. I. The Morristown & Erie Railroad Co. (the Debtor) has been in bankruptcy proceedings since 1977. The Morristown & Erie Railway (the Railway) operated the Debt- or’s railroad prior to the approval in 1982 of a reorganization plan proposed by, among others, the Railway. Under the plan, the Railway agreed to purchase all of the Debtor’s operating assets and all of its real property. Since approval of the plan, the Railway has operated the railroad for its own account. In 1986, the Railway entered into a tripartite agreement with the Trustee (John L. Ard) and the Prudential Insurance Co. Pursuant to the agreement, Prudential agreed to purchase certain of the Debtor’s real property subject to the reorganization plan. The proceeds of the sale were split between the Trustee and the Railway. Under this agreement, the Railway assumed liability for the costs of bringing a parcel of the Debtor’s property, known as the Rockaway site, into compliance with the New Jersey Environmental Cleanup Responsibility Act, N.J.Stat.Ann. 13:1K-6 et seq. (ECRA). The parties believed that the Rockaway site might present environmental problems, and under ECRA, real property containing an “industrial establishment” cannot be conveyed without DEP approval. Accordingly, the parties agreed that the Railway would withhold the $80,000 purchase price for Rockaway until conveyance was cleared by the DEP. This agreement was not reduced to writing. DEP approval proved to be a lengthy and expensive process. First, the Trustee’s environmental consultant submitted a cleanup plan, but the DEP responded that further, expensive steps would have to be taken before it would grant a permit. Railway, concerned with the costs of these measures, then hired its own expert to perform testing and to prepare a plan. The DEP gave conditional approval to this plan, but it also proposed further requirements. Concerned that approval was far from imminent, the Trustee moved the district court to order the Railway to apply to the DEP for an expedited approval, known as an administrative consent order (ACO). Under the usual procedures, the DEP does not issue a permit until it approves a detailed cleanup plan. N.J.Admin.Code 7:26B-4.3 & 5.1. Under the ACO procedures, a detailed cleanup plan does not have to be approved by the DEP. N.J.Admin.Code 7:26B-5.1(c). An ACO may be granted in the discretion of the DEP, but only if financial assurance is supplied in an amount at least equal to the DEP’s estimate of the cleanup cost. N.J.Admin.Code 7:26B-7.3. The financial assurance can be supplied by a purchaser. Id. When an ACO is executed, the land may be conveyed. Id. at 7:26B-5.1(c). The Railway opposed the order on several grounds. First, it noted that the DEP, in determining the amount of security to be posted for an ACO, tends to set the figure very high because the actual scope of the cleanup remains unknown when the ACOs are issued. The Railway therefore asserted, and the Trustee did not disagree, that the DEP was likely to request a bond of between $500,000 and $750,000. The Railway then argued that it was financially unable to supply such assurance. Next, the Railway stated that it feared that the ACO would cut off its rights to explore further its own cleanup proposals, and that it would instead be forced to execute the cleanup in whatever manner would be specified by the DEP. Finally, the Railway challenged the authority of the district court to force the Railway to carry out the ACO application process. The district court grounded its authority to issue the requested order solely on section 105(a) of the Bankruptcy Code. The judge concluded that requiring Railway to apply for and post security for an ACO was warranted because “[t]he creditors cannot be denied their claims for much longer.” The court noted that, even if the Railway did not apply for an ACO but instead took the more time-consuming option of submitting a clean-up plan for DEP approval, the Railway would nevertheless still have to post security to cover cleanup costs under ECRA’s requirements, N.J.Admin.Code 7:26B-6.1. Without further explanation, the district judge concluded that, since “[t]he only question is whether [the Railway] must pay sooner [rather] than later,” App. at 30, he did not need to consider further Railway’s financial-impossibility argument. Finally, as to the Railway’s argument that it needed more time to examine other cleanup options, the court concluded that if in the future the Railway were to formulate less costly cleanup options, they could be submitted to the DEP and the DEP might reduce the amount of the bond. Accordingly, the district court ordered Railway to “initiate, with speed, the process for obtaining an Administrative Consent Order and pay the necessary security under the N.J. Administrative Code.” App. at 30. In resolving a motion for reargument against Railway, the district judge reiterated in somewhat greater detail this rationale, and described his original order as requiring Railway “to provide the requisite financial assurance to the DEP in conjunction with an ACO, if the DEP issues one.” App. at 121. II. On appeal, the Railway argues that it is financially incapable of furnishing the security that the DEP might require for an ACO, and that the district court lacked the authority to issue its injunction. We need only reach the latter issue, since we conclude that the district court misconstrued the nature of its powers under section 105(a). The relevant portion of 11 U.S.C. § 105(a) provides: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. Section 105(a) authorizes the bankruptcy court, or the district court sitting in bankruptcy, to fashion such orders as are required to further the substantive provisions of the Code. Section 105(a) gives the court general equitable powers, but only insofar as those powers are applied in a manner consistent with the Code. See Lawrence P. King, Collier on Bankruptcy ¶ 105.04 at 105-15 & n. 5 (15th ed.1989). Nor does section 105(a) give the court the power to create substantive rights that would otherwise be unavailable under the Code. See Southern Ry. Co. v. Johnson Bronze Co., 758 F.2d 137, 141 (3d Cir.1985) (holding that a bankruptcy court does not have the authority under § 105 to create a lien to secure payment of environmental cleanup costs when the contract obligating the debtor to pay such costs did not provide for such a lien). We turn, then, to the district court’s application of section 105(a) in this case. Despite the fact that the oral agreement was never reduced to writing, the parties agree as to the nature of the Railway's undertaking pursuant to the trilateral agreement with Prudential. Most importantly, the Trustee has not argued that the agreement obligated the Railway to take the steps required of it by the district court’s order. Indeed, the Trustee expressly conceded this point at oral argument. Thus it is clear that the agreement obligated the Railway to assume financial responsibility for the cleanup of the Rockaway parcel, but it did not require the Railway to take steps under New Jersey environmental laws to see that a permit allowing conveyance was obtained. Accordingly, the district judge could not rely on the contract as a source of his power to require the Railway to proceed with the ACO requirements. That being the case, the judge’s exercise of power under section 105(a) was legitimate only to the extent that some provision of the Code gives the Trustee the right to require of parties in the Railway’s position that they shoulder the administrative responsibilities vis-a-vis the debtor’s property that were here imposed upon the Railway. We have not been cited to, nor are we aware of, any such provision. The issue is brought into relief by considering the court’s authority had there been no agreement by the Railway to assume liability for the cleanup of the Rockaway parcel. In such a case, we do not think it could be seriously proposed that the court could force, under the authority of section 105(a) or any other provision of the Code, the Railway to assume that liability. The district court in this case, however, seemed to feel that, having gone as far as it had in assuming financial responsibility, the Railway could be required to incur further responsibilities by virtue of section 105(a). The court believed, in other words, that section 105(a) empowered it to expand the contractual obligations of the parties, if the balance of equities favored such an expansion. Such a proposition runs afoul of the principle that section 105(a) is not a substantive source of rights. Accordingly, the district court was without the authority to order the Railway to apply and post security for the ACO. III. For the foregoing reasons, we will reverse the order of the district court and the case will be remanded to the district court with an instruction that it deny the Trustee’s motion. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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. CAPLIN, TRUSTEE v. MARINE MIDLAND GRACE TRUST CO. OF NEW YORK No. 70-220. Argued March 28, 1972 Decided May 22, 1972 Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, in which Brennan, White, and Blackmun, JJ., joined, post, p. 435. Charles H. Miller argued the cause for petitioner. With him on the briefs were Mortimer M. Caplin, pro se, Henry Winestine, and Leon E. Irish. John W. Dickey argued the cause and filed a brief for respondent. David Ferber argued the cause for the Securities and Exchange Commission urging reversal. With him on the briefs were Solicitor General Griswold, Samuel Huntington, G. Bradford Cook, and Paul Gonson. Mr. Justice Marshall delivered the opinion of the Court. The sole issue in this case is whether petitioner, the trustee in reorganization of Webb & Knapp, Inc., has standing under Chapter X of the Bankruptcy Act, 52 Stat. 883, 11 U. S. C. § 501 et seq., to assert, on behalf of persons holding debentures issued by Webb & Knapp, claims of misconduct by an indenture trustee. The United States District Court for the Southern District of New York held that petitioner lacked the requisite standing, and the United States Court of Appeals for the Second Circuit affirmed en banc, with two judges dissenting, 439 F. 2d 118 (1971). We granted certiorari, 404 U. S. 982 (1971), and we now affirm the decision of the Court of Appeals. I Webb & Knapp and its numerous subsidiaries were engaged in various real estate activities in both the United States and Canada. In 1954, the corporation executed an indenture with respondent, the Marine Midland Trust Company of New York (Marine), that provided for the issuance by Webb & Knapp of 5% debentures in the total amount of $8,607,600. A critical part of the indenture was the promise by Webb & Knapp that neither it nor any company affiliated with it would incur or assume “any indebtedness resulting from money borrowed or from the purchase of real property or interests in real property ... or purchase any real property or interests in real property” unless the company’s consolidated tangible assets, as defined in the indenture, equaled 200% of certain liabilities, after giving effect to the contemplated indebtedness or purchase. By requiring the company to maintain an asset-liability ratio of 2:1, the indenture sought to protect debenture purchasers by providing a cushion against any losses that the company might suffer in the ordinary course of business. In order to demonstrate continuing compliance with the requirements of the indenture, Webb & Knapp covenanted to file an annual certificate with Marine stating whether the corporation (debtor) had defaulted on any of its responsibilities under the indenture during the preceding year. In its role as indenture trustee, Marine undertook “in case of default ... to exercise such of the rights and powers vested in it by [the] Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.” This undertaking was qualified by language in the indenture that permitted the trustee to rely on the accuracy of certificates or reports of Webb & Knapp, in the absence of bad faith. Commencing in 1959, Webb & Knapp sustained substantial financial losses in every year. Finally, on May 7, 1965, Marine filed a petition in district court seeking the involuntary reorganization of Webb & Knapp under Chapter X of the Bankruptcy Act, 11 U. S. C. § 501 et seq. Pursuant to § 208 of Chapter X, 11 U. S. C. § 608, the Securities and Exchange Commission intervened on May 10, 1965. Marine’s petition was subsequently approved and petitioner was appointed trustee in reorganization on May 18, 1965. With the approval of the District Court, petitioner exercised the powers conferred upon him by 11 U. S. C. § 567 and undertook an extensive investigation of the financial affairs of Webb & Knapp. His investigation showed that the company had total assets of $21,538,621 and total liabilities of $60,036,164, plus contingent tax liabilities of $29,400,000. Included among the liabilities were the 1954 debentures in the principal amount of $4,298,200 plus interest subsequent to the inception of the reorganization proceeding. The investigation led petitioner to conclude that Marine had either willfully or negligently failed to fulfill its obligations under the indenture. Petitioner supported his conclusion with the following allegations: that from 1954 to 1964, Webb & Knapp’s yearly certificates of compliance with the 2:1 asset-liability ratio mandated by the indenture were fraudulent, because they were based on grossly overvalued appraisals of real estate property; that from 1958 to 1964, Webb & Knapp did not have sufficient assets to comply with the terms of the indenture; that Marine should have known or did know of the inflated appraisals; and that because Marine permitted Webb & Knapp to violate the indenture by engaging in transactions that its impaired asset-liability ratio forbade, Webb & Knapp suffered great financial losses. Having obtained the approval of the District Court, petitioner filed an independent action on behalf of the debenture holders against Marine seeking to recover the principal amount of the outstanding debentures as damages for Marine’s alleged bad-faith failure to compel compliance with the terms of the indenture by Webb & Knapp. Petitioner also filed a counterclaim in the same amount against Marine in the reorganization proceeding in which Marine had previously filed a claim for services rendered. In the reorganization proceeding, petitioner also filed an objection to the claim for services rendered, on the ground that even if petitioner could not obtain an affirmative recovery against Marine on behalf of the bondholders, he could at least raise Marine’s improper conduct as a reason why the claim for services rendered should be denied. Finally, petitioner moved to compel an accounting by Marine. Marine moved to dismiss the independent action and the counterclaim, moved to strike the objection to the claim for services rendered, and opposed the motion to compel an accounting. The District Court found that petitioner had no standing in his capacity as a trustee in reorganization under Chapter X of the Bankruptcy Act to raise claims of misconduct by an indenture trustee on behalf of debenture holders and granted both of Marine’s motions to dismiss. Viewing the motion to compel an accounting as merely a third vehicle to raise the same claim on behalf of the debenture holders, the District Court denied that motion also. Only petitioner’s objection to the claim for services rendered was left standing. Petitioner appealed the dismissal of his claims and the denial of his motion for an accounting to the Court of Appeals. Marine filed a cross-appeal from the denial of its motion to strike petitioner’s objection to the claim for services rendered. The Court of Appeals affirmed the decision of the District Court in its entirety. H-1 h — I The issue confronting us has never before been presented to this Court. It is an issue that has only rarely been presented to other courts, and on those rare occasions, it has caused even the most able jurists to disagree. The first time the issue arose was in Clarke v. Chase National Bank, 137 F. 2d 797 (CA2 1943). Judge Augustus Hand wrote the opinion of the court holding that a trustee in reorganization did not have standing to sue a third party on behalf of bondholders. Judge Learned Hand disagreed and dissented. It is this decision that the lower courts found controlling in the instant case. The Clarke case is, in fact, the only other case in which the issue that is raised here was squarely presented. The issue is a difficult one, and, as we point out later, it is one that is capable of resolution by explicit congressional action. Lacking a specific legislative statement on this issue, we must resolve it as best we can by examining the nature of Chapter X proceedings, the role of the trustee in reorganization, and the way in which standing to sue on behalf of debenture holders would affect or change that role. Chapter X, enacted in 1938, stemmed from a comprehensive SEC study that disclosed widespread abuses under the then-existing provisions for business reorganizations. See Securities and Exchange Commission, Report on the Study and Investigation of the Work, Activities, Personnel and Functions of Protective and Reorganization Committees (1937-1940). This same study gave birth the following year to the Trust Indenture Act of 1939, 53 Stat. 1149, 15 U. S. C. § 77aaa et seq., which is discussed infra. In enacting Chapter X, Congress had protection of public investors primarily in mind. SEC v. American Trailer Rentals Co., 379 U. S. 594 (1965). “The aims of Chapter X . . . were to afford greater protection to creditors and stockholders by providing greater judicial control over the entire proceedings and impartial and expert administrative assistance in corporate reorganizations through appointment of a disinterested trustee and the active participation of the SEC.” Id., at 604. In contradistinction to a bankruptcy proceeding where liquidation of a corporation and distribution of its assets is the goal, a Chapter X proceeding is for purposes of rehabilitating the corporation and reorganizing it. Ibid. Chapter X proceedings are not limited to insolvent corporations but are open to those corporations that are solvent in the bankruptcy (asset-liability) sense but are unable to meet their obligations as they mature. United States v. Key, 397 U. S. 322, 329 (1970); 11 U. S. C. §530 (1). The trustee in reorganization is the center of the statutory scheme. H. R. Rep. No. 1409, 75th Cong., 1st Sess., 43, 44. Title 11 U. S. C. § 567 gives the trustee broad powers: “The trustee upon his appointment and qualification— “(1) shall, if the judge shall so direct, forthwith investigate the acts, conduct, property, liabilities, and financial condition of the debtor, the operation of its business and the desirability of the continuance thereof, and any other matter relevant to the proceeding or to the formulation of a plan, and report thereon to the judge; “(2) may, if the judge shall so direct, examine the directors and officers of the debtor and any other witnesses concerning the foregoing matters or any of them; “(3) shall report to the judge any facts ascertained by him pertaining to fraud, misconduct, mismanagement and irregularities, and to any causes of action available to the estate; “(5) shall, at the earliest date practicable, prepare and submit a brief statement of his investigation of the property, liabilities, and financial condition of the debtor, the operation of its business and the desirability of the continuance thereof, in such form and manner as the judge may direct, to the creditors, stockholders, indenture trustees, the Securities and Exchange Commission, and such other persons as the judge may designate; and “(6) shall give notice to the creditors and stockholders that they may submit to him suggestions for the formulation of a plan, or proposals in the form of plans, within a time therein named.” Title 11 U. S. C. § 587 expands these powers: “Where not inconsistent with the provisions of this chapter, a trustee, upon his appointment and qualification, shall be vested with the same rights, be subject to the same duties, and exercise the same powers as a trustee appointed under section 72 of this title, and, if authorized by the judge, shall have and may exercise such additional rights and powers as a receiver in equity would have if appointed by a court of the United States for the property of the debtor.” The powers given a trustee appointed under § 72 are set forth in a footnote. Petitioner argues that these powers are broad enough to encompass a suit on behalf of debenture holders against an indenture trustee who has acted in bad faith, and who has, therefore, violated the indenture and the Trust Indenture Act of 1939-, 15 U. S. C. § 77aaa et seg. As pointed out above, the Trust Indenture Act was passed one year after Chapter X was enacted. Prior to its enactment, indenture trustees immunized themselves from any liability for either deliberate or negligent misconduct by writing exculpatory provisions into the indenture. Even in cases where misconduct by the indenture trustee was the proximate cause of injury to debenture holders, they found themselves impotent under the terms of most indentures to take action against the trustee. See generally 2 L. Loss, Securities Regulation 719-725 (2d ed. 1961). This problem and others are specifically mentioned in 15 U. S. C. § 77bbb as establishing a necessity for regulation. The regulation provided by the Act takes many forms. 15 U. S. C. § 77eee requires that whenever securities covered by the Trust Indenture Act are also covered by the registration provisions of the Securities Act of 1933, 48 Stat. 74, 15 U. S. C. § 77a et seg., certain information about the indenture trustee and the terms of the indenture must be included in the registration statement. Title 15 U. S. C. § 77ggg provides that when securities are not registered under the 1933 Act but are covered by the Trust Indenture Act, the indenture must be “qualified” by the SEC before it is legal to sell the securities. Standards for eligibility and disqualification of a trustee are established by 15 U. S. C. § 77jjj, and the duties and responsibilities of a trustee are enumerated in 15 U. S. C. § 77ooo. The indenture giving rise to this litigation was qualified by the SEC pursuant to the Trust Indenture Act of 1939. By alleging that the indenture trustee negligently or intentionally failed to prevent Webb & Knapp from violating the terms of the indenture, petitioner clearly alleges a violation of the 1939 legislation, 15 U. S. C. § 77ooo. But the question remains whether petitioner is a proper party to take corrective action. Petitioner urges that the reorganization trustee is in a far better position than debt investors to discover and to prosecute claims based on the alleged failure of an indenture trustee to live up to the provisions of the indenture. He points to 11 U. S. C. § 567, set forth supra, and emphasizes that not only does the reorganization trustee have possession of the records of the debtor, but he also has a statutory duty to investigate the debtor’s affairs and to “report to the judge any facts ascertained by him pertaining to fraud, misconduct, mismanagement and irregularities, and to any causes of action available to the estate.” Reference is made, too, to 15 U. S. C. § 77bbb (a)(1), which states that one of the problems Congress saw with respect to misconduct by indenture trustees was that “(A) individual action by ... investors for the purpose of protecting and enforcing their rights is rendered impracticable by reason of the disproportionate expense of taking such action, and (B) concerted action by such investors in their common interest through representatives of their own selection is impeded by reason of the wide dispersion of such investors through many States, and by reason of the fact that information as to the names and addresses of such investors generally is not available to such investors.” Finally, petitioner asserts that to give him standing to sue on behalf of debenture holders will not encourage vexatious litigation or unduly deplete the resources of the debtor that he has been appointed to reorganize. He supports the first half of this proposition by noting that any action he takes is subject to the supervision of the District Court and to intervention by the SEC. The second half of the proposition finds support in the argument discussed above that petitioner already has a duty of investigation and that the minimal additional burden of prosecuting a lawsuit will not be great. At first blush, petitioner’s theory, adopted in the opinion of the dissenters in the Court of Appeals, seems reasonable. But, there are three problems with petitioner’s argument and these problems require that his position be rejected. First, Congress has established an elaborate system of controls with respect to indenture trustees and reorganization proceedings, and nowhere in the statutory scheme is there any suggestion that the trustee in reorganization is to assume the responsibility of suing third parties on behalf of debenture holders. The language, in fact, indicates that Congress had no such intent in mind. The statute, 11 U. S. C. § 567 (3), gives the trustee the right, and indeed imposes the duty, to investigate fraud and misconduct .and to report to the judge the potential causes of action “available to the estate.” Even assuming that this section is read as if the quoted words were not present, and that it authorizes a trustee in reorganization to report whether he believes an indenture trustee has violated a duty to third-party debenture holders, there is nothing in the section that enables him to collect money not owed to the estate. Nor is there anything in 11 U. S. C. § 110, set forth in relevant part in footnote 14, supra, that gives him this authority. His task is simply to “collect and reduce to money the property of the estates for which [he is trustee].” 11 U. S. C. § 75. The only support petitioner finds in the relevant statutes is in that portion of 11 U. S. C. § 587 which gives reorganization trustees the additional rights that a “receiver in equity would have if appointed by a court of the United States for the property of the debtor.” Petitioner relies on McCandless v. Furlaud, 296 U. S. 140 (1935), to support the proposition that a receiver in equity may sue third parties on behalf of bondholders. But, the opinion of the Court by Mr. Justice Cardozo clearly emphasizes that the receiver in that case was suing on behalf of the corporation, not third parties; he was simply stating the same claim that the corporation could have made had it brought suit prior to entering receivership. The debtor corporation makes no such claim in this case. See generally 2 It. Clark, Law and Practice of Receivers § 362, at 619 (3d ed. 1959). This brings us to the second problem with petitioner’s argument. Nowhere does petitioner argue that Webb & Knapp could make any claim against Marine. Indeed, the conspicuous silence on this point is a tacit admission that no such claim could be made. Assuming that petitioner’s allegations of misconduct on the part of the indenture trustee are true, petitioner has at most described a situation where Webb & Knapp and Marine were in pari delicto. Whatever damage the debenture holders suffered, under petitioner’s theory Webb & Knapp is as much at fault as Marine, if not more so. A question would arise, therefore, whether Marine would be entitled to be subrogated to the claims of the debenture holders. The Court of Appeals thought that subrogation would be required, 439 F. 2d, at 122. If the Court of Appeals is correct, it is then difficult to see what advantage there is in giving petitioner standing to sue, for as Chief Judge Friendly noted in his opinion for the court below: “It is necessary in the first instance to consider what effect a recovery by the Chapter X Trustee would have on the reorganization. On a superficial view this might seem substantial — if, for example, the Chapter X Trustee were to achieve a complete recovery, the debenture holders would be paid off and it might seem there would be that much more for the other creditors and the stockholders. But this pleasant prospect speedily evaporates when the law of subrogation is brought into play. As a result of subrogation, Marine would simply be substituted for the debenture holders as the claimant. Cf. ALI, Restatement of Security § 141 (1941). If the Chapter X Trustee recovered judgment in a lesser amount, the claim of the debenture holders would still be provable in full, with the division of the proceeds between them and Marine dependent upon the results of the reorganization, and other creditors or stockholders would not be affected.” 439 F. 2d, at 122. Even if the Court of Appeals is incorrect in its view of the propriety of subrogation under the facts of this case, the fact remains that in every reorganization there is going to be a question of how much the trustee in reorganization should be permitted to recover on behalf of the debenture holders. The answer is, of course, whatever he cannot recoup from the corporation. Once this is recognized, the wisdom of Judge Augustus Hand in Clarke v. Chase National Bank, 137 F. 2d, at 800, becomes readily apparent: “Each creditor, including the debenture-holders, can prove the full amount of his claim, and only to the extent that a debenture-holder fails to satisfy it from the bankruptcy estate will he suffer a loss which he can assert against the defendant through its failure to enforce the negative covenants.” In other words, debenture holders will not be able to recover damages from the indenture trustee until the reorganization is far enough along so that a reasonable approximation can be made as to the extent of their losses, if any. It is difficult to see precisely why it is at that point that the trustee in reorganization should represent the interests of the debenture holders, who are capable of deciding for themselves whether or not it is worthwhile to seek to recoup whatever losses they may have suffered by an action against the indenture trustee. Petitioner appears to concede that any suit by debenture holders would not affect the interests of other parties to the reorganization, assuming that the Court of Appeals is correct on the subrogation point. It would seem, therefore, that the debenture holders, the persons truly affected by the suit against Marine, should make their own assessment of the respective advantages and disadvantages, not only of litigation, but of various theories of litigation. This brings us to the third problem with petitioner’s argument: i. e., a suit by him on behalf of debenture holders may be inconsistent with any independent actions that they might bring themselves. Petitioner and the SEC make very plain their position that a suit by the trustee in reorganization does not pre-empt suits by individual debenture holders. They maintain, however, that it would be unlikely that such suits would be brought since the debenture holders could reasonably expect that the trustee would vigorously prosecute the claims of all debt investors. But, independent actions are still likely because it is extremely doubtful that the trustee and all debenture holders would agree on the amount of damages to seek, or even on the theory on which to sue. Moreover, if the indenture trustee wins the suit brought by the trustee in reorganization, unless the debenture holders are bound by that victory, the proliferation of litigation that petitioner seeks to avoid would then ensue. Finally, a question would arise as to who was bound by any settlement. Rule 23 of the Federal Rules of Civil Procedure, which provides for class actions, avoids some of these difficulties. It is surely a powerful remedy and one that is available to all debenture holders. Some of the factors that formerly deterred such actions have been changed by the Trust Indenture Act of 1939. Title 15 U. S. C. § 77III, for example, now requires that the debtor corporation maintain lists of debenture holders that it must turn over to the indenture trustees at regular intervals. Such lists are available to the individual debenture holders upon request. Debenture holders would also be able to take advantage of any information obtained by the trustee in reorganization as a result of the investigation which the statute requires that he make. In addition, petitioner himself maintains that counsel fees would be recoverable if the action was successful. Brief for Petitioner 20; cf. 15 U. S. C. § 77nnn. Thus, there is no showing whatever that by giving petitioner standing to sue on behalf of the debenture holders we would reduce litigation. On the contrary, there is every indication that litigation would be increased, or at least complicated. Ill For the reasons discussed above we conclude that petitioner does not have standing to sue an indenture trustee on behalf of debenture holders. This does not mean that it would be unwise to confer such standing on trustees in reorganization. It simply signifies that Congress has not yet indicated even a scintilla of an intention to do so, and that such a policy decision must be left to Congress and not to the judiciary. Congress might well decide that reorganizations have not fared badly in the 34 years since Chapter X was enacted and that the status quo is preferable to inviting new problems by making changes in the system. Or, Congress could determine that the trustee in a reorganization was so well situated for bringing suits against indenture trustees that he should be permitted to do so. In this event, Congress might also determine that the trustee’s action was exclusive, or that it should be brought as a class action on behalf of all debenture holders, or perhaps even that the debenture holders should have the option of suing on their own or having the trustee sue on their behalf. Any number of alternatives are available. Congress would also be able to answer questions regarding subrogation or timing of law suits before these questions arise in the context of litigation. Whatever the decision, it is one that only Congress can make. Accordingly, the judgment of the Court of Appeals is Affirmed. The District Court delivered three separate opinions in this case. They are unreported, but are included in the appendix prepared by the parties at 58a-70a. The Court of Appeals heard the case en banc after a panel of three judges determined that it was inclined to overrule the case on which the District Court had placed almost exclusive reliance. 439 F. 2d 118. Those companies in the affiliated group include any corporation that was entitled to be included in a consolidated tax return of Webb & Knapp. See 26 U. S. C. § 1602. Section 1.1 of the Indenture gave Webb & Knapp authority to consider other companies as affiliates if it chose to do so. Indenture of June 1, 1954, Webb &, Knapp, Inc., to the Marine Midland Trust Company of New York § 3.6 (hereinafter referred to as Indenture). Indenture § 3.11. Indenture § 10.1 (a). This was also a statutory duty. See 15 U. S. C. § 77ooo. Indenture § 10.1 (d). Webb & Knapp showed a loss for tax purposes each year, although the company did show a gain on its books for 1961 attributable to a write-up of property owned by a wholly owned subsidiary of a company in which Webb & Knapp held 50% of the stock. The SEC has supported petitioner throughout this litigation. The agency is “an unnamed respondent before this Court.” See Protective Committee v. Anderson, 390 U. S. 414, 420 n. 3 (1968). When referring to arguments made by petitioner, this opinion assumes, unless otherwise stated, that the SEC has made the same arguments. The difference between this amount and the amount of the debentures originally issued represents the amount of the principal that Webb & Knapp had repaid. These are merely allegations of petitioner, not findings of the lower courts. Because the District Court and the Court of Appeals held that petitioner had no standing, they had no occasion to consider the validity of the allegations. In its capacity as indenture trustee, Marine also filed a nlaim on behalf of all the debenture holders for the unpaid principal on the debentures. This objection differs from the other claims in one respect: i. e., it is an attempt to preserve the remaining assets of the debtor for all creditors other than Marine, whereas the other claims represent an attempt by the petitioner to increase the assets of the debtor for the benefit of a specific class of creditors, the- debenture holders. Although Marine appealed' the ruling of the District Court denying its motion to strike the objection, it did not seek review here of the decision of the Court of Appeals affirming the District Court on this issue. This issue is, therefore, not before us, and we offer no opinion on the propriety of the lower courts’ ruling. Petitioner and the two dissenting judges in the Court of Appeals argue that the issue was presented in Prudence-Bonds Corp. v. State Street Trust Co., 202 F. 2d 555 (CA2), cert. denied, 346 U. S. 835 (1953), and that the decision of the court in that case by Judge Learned Hand overruled Clarke v. Chase National Bank, 137 F. 2d 797 (CA2 1943), sub silentio. They also argue that the issue was presented and decided contrary to Clarke in In re Solar Manufacturing Corp., 200 F. 2d 327 (CA3 1952), cert. denied sub nom. Marine Midland Trust Co. v. McGirl, 345 U. S. 940 (1953). But, the majority of the Court of Appeals found these cases to be distinguishable, and Marine urges that the majority was correct. We do not intend to become enmeshed in this controversy and merely indicate its existence. Title 11 U. S. C. § 110 gives the trustee title to the following “property”: “(a) The trustee of the estate of a bankrupt and his successor or successors, if any, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title ... to all of the following kinds of property wherever located (1) documents relating to his property; (2) interests in patents, patent rights, copyrights, and trade-marks, and in applications therefor ... (3) powers which he might have exercised for his own benefit, but not those which he might have exercised solely for some other person; (4) property transferred by him in fraud of his creditors; (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered ... (6) rights of action arising upon contracts, or usury, or the unlawful taking or detention of or injury to his property; (7) contingent remainders, executory devises and limitations, rights of entry for condition broken, rights or possibilities of reverter, and like interests in real property, which were nonassignable prior to bankruptcy and which, within six months thereafter, become assignable interests or estates or give rise to powers in the bankrupt to acquire assignable interests or estates; and (8) property held by an assignee for the benefit of creditors appointed under an assignment which constituted an act of bankruptcy, which property shall, for the purposes of this title, be deemed to be held by the assignee as the agent of the bankrupt and shall be subject to the summary jurisdiction of the court.” The SEC is given general supervisory powers over indentures in various sections of the Trust Indenture Act. See, e. g., 15 U. S. C. §§ 77ddd (c), (d), (e); 77eee (a), (c); 77ggg; 77sss; 77ttt; 77uuu. In addition, 15 U. S. C. § 77hhh provides that the SEC may order consolidation of reports or certificates filed under the Trust Indenture Act with information or documents filed under the Securities Act of 1933, 48 Stat. 74, 15 U. S. C. § 77a et seq., and the Securities Exchange Act of 1934, 48 Stat. 881, 15 U. S. C. § 78a et seq., the Public Utility Holding Company Act of 1935, 49 Stat. 838, 15 U. S. C. § 79 et seq. The provisions of the indenture discussed previously comply with the requirements of 15 U. S. C. § llooo. While the indenture trustee is not permitted by the statute to exculpate himself from liability for noncompliance with the indenture, the indenture trustee may rely in good faith on certificates or reports filed pursuant to the indenture and in compliance with the provisions thereof. We assume, arguendo, that violation of 15 U.'S. C. § llooo would give rise to a cause of action against an indenture trustee by debenture holders. If there is a cause of action, 15 U. S. C. § 77vw would seem to give federal courts jurisdiction. The Court of Appeals inferred that such suits would be proper, 439 F. 2d, at 123 n. 5, but did not decide the point. Since we conclude that even if such suits may be brought, petitioner lacks standing to bring them, we do not decide the question. It should be noted that the Trust Indenture Act of 1939 was enacted on August 3, 1939. The Federal Rules of Civil Procedure were not even one year old. They were adopted by this Court on December 20, 1937, and they became effective on September 16, 1938, 308 U. S. 647. The class action was a comparatively recent phenomenon with respect to damage actions and it was not tremendously helpful in the early days. See, e. g., Moore, Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft, 25 Geo. L. J. 551, 570-576 (1937); Kalven & Rosenfield, The Contemporary Function of the Class Suit, 8 U. Chi. L. Rev. 684 (1941). It could not be said that the class action was an efficacious remedy in 1939. This point is especially clear in light of the fact that the Court split 5-4 on whether Old Dominion Copper Co. v. Lewisohn, 210 U. S. 206 (1908) (Holmes, J.), was binding in McCandless v. Fur-laud. The issue in the controversial Old Dominion case was whether a corporation - had a cause of action against promoter-director-stoekholders. If petitioner could sue on behalf of Webb & Knapp, the statute that requires that he report possible causes of action to the court would require mention of this cause of action. Moreover, petitioner has brought every conceivable claim that is available to him as trustee. Not only has he brought this action against the indenture trustee, but he has also sued former officers of Webb & Knapp charging them with waste. Brief for SEC 5-6. Certain settlements have apparently been made in some of these other actions. Brief for Respondent 45 n. 18. Three private actions have been brought by debenture holders against Marine, one in federal court and two in state court. See Brief for Petitioner 21 n. 9. These suits make the same claims made by the petitioner in the instant case, as well as others which he has not made, including alleged violations of the securities laws. The trustee may well have interests that differ from those of the bondholders. For example, petitioner has sued not only Marine, but also the former officers of Webb & Knapp. See n. 20, supra. In settling the suits brought against the officers, petitioner may well take positions that conflict with those he would take in a suit against Marine. The conflict may at times be unfavorable to the debenture holders. One answer obviously is that the District Court and the SEC can take action to prevent any such conflict from developing, e. g., by denying the trustee in reorganization the right to sue on behalf of debenture holders in selected cases. The problem with this answer is that the conflict may not appear until the suit is well under way. In such a case the debenture holders might regret placing their 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:
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. MARSH, NEBRASKA STATE TREASURER, et al. v. CHAMBERS No. 82-23. Argued April 20, 1983 — Decided July 5, 1983 ShanlerD. Cronk, Assistant Attorney General of Nebraska, argued the cause for petitioners. With him on the briefs was Paul L. Douglas, Attorney General. Herbert J. Friedman argued the cause for respondent. With him on the brief were Stephen L. Pevar, Burt Neubome, and Charles S. Sims Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Geller, Kathryn A. Oberly, Leonard Schaitman, and Michael Jay Singer filed a brief for the United States as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed by Nathan Z. Dershowitz and Marc D. Stem for the American Jewish Congress; by David J. Eiseman, Justin J. Finger, and Jeffrey P. Sinensky for the Anti-Defamation League of B’nai Brith; and by Thomas P. Gies for Jon Garth Murray et al. Lanny M. Proffer filed a brief for the National Conference of State Legislatures as amicus curiae. Chief Justice Burger delivered the opinion of the Court. The question presented is whether the Nebraska Legislature’s practice of opening each legislative day with a prayer by a chaplain paid by the State violates the Establishment Clause of the First Amendment. I — I The Nebraska Legislature begins each of its sessions with a prayer offered by a chaplain who is chosen biennially by the Executive Board of the Legislative Council and paid out of public funds. Robert E. Palmer, a Presbyterian minister, has served as chaplain since 1965 at a salary of $319.75 per month for each month the legislature is in session. Ernest Chambers is a member of the Nebraska Legislature and a taxpayer of Nebraska. Claiming that the Nebraska Legislature’s chaplaincy practice violates the Establishment Clause of the First Amendment, he brought this action under 42 U. S. C. § 1983, seeking to enjoin enforcement of the practice. After denying a motion to dismiss on the ground of legislative immunity, the District Court held that the Establishment Clause was not breached by the prayers, but was violated by paying the chaplain from public funds. 504 F. Supp. 585 (Neb. 1980). It therefore enjoined the legislature from using public funds to pay the chaplain; it declined to enjoin the policy of beginning sessions with prayers. Cross-appeals were taken. The Court of Appeals for the Eighth Circuit rejected arguments that the case should be dismissed on Tenth Amendment, legislative immunity, standing, or federalism grounds. On the merits of the chaplaincy issue, the court refused to treat respondent’s challenges as separable issues as the District Court had done. Instead, the Court of Appeals assessed the practice as a whole because “[pjarsing out [the] elements” would lead to “an incongruous result.” 675 F. 2d 228, 233 (1982). Applying the three-part test of Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971), as set out in Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 773 (1973), the court held that the chaplaincy practice violated all three elements of the test: the purpose and primary effect of selecting the same minister for 16 years and publishing his prayers was to promote a particular religious expression; use of state money for compensation and publication led to entanglement. 675 F. 2d, at 234-235. Accordingly, the Court of Appeals modified the District Court’s injunction and prohibited the State from engaging in any aspect of its established chaplaincy practice. We granted certiorari limited to the challenge to the practice of opening sessions with prayers by a state-employed clergyman, 459 U. S. 966 (1982), and we reverse. I — I I — I The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom. In the very courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this case, the proceedings opened with an announcement that concluded, “God save the United States and this Honorable Court.” The same invocation occurs at all sessions of this Court. The tradition in many of the Colonies was, of course, linked to an established church, but the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain. See, e. g., 1 J. Continental Cong. 26 (1774); 2 id., at 12 (1775); 5 id., at 530 (1776); 6 id., at 887 (1776); 27 id., at 683 (1784). See also 1 A. Stokes, Church and State in the United States 448-450 (1950). Although prayers were not offered during the Constitutional Convention, the First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer. Thus, on April 7, 1789, the Senate appointed a committee “to take under consideration the manner of electing Chaplains.” S. Jour., 1st Cong., 1st Sess., 10 (1820 ed.). On April 9, 1789, a similar committee was appointed by the House of Representatives. On April 25, 1789, the Senate elected its first chaplain, id., at 16; the House followed suit on May 1, 1789, H. R. Jour., 1st Cong., 1st Sess., 26 (1826 ed.). A statute providing for the payment of these chaplains was enacted into law on September 22, 1789. 2 Annals of Cong. 2180; §4, 1 Stat. 71. On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights, S. Jour., supra, at 88; H. R. Jour., supra, at 121. Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress. It has also been followed consistently in most of the states, including Nebraska, where the institution of opening legislative sessions with prayer was adopted even before the State attained statehood. Neb. Jour, of Council, General Assembly, 1st Sess., 16 (Jan. 22, 1856). Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns. In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress — their actions reveal their intent. An Act “passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, ... is contemporaneous and weighty evidence of its true meaning.” Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297 (1888). In Walz v. Tax Comm’n, 397 U. S. 664, 678 (1970), we considered the weight to be accorded to history: “It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice ... is not something to be lightly cast aside.” No more is Nebraska’s practice of over a century, consistent with two centuries of national practice, to be cast aside. It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable. In applying the First Amendment to the states through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U. S. 296 (1940), it would be incongruous to interpret that Clause as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government. This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged. We conclude that legislative prayer presents no more potential for establishment than the provision of school transportation, Everson v. Board of Education, 330 U. S. 1 (1947), beneficial grants for higher education, Tilton v. Richardson, 403 U. S. 672 (1971), or tax exemptions for religious organizations, Walz, supra. Respondent cites Justice Brennan’s concurring opinion in Abington School Dist. v. Schempp, 374 U. S. 203, 237 (1963), and argues that we should not rely too heavily on “the advice of the Founding Fathers” because the messages of history often tend to be ambiguous and not relevant to a society far more heterogeneous than that of the Framers, id., at 240. Respondent also points out that John Jay and John Rutledge opposed the motion to begin the first session of the Continental Congress with prayer. Brief for Respondent 60. We do not agree that evidence of opposition to a measure weakens the force of the historical argument; indeed it infuses it with power by demonstrating that the subject was considered carefully and the action not taken thoughtlessly, by force of long tradition and without regard to the problems posed by a pluralistic society. Jay and Rutledge specifically grounded their objection on the fact that the delegates to the Congress “were so divided in religious sentiments . . . that [they] could not join in the same act of worship.” Their objection was met by Samuel Adams, who stated that “he was no bigot, and could hear a prayer from a gentleman of piety and virtue, who was at the same time a friend to his country.” C. Adams, Familiar Letters of John Adams and his Wife, Abigail Adams, during the Revolution 37-38, reprinted in Stokes, at 449. This interchange emphasizes that the delegates did not consider opening prayers as a proselytizing activity or as symbolically placing the government’s “official seal of approval on one religious view,” cf. 675 F. 2d, at 234. Rather, the Founding Fathers looked at invocations as “conduct whose . . . effect. . . harmonize[d] with the tenets of some or all religions.” McGowan v. Maryland, 366 U. S. 420, 442 (1961). The Establishment Clause does not always bar a state from regulating conduct simply because it “harmonizes with religious canons.” Id., at 462 (Frankfurter, J., concurring). Here, the individual claiming injury by the practice is an adult, presumably not readily susceptible to “religious indoctrination,” see Tilton, supra, at 686; Colo v. Treasurer & Receiver General, 378 Mass. 550, 559, 392 N. E. 2d 1195, 1200 (1979), or peer pressure, compare Abington, supra, at 290 (Brennan, J., concurring). In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an “establishment” of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, “[w]e are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U. S. 306, 313 (1952). h-H I — i We turn then to the question of whether any features of the Nebraska practice violate the Establishment Clause. Beyond the bare fact that a prayer is offered, three points have been made: first, that a clergyman of only one denomination — Presbyterian—has been selected for 16 years; second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo-Christian tradition. Weighed against the historical background, these factors do not serve to invalidate Nebraska’s practice. The Court of Appeals was concerned that Palmer’s long tenure has the effect of giving preference to his religious views. We cannot, any more than Members of the Congresses of this century, perceive any suggestion that choosing a clergyman of one denomination advances the beliefs of a particular church. To the contrary, the evidence indicates that Palmer was reappointed because his performance and personal qualities were acceptable to the body appointing him. Palmer was not the only clergyman heard by the legislature; guest chaplains have officiated at the request of various legislators and as substitutes during Palmer’s absences. Tr. of Oral Arg. 10. Absent proof that the chaplain’s reappointment stemmed from an impermissible motive, we con-elude that his long tenure does not in itself conflict with the Establishment Clause. Nor is the compensation of the chaplain from public funds a reason to invalidate the Nebraska Legislature’s chaplaincy; remuneration is grounded in historic practice initiated, as we noted earlier, supra, at 788, by the same Congress that drafted the Establishment Clause of the First Amendment. The Continental Congress paid its chaplain, see, e. g., 6 J. Continental Cong. 887 (1776), as did some of the states, see, e. g., Debates of the Convention of Virginia 470 (June 26, 1788). Currently, many state legislatures and the United States Congress provide compensation for their chaplains, Brief for National Conference of State Legislatures as Ami-cus Curiae 3; 2 U. S. C. §§61d and 84-2 (1982 ed.); H. R. Res. 7, 96th Cong., 1st Sess. (1979). Nebraska has paid its chaplain for well over a century, see 1867 Neb. Laws 85, §§2-4 (June 21, 1867), reprinted in Neb. Gen. Stat. 459 (1873). The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer. We do not doubt the sincerity of those, who like respondent, believe that to have prayer in this context risks the beginning of the establishment the Founding Fathers feared. But this concern is not well founded, for as Justice Goldberg aptly observed in his concurring opinion in Abington, 374 U. S., at 308: “It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.” The unbroken practice for two centuries in the National Congress and for more than a century in Nebraska and in many other states gives abundant assurance that there is no real threat “while this Court sits,” Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928) (Holmes, J., dissenting). The judgment of the Court of Appeals is Reversed. Rules of the Nebraska Unicameral, Rules 1, 2, and 21. These prayers are recorded in the Legislative Journal and, upon the vote of the legislature, collected from time to time into prayerbooks, which are published at public expense. In 1975, 200 copies were printed; prayerbooks were also published in 1978 (200 copies), and 1979 (100 copies). In total, publication costs amounted to $458.56. Respondent named as defendants State Treasurer Frank Marsh, Chaplain Palmer, and the members of the Executive Board of the Legislative Council in their official capacity. All appear as petitioners before us. The District Court also enjoined the State from using public funds to publish the prayers, holding that this practice violated the Establishment Clause. Petitioners have represented to us that they did not challenge this facet of the District Court’s decision, Tr. of Oral Arg. 19-20. Accordingly, no issue as to publishing these prayers is before us. Petitioners also sought review of their Tenth Amendment, federalism, and immunity claims. They did not, however, challenge the Court of Appeals’ decision as to standing and we agree that Chambers, as a member of the legislature and as a taxpayer whose taxes are used to fund the chaplaincy, has standing to assert this claim. The practice in Colonies with established churches is, of course, not dis-positive of the legislative prayer question. The history of Virginia is instructive, however, because that Colony took the lead in defining religious rights. In 1776, the Virginia Convention adopted a Declaration of Rights that included, as Article 16, a guarantee of religious liberty that is considered the precursor of both the Free Exercise and Establishment Clauses. 1 B. Schwartz, The Bill of Rights: A Documentary History 231-236 (1971); S. Cobb, The Rise of Religious Liberty in America 491-492 (1970). Virginia was also among the first to disestablish its church. Both before and after disestablishment, however, Virginia followed the practice of opening legislative sessions with prayer. See, e. g., J. House of Burgesses 34 (Nov. 20, 1712); Debates of the Convention of Virginia 470 (June 2, 1788) (ratification convention); J. House of Delegates of Va. 3 (June 24, 1788) (state legislature). Rhode Island’s experience mirrored that of Virginia. That Colony was founded by Roger Williams, who was among the first of his era to espouse the principle of religious freedom. Cobb, supra, at 426. As early as 1641, its legislature provided for liberty of conscience. Id., at 430. Yet the sessions of its ratification convention, like Virginia’s, began with prayers, see W. Staples, Rhode Island in the Continental Congress, 1765-1790, p. 668 (1870) (reprinting May 26, 1790, minutes of the convention). History suggests that this may simply have been an oversight. At one point, Benjamin Franklin suggested that “henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business.” 1 M. Farrand, Records of the Federal Convention of 1787, p. 452 (1911). His proposal was rejected not because the Convention was opposed to prayer, but because it was thought that a midstream adoption of the policy would highlight prior omissions and because “[t]he Convention had no funds.” Ibid.; see also Stokes, at 455-456. The statute provided: “[T]here shall be allowed to each chaplain of Congress . . . five hundred dollars per annum during the session of Congress.” This salary compares favorably with the Congressmen’s own salaries of $6 for each day of attendance, 1 Stat. 70-71. It bears note that James Madison, one of the principal advocates of religious freedom in the Colonies and a drafter of the Establishment Clause, see, e. g., Cobb, supra n. 5, at 495-497; Stokes, at 537-552, was one of those appointed to undertake this task by the House of Representatives, H. R. Jour., at 11-12; Stokes, at 541-549, and voted for the bill authorizing payment of the chaplains, 1 Annals of Cong. 891 (1789). Interestingly, September 25, 1789, was also the day that the House resolved to request the President to set aside a Thanksgiving Day to acknowledge “the many signal favors of Almighty God,” H. R. Jour., at 123. See also S. Jour., at 88. The chaplaincy was challenged in the 1850’s by “sundry petitions praying Congress to abolish the office of chaplain,” S. Rep. No. 376, 32d Cong., 2d Sess., 1 (1853). After consideration by the Senate Committee on the Judiciary, the Senate decided that the practice did not violate the Establishment Clause, reasoning that a rule permitting Congress to elect chaplains is not a law establishing a national church and that the chaplaincy was no different from Sunday Closing Laws, which the Senate thought clearly constitutional. In addition, the Senate reasoned that since prayer was said by the very Congress that adopted the Bill of Rights, the Founding Fathers could not have intended the First Amendment to forbid legislative prayer or viewed prayer as a step toward an established church. Id., at 2-4. In any event, the 35th Congress abandoned the practice of electing chaplains in favor of inviting local clergy to officiate, see Cong. Globe, 35th Cong., 1st Sess., 14,27-28 (1857). Elected chaplains were reinstituted by the 36th Congress, Cong. Globe, 36th Cong., 1st Sess., 162 (1859); id., at 1016 (1860). See Brief for National Conference of State Legislatures as Amicus Curiae. Although most state legislatures begin their sessions with prayer, most do not have a formal rule requiring this procedure. But see, e. g., Alaska Legislature Uniform Rules 11 and 17 (1981) (providing for opening invocation); Ark. Rule of Senate 18 (1983); Colo. Legislator’s Handbook, H. R. Rule 44 (1982); Idaho Rules of H. R. and Joint Rules 2 and 4 (1982); Ind. H. R. Rule 10 (1983); Kan. Rule of Senate 4 (1983); Kan. Rule of H. R. 103 (1983); Ky. General Assembly H. Res. 2 (1982); La. Rules of Order, Senate Rule 10.1 (1983); La. Rules of Order, H. R. Rule 8.1 (1982); Me. Senate and House Register, Rule of H. R. 4 (1983); Md. Senate and House of Delegates Rules 1 (1982 and 1983); Mo. Rules of Legislature, Joint Rule 1-1 (1983); N. H. Manual for the General Court of N. H., Rule of H. R. 52(a) (1981); N. D. Senate and H. R. Rules 101 and 301 (1983); Ore. Rule of Senate 4.01 (1983); Ore. Rule of H. R. 4.01 (1983) (opening session only); 104 Pa. Code §11.11 (1983), 107 Pa. Code §21.17 (1983); S. D. Official Directory and Rules of Senate and H. R., Joint Rule of the Senate and House 4-1 (1983); Tenn. Permanent Rules of Order of the Senate 1 and 6 (1981-1982) (provides for admission into Senate chamber of the “Chaplain of the Day”); Tex. Rule of H. R. 2, § 6 (1983); Utah Rules of Senate and H. R. 4.04 (1983); Va. Manual of Senate and House of Delegates, Rule of Senate 21(a) (1982) (session opens with “period of devotions”); Wash. Permanent Rule of H. R. 15 (1983); Wyo. Rule of Senate 4-1 (1983); Wyo. Rule of H. R. 2-1 (1983). See also P. Mason, Manual of Legislative Procedure § 586(2) (1979). It also could be noted that objections to prayer were raised, apparently successfully, in Pennsylvania while ratification of the Constitution was debated, Penn. Herald, Nov. 24, 1787, and that in the 1820’s, Madison expressed doubts concerning the chaplaincy practice. See L. Pfeffer, Church, State, and Freedom 248-249 (rev. ed. 1967), citing Fleet, Madison’s “Detached Memoranda,” 3 Wm. & Mary Quarterly 534, 558-559 (1946). In comparison, the First Congress provided for the appointment of two chaplains of different denominations who would alternate between the two Chambers on a weekly basis, S. Jour., 1st Cong., 1st Sess., 12 (1820 ed.); H. R. Jour., 1st Cong., 1st Sess., 16 (1826 ed.). Palmer characterizes his prayers as “nonsectarian,” “Judeo Christian,” and with “elements of the American civil religion.” App. 75 and 87 (deposition of Robert E. Palmer). Although some of his earlier prayers were often explicitly Christian, Palmer removed all references to Christ after a 1980 complaint from a Jewish legislator. Id., at 49. It is also claimed that Nebraska’s practice of collecting the prayers into books violates the First Amendment. Because the State did not appeal the District Court order enjoining further publications, see n. 3, supra, this issue is not before us and we express no opinion on it. Nebraska’s practice is consistent with the manner in which the First Congress viewed its chaplains. Reports contemporaneous with the elections reported only the chaplains’ names, and not their religions or church affiliations, see, e. g., 2 Gazette of the U. S. 18 (Apr. 25, 1789); 5 id., at 18 (Apr. 27, 1789) (listing nominees for Chaplain of the House); 6 id., at 23 (May 1, 1789). See also S. Rep. 376, supra n. 10, at 3. We note that Dr. Edward L. R. Elson served as Chaplain of the Senate of the United States from January 1969 to February 1981, a period of 12 years; Dr. Frederick Brown Harris served from February 1949 to January 1969, a period of 20 years. Senate Library, Chaplains of the Federal Government (rev. ed. 1982). The states’ practices differ widely. Like Nebraska, several states choose a chaplain who serves for the entire legislative session. In other states, the prayer is offered by a different clergyman each day. Under either system, some states pay their chaplains and others do not. For States providing for compensation statutorily or by resolution, see, e. g., Cal. Gov’t Code Ann. §§ 9170, 9171, 9320 (West 1980), and S. Res. No. 6, 1983-1984 Sess.; Colo. H. R. J., 54th Gen. Assembly, 1st Sess., 17-19 (Jan. 5, 1983); Conn. Gen. Stat. Ann. §2-9 (1983-1984); Ga. H. R. Res. No. 3, § 1(e) (1983); Ga. S. Res. No. 3, § 1(c) (1983); Iowa Code §2.11 (1983); Mo. Rev. Stat. §21.150 (1978); Nev. Rev. Stat. §218.200 (1981); N. J. Stat. Ann. §52:11-2 (West 1970); N. M. Const., Art. IV, §9; Okla. Stat. Ann., Tit. 74, §§291.12 and 292.1 (West Supp. 1982-1983); Vt. Stat. Ann., Tit. 2, § 19 (Supp. 1982); Wis. Stat. Ann. § 13.125 (West Supp. 1982). Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
sc_caseorigin	212	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. UNITED STATES v. FLORIDA No. 52, Orig. Argued February 25, 1975 Decided March 17, 1975 Keith A. Jones argued the cause for the United States. With him on the briefs were Solicitor General Bork, Assistant Attorney General Johnson, Bruce C. Rashkow, and Michael W. Reed. Robert L. Shevin, Attorney General of Florida, argued the cause for defendant. With him on the briefs were W. Robert Olive, Jr., Special Assistant Attorney General, and Daniel S. Dearing. Brice M. Clagett, Michael Boudin, W. Laird Stabler, Jr., Attorney General, and Jerome O. Herlihy, Chief Deputy Attorney General of Delaware, Arthur K. Bolton, Attorney General, and Alfred L. Evans, Jr., Assistant Attorney General of Georgia, Jon A. Lund, Attorney General, and Lee M. Schepps, Assistant Attorney General of Maine, Francis B. Burch, Attorney General, and Henry B. Lord, Deputy Attorney General of Maryland, Robert H. Quinn, former Attorney General, and Henry Herrmann, Special Assistant Attorney General of Massachusetts, Warren B. Budman, Attorney General, and David H. Souter, Deputy Attorney General of New Hampshire, William F. Hyland, Attorney General, and Elias Abelson, Assistant Attorney General of New Jersey, Louis J. Lefkowitz, Attorney General, and Joseph T. Hopkins, Assistant Attorney General of New York, Robert Morgan, Attorney General, and Jean A. Benoy, Deputy Attorney General of North Carolina, Richard J. Israel, Attorney General, and W. Slater Allen, Jr., Assistant Attorney General of Rhode Island, Daniel R. McLeod, Attorney General, and Edward B. Latimer, Assistant Attorney General of South Carolina, Andrew P. Miller, Attorney General, and Gerald L. Baliles, Deputy Attorney General of Virginia, filed a brief for the State of Delaware et al. as amici curiae. Per Curiam. Before the Court for consideration are the exceptions of the State of Florida and of the United States to the Report of the Special Master filed February 19, 1974. Oral argument has been had. The case consolidates two proceedings. In the first, the United States seeks a decree defining the seaward boundary of the submerged lands of the Continental Shelf in the Atlantic Ocean in which Florida has rights to the natural resources. 395 U. S. 955 (1969). In the second, the State of Florida and the United States seek a decree defining more specifically than does the decree entered in United States v. Louisiana, 364 U. S. 502 (1960), the seaward boundary of the submerged lands of the Continental Shelf in the Gulf of Mexico in which Florida has rights to the natural resources. 403 U. S. 949 (1971). In its exceptions to the Report, the State of Florida maintains that in his recommendations the Special Master should have recognized that the said boundaries extend to the boundaries defined in the State's 1868 Constitution, rather than to the limits specified in the Submerged Lands Act of 1953, § 2 (b), 67 Stat. 29, 43 U. S. C. § 1301 (b); that the Special Master should have recognized that the Florida Keys and the Straits of Florida southwest of longitude 25°40' N. are part of the Gulf of Mexico, rather than of the Atlantic Ocean; that the Special Master erred in construing the 1868 Constitution of the State as to its Atlantic Ocean boundary and as to its boundary between the Dry Tortugas Islands and Cape Romano; and that the Special Master erred in failing to recognize “Florida Bay” as a historic bay and thus as inland waters of the State. Having considered each of these exceptions, we conclude that they are correctly answered in the Report of the Special Master. The exceptions of the State of Florida are therefore overruled. In its exceptions to the Report, the United States maintains that the Special Master erred in recommending the recognition of a portion of Florida Bay as a “juridical” bay, and in recommending the drawing of “closing lines” around three groups of islands that make up the Florida Keys. It appears that these recommendations of the Special Master were made without benefit of the contentions now advanced by the United States and the opposing contentions now presented by the State of Florida. The exceptions of the United States are therefore referred to the Special Master for his prompt consideration. He is authorized to conduct any supplemental proceedings he may find useful with respect to the exceptions of the United States and is requested to file a supplemental report restricted to the issues raised in those exceptions. It is so ordered. Mr. Justice Douglas took no part in the consideration or decision of this case. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. Barbara Jean DAWKINS and Jacqueline Denise Dawkins, a minor by her mother and next friend, Barbara Jean Dawkins, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Clifton M. CRAIG, Individually and as North Carolina Commissioner of Social Services et al., Defendants-Appellants. No. 72-2460. United States Court of Appeals, Fourth Circuit. Argued April 4, 1973. Decided Sept. 12, 1973. Robert S. Weathers, Asst. Atty. Gen., North Carolina (Robert Morgan, Atty. Gen., North Carolina, on brief), for defendants-appellants. Donald S. Gillespie, Jr., Charlotte, N. C., for plaintiffs-appellees. Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WIDENER, Circuit Judge. WIDENER, Circuit Judge: The parties to this appeal agree that the sole issue is whether the District Court properly ordered the State of North Carolina to make retroactive payments in the program called Aid to Families with Dependent Children. It is contended by appellant that such order is in contravention of the Eleventh Amendment to the United States Constitution. Plaintiff Dawkins is a resident of Mecklenburg County, North Carolina and is the mother of Jacqueline Daw-kins, who was 14 years of age at the time the complaint was filed and who resides with her mother. The defendants are the state personnel and the state administrative agencies responsible for administration of the North Carolina public assistance programs which relate to this appeal. During July, 1970, plaintiff applied to the Mecklenburg County Department of Social Services for Aid to Families with Dependent Children (AFDC) benefits on behalf of herself and her daughter Jacqueline Dawkins. On August 12, 1970, she received a notice from the county director which said that her “application for public assistance was not approved for payment because of refusal to file a warrent [sic] against the deserting parent.” She noted an administrative appeal from the action taken by the county director, and her appeal was heard on August 25, 1970 before a hearing examiner representing appellant State Commissioner. On September 25, 1970, Dawkins received a “Notice of Fi-' nal Decision” from the State Commissioner dated September 21, 1970, which stated that the county director’s decision was correct because it was in accordance with § 2210 of the North Carolina Financial Services Manual which provides that “if it is established that a parent (or parents) has deserted or abandoned his children, the applicant or recipient payee should agree to institute non-support action against the deserting parent (or parents) where the applicant or recipient can identify the parent (or parents).” On October 13, 1970, Dawkins filed a civil action in the District Court. The complaint alleges that appellants have construed the above regulation so that the filing of a non-support action against a deserting parent is a prerequisite to eligibility for AFDC benefits. The complaint alleges that the regulation is unconstitutional and prays not only for declaratory and injunctive relief but also for payment of sums allegedly wrongfully withheld. On May 8, 1972, the parties filed a stipulation which indicated that the regulation in question had been revised and amended, to the satisfaction of the plaintiffs, so that there no longer existed the necessity for any prospective relief. The stipulation further recited that the only issues left for determination were the propriety and extent of class action relief and the propriety and extent of retroactive payments to plaintiffs. The District Court ordered that the case was properly maintainable as a class action and defined the class. The defendants have not challenged such action. We are thus faced with the issue of whether the District Court’s order that payments be restored retroactively contravenes the Eleventh Amendment. The Eleventh Amendment to the United States Constitution provides as follows: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The Eleventh Amendment was declared to have been ratified on January 8, 1798. The amendment was proposed to the several states on March 4, 1794 as a consequence of the Supreme Court’s decision in Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793). In Chisholm, the Supreme Court held that a State could be sued by a citizen of another State in assumpsit. The amendment on its face does not speak to the situation where, as here, a State is sued by one of its own citizens. However, the Supreme Court has ruled that an unconsenting State is immune from suits brought in federal courts by its own citizens, as well as by citizens of another State. Employees of the Department of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279 at 280, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1899) ; Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280 (1920); see Great Northern Ins. Co. v. Read, 322 U.S. 47, 51, 64 S.Ct. 873, 88 L.Ed. 1121 (1944). In Employees, etc., supra, 411 U.S. at 286, 93 S.Ct. 1614, the court made it clear that, where the suit is by a citizen against his own State, the constitutional constraint imposed by the Eleventh Amendment upon the judicial power of the United States is invoked. See also Hans, supra, 134 U.S., at 15, 10 S.Ct. 504, and Ex parte Young, 209 U.S. 123, 150, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The amendment covers not only suits brought against a State by name but those also against its officers, agents and representatives, where the State, though not named as such, is nevertheless the only real party against which, in fact, relief is asked, and against which the judgment operates. In re Ayers, 123 U.S. 443, 505-506, 8 S.Ct. 164, 31 L.Ed. 216 (1887); Ex parte Young, 209 U.S. 123, 150, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Cf. Employees, etc., supra. Of course, it has long been the law that the Eleventh Amendment is no bar to a suit brought to direct a State officer to bring his conduct into conformity with federal law. In re Ayers, supra; Ex parte Young, supra; Employees, etc., supra, 411 U.S. at 293, n. 9, 93 S.Ct. 1614. Thus, while the Eleventh Amendment may have been no bar to the jurisdiction of the court below insofar as the suit sought to require North Carolina officials to act in accordance with the constitution, the order to make retroactive payments is a different matter. Such relief looks directly to the payment of public funds out of the State treasury. See N.C. Const. Art. V. § 7. Such an order, in our opinion, is contrary to the Eleventh Amendment. In re Ayers, supra, 123 U.S., at 505, 506, 88 S.Ct. 164; Rothstein v. Wyman, 467 F. 2d 226 (2nd Cir. 1972); Francis v. Davidson, 340 F.Supp. 351, 370 (D.Md. 1972, three-judge court), aff’d, 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972); Like v. Carter, 353 F.Supp. 405 (E.D.Mo.1973); contra Jordan v. Weaver, 472 F.2d 985 (7th Cir. 1973). See also Williams v. Dandridge, 297 F.Supp. 450 (D.Md.1968), rev’d. on other grounds, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491. Appellees urge that the Supreme Court has decided this issue by affirming several decisions which ordered retroactive payments, although none of the cases in that court mentions one word about the Eleventh Amendment. Sterrett v. Mothers and Children’s Rights Organization, 409 U.S. 809, 93 S.Ct. 68, 34 L.Ed.2d 70 (1972); State Dept. of Health and Rehabilitative Services v. Zarate, 407 U.S. 918, 92 S.Ct. 2462, 32 L.Ed.2d 803 (1972); Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38 (1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). We do not agree with the reasoning of the Seventh Circuit in Jordan, supra, that such cases require a holding that the Eleventh Amendment for some reason does not apply to this situation. We believe that the most that can be said for these cases is that the issue was not discussed. Accord Rothstein, supra. We also believe that plaintiffs’ argument that such cases are pertinent to the Eleventh Amendment issues is without merit because, most recently, the Supreme Court, in Employees, etc., supra, which squarely dealt with the Eleventh Amendment, made no mention of those district court cases relied on in Jordan. We note also that the Supreme Court affirmed Francis v. Davidson, supra. Francis expressly noted that the Eleventh Amendment bars the type of relief sought herein. 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972). Plaintiffs also urge that any protection which the Eleventh Amendment might provide has been waived by the State. Of course, the immunity of the Eleventh Amendment may be waived. Parden v. Terminal Ry. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); see Employees, etc., supra. North Carolina has not, by any formal act, waived its immunity. Nor do any of the AFDC provisions condition federal funding upon a State’s waiver of its immunity. It is argued that the mere participation by a State in the AFDC program constitutes at least an implied waiver of the protection of the Eleventh Amendment. We cannot agree. As pointed out by Mr. Justice Marshall, concurring in Employees, etc., supra, waiver of a constitutional protection is not to be inferred lightly. And, we do not think that mere participation in the AFDC program constituted a waiver. Rothstein, supra; Like, supra. The petitioners, in Employees, etc., supra, were employees of State health facilities. They brought suit for overtime pay due them under § 16(b) of the Fair Labor Standards Act, and the district court dismissed the action on the basis of the immunity provided by the Eleventh Amendment. The Supreme Court affirmed the district court’s dismissal of the action. The court turned first to Parden v. Terminal Ry. Co., supra. Parden involved a State owned railroad operating in interstate commerce, and the claims were those of employees under Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. In Parden, the court concluded that the broad definition of carrier under FELA included State owned railroads and that a State, by operating in interstate commerce, waived its immunity under the Eleventh Amendment. The court, in Employees, etc., concluded that a State was a covered employer under the Fair Labor Standards Act but that the Par-den ease did not control. Parden was distinguished on the grounds that it involved a State enterprise operated for profit in the congressionally controlled area of interstate commerce, where private persons and corporations normally operate. Employees, etc., on the other hand, was viewed as involving a State enterprise not operated for profit and thus not proprietary. The close connection with interstate commerce involved in Parden was found to be lacking in Employees. We believe that the distinction drawn in Employees should equally apply here. North Carolina’s purpose in operating an AFDC program is purely humanitarian, not proprietary as was the railroad in Parden. We note also that while there has been a tremendous increase in involvement by the federal government in the area of public health and welfare, that area is still the primary domain of the State governments. In any event, the connection with interstate commerce, which was a substantial factor in the outcome in Parden, is lacking here. Of like effect is this court’s decision in Chesapeake Bay Bridge and Tunnel District v. Lauritzen, 404 F.2d 1001 (4th Cir. 1968), in which the court reasoned that Virginia waived State sovereignty by seeking and obtaining admission into an exclusive federal realm, interstate and foreign commerce. Noting that the State had petitioned for permission to occupy navigable waters with bridges and tunnels, the court stated: “Necessarily, the State recognized that she built in the Bay only by sufferance of the Federal government. This acknowledgment is conclusively evidenced by her petition for permission pursuant to the act of Congress, 33 U.S.C. § 401 et seq., to occupy navigable waters with bridges and tunnels. The supplication of the State, and her reception into the Federal domain, meant surrender, pro tanto and pro tempore, of State sovereignty and submission to the paramount overlord-ship of the' United States during the tenancy.” Chesapeake Bay Bridge and Tunnel District, at 1003. Parden, supra, and Chesapeake Bay Bridge and Tunnel District involved entry into the federal realms of interstate and foreign commerce. In the instant case, as in Employees, etc., supra, we find no such involvement, proprietary or otherwise, into an exclusively federal realm. Accordingly, we are of opinion that there has been no waiver by North Carolina of its immunity from suit in this case. On the whole case, we are of opinion the Eleventh Amendment, or the want of judicial authority of the United States under Article III of the Constitution, however it may be phrased, (Cf. Ex parte Young, 209 U.S. at p. 150, 28 S.Ct. 441, with Duhne, supra, and the concurring opinion in Employees, supra), prohibits this suit for retroactive AFDC payments. The judgment of the district court is accordingly Reversed. . Three-fourtlis of the States had ratified the amendment by 1795. . As noted by the Supreme Court in Hans, the furor created by the Chisholm decision did not turn upon any distinctions of whether a State could be sued by its own citizens or citizens of another State but was caused by judicial recognition that the State could be sued at all. The Federalist, No. 81, (Hamilton) and the Chronicles of the Virginia Convention, 3 Elliot’s Debates, reveal that there was indeed apprehension that the language in Article III, “the judicial power shall extend to all controversies between a State and citizens of another State, . . .might be construed to allow a State to be sued in the federal courts by an individual. Hamilton, Mason and Patrick Henry all voiced this concern. These objections were answered by Madison and Marshall, who stated that the language was intended to allow a State to sue an individual in federal courts. Marshall’s comment is particularly apt: “I hope that no gentleman will think that a State will be called at the bar of the Federal court . . .” Against this background, it is not difficult to understand the unrest created by the Chisholm decision which did precisely what Marshall and Madison assured would not happen. Chisholm itself involved a suit against a State by a citizen of another State. Since the Eleventh Amendment was directed at correcting the Chisholm decision, it is not surprising to find the language there expressed in terms of the facts in the Chisholm case, that is, suits involving citizens of another State. It is interesting to note that the Eleventh Amendment did not simply bar such suits; its language was pointedly directed at the courts. The language of the amendment is that the judicial power of the United States “shall not be construed to extend. . . . ” [Emphasis added]. Thus, the Eleventh Amendment, a result of the Chisholm case, was specifically enacted to bar any construction of Article III which would obtain the result readied in Chisholm. There was no need to word the Eleventh Amendment to bar suits other than those brought by a citizen of another State because, under no circumstances, could Article III have been construed to extend the judicial power to a suit brought by a citizen of the State sued. As the Supreme Court noted in Duncan, Article III was not intended to allow suits which were unknown and forbidden at common law. Nevertheless, it lias been argued on occasion that because the Eleventh Amendment only specifically barred suits brought by citizens of another State, suits brought by citizens of the State sued were not barred. This argument ignores the historical aspects of the whole matter and was rejected by the Supreme Court. As stated by Chief Justice White in Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280 (1920) : “. . . it has been long since settled that the whole sum of the judicial power granted by the constitution of the United States does not embrace the authority to entertain a suit brought by a citizen against his own state without its consent.” Duhne at 313, 40 S.Ct. at 154. It is clear from Duhne that whether the question be viewed as the' extent of the grant of power under Article III, or the extent of the bar imposed by the Eleventh Amendment, the answer is the same — suits brought by a citizen of the State sued are barred in the same manner as are suits against a State by a citizen of another State. . Of. Petty, Admx. v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959). Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_appbus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. William Tyrone HARRIS, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. No. 77-2238 Summary Calendar. United States Court of Appeals, Fifth Circuit. Nov. 9, 1978. William Tyrone Harris, pro se, Melvyn C. Bruder, Dallas, Tex. (Court-appointed), for petitioner-appellant. John L. Hill, Atty. Gen., Joe Dibrell, Asst. Atty. Gen., Chief Enforcement Div., P. E. George, David M. Kendall, Asst. Attys. Gen., Austin, Tex., for respondent-appellee. Before RONEY, GEE and FAY, Circuit Judges. Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: This appeal is from a district court judgment denying relief to petitioner in a habe-as corpus proceeding. Petitioner’s application for habeas corpus relief comes more than twenty years after his 1952 murder conviction in a state court in Texas. The conviction was affirmed in Harris v. State, 158 Tex.Cr.R. 37, 253 S.W.2d 44 (1952). Since petitioner was denied representation by counsel in his appeal from the conviction, the Texas Court of Criminal Appeals permitted the petitioner an out-of-time appeal in 1973. This Court also ordered that petitioner be granted an out-of-time appeal or a new trial. Harris v. Estelle, 487 F.2d 56 (5th Cir. 1973). Petitioner claims that the failure of the State to provide a verbatim transcript precluded him from taking an effective out-of-time appeal and from having effective representation of counsel on appeal. Since petitioner was provided with a suitable alternative to a verbatim transcript, we affirm the judgment of the district court. At the outset it must be noted that petitioner exhausted state remedies as to his claim that the absence of a verbatim transcript prevented him from effectively appealing his conviction. Petitioner bases his additional claim of ineffective representation by counsel, however, on the failure of the State to provide a verbatim transcript. Because petitioner’s claim of ineffective representation of counsel is founded on his contention that the record was insufficient, a determination that the reconstructed record was a suitable alternative makes it unnecessary for this Court to pass on whether petitioner’s claim of ineffective representation was adequately presented to the State courts. It is well established that the lack of a verbatim transcript is not a constitutional defect when a suitable alternative is provided. Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 414-415, 30 L.Ed.2d 372 (1971); Morgan v. Massey, 526 F.2d 347, 348 (5th Cir. 1976); Mack v. Walker, 372 F.2d 170, 172-174 (5th Cir. 1966). Quoting Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), the Supreme Court reiterated in Mayer, supra, that Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge’s minutes taken during trial or on the court reporter’s untranscribed notes, or a bystander’s bill of exceptions might all be adequate substitutes, equally as good as a transcript. Alternative methods of reporting trial proceedings are appropriate particularly where state appellate rules provide a procedure for reconstruction of the trial record, and indigents and nonindigents are treated the same. See Morgan v. Massey, supra, and Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Petitioner obtained the same type of record provided to nonindigent defendants. Pursuant to Article 759 of the 1925 Texas Code of Criminal Procedure (in effect in 1952) the State did not provide a verbatim transcript of any criminal trial proceedings. Only a statement of facts in narrative form was available to defendants in criminal cases. Petitioner was given an opportunity to supplement the record of his criminal case at an evidentiary hearing in state court. Several witnesses from the original trial testified to material events which occurred at trial. Petitioner was allowed to bring out facts about his trial that were not reflected in the original record. A verbatim transcript of that proceeding was prepared and made a part of the record. Although the state trial court found that petitioner could not have had a meaningful out-of-time appeal because the original trial transcript was incomplete, the Criminal Court of Appeals reversed. Noting that pertinent witnesses who appeared at the original trial gave testimony at the eviden-tiary hearing on points concerning petitioner’s claims of reversible error, the Criminal Court held that the evidence adduced was sufficient to rule on the claimed errors, and affirmed the conviction. Petitioner asserts that Texas laws permit a narrative statement of facts to substitute for a verbatim transcription of the record only when bills of exception are filed by trial counsel. The record shows that trial counsel did file two bills of exception. Further, under Texas criminal procedure laws, petitioner was entitled to file additional bills of exception in the out-of-time appeal. Tex.Code Crim.Proc. arts. 36.20 and 40.-09(6), (6a) and (16). Petitioner’s assertion, therefore, must fail. Petitioner was provided a statement of facts in narrative form in accordance with state law. The record provided petitioner was the same type of record given to all defendants in criminal cases, including nonindigent defendants. At a subsequent evidentiary hearing petitioner was given an opportunity to adduce evidence to supplement the record. Witnesses from the trial testified at the hearing to facts surrounding petitioner’s claims of error. For these reasons we conclude that a suitable alternative to a verbatim record was provided, and petitioner was not denied an effective appeal. AFFIRMED. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_usc1	45	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. TILDEN et al., California State Board of Harbor Com’rs, v. UNITED STATES. Circuit Court of Appeals, Ninth Circuit. October 17, 1927. No. 5253. Courts <g=»303(2) — Action for penalty against California harbor commissioners for violating federal statute held not “suit against state” (Safety Appliance Acts [45 USCA §§ 2,8-10]). Action by United States against California state board of harbor commissioners to recover a penalty for violation of Safety Appliance Act March 2, 1893, § 2, amended by Act March 2, 1903 (45 USCA §§ 2, 8-10 [Comp. St. §§ 8606, 8613-8615]), in the operation of State Belt Railroad was not a “suit against the state,” since State Belt Railroad, though belonging to state, is a common carrier engaged in interstate commerce, and required to comply with federal Safety Appliance Act. [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Suit against the State.] In Error to the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Kerrigan, Judge. Action by the United States against C. L. Tilden and others, comprising the California State Board of Harbor Commissioners, operating the State Bolt Railroad. Judgment for plaintiff, and defendants bring error. Affirmed. Leon E. Morris, of San Francisco, Cal. (Edward M. Jaffa, of San Francisco, Cal., of counsel), for plaintiffs in error. George J. Hatfield, U. S. Atty., and Thomas J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., and M. C. List, Sp. Atty., of Washington, D. C. Before GILBERT, HUNT, and RUD-KIN, Circuit Judges. GILBERT, Circuit Judge. In the court below the plaintiffs in error, who constitute the board of state harbor commissioners of California, were adjudged to pay a penalty of $100 for violation of section 2 of tb© Safety Appliance Act, approved March 2, 1893, as amended by the Act of March 2,1903 (32 Stats. 943 [Comp. St. §§ 8606-8613-8615; 45 USCA §§2,8-10]). The writ of error presents the questions which were before this court in MeCallum v. United States (C. C. A.) 298 F. 373, 38 A. L. R. 1143, in which we held that such an action was not a. suit against the state of' California, that the State Belt Railroad, traversing the harbor front of San Francisco, and belonging to the state, was a common carrier engaged in interstate commerce, and that it was required to comply with the federal Safety Appliance Act. No authorities are now presented and no reasoning is advanced which require a reconsideration of the conclusion which was there reached. The judgment 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:
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. DESERT PALACE, INC., dba CAESARS PALACE HOTEL & CASINO v. COSTA No. 02-679. Argued April 21, 2003 Decided June 9, 2003 Thomas, J., delivered the opinion for a unanimous Court. O’Connor, J., filed a concurring opinion, post, p. 102. Mark J. Ricciardi argued the cause for petitioner. With him on the briefs were Roger K. Quillen, Paul A. Ades, and Corbett N. Gordon. Irving L. Gornstein argued the cause for the United States as amicus curiae. On the brief were Solicitor General Olson, Assistant Attorneys General McCallum and Boyd, Deputy Solicitor General Clement, Dennis J. Dimsey, and Teresa Kwong. Robert N. Peccole argued the cause for respondent. With him on the brief was Eric Schnapper. Ann Elizabeth Reesman, Katherine Y. K. Cheung, Stephen A. Bokat, and Ellen D. Bryant filed a brief for the Equal Employment Advisory Council et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, and Laurence Gold; for the Association of Trial Lawyers of America by Jeffrey L. Needle; for the Lawyers’ Committee for Civil Rights Under Law et al. by Michael C. Subit, Barbara R. Arrmine, Thomas J. Henderson, Michael L. Foreman, Kristin M. Dadey, Thomas W. Osborne, Laurie A. McCann, Daniel B. Kohrman, Melvin Radowitz, Leñara M. Lapidus, Vincent A Eng, Judith L. Lichtman, Jocelyn C. Frye, and Dennis C. Hayes; and for Ann B. Hopkins by Douglas B. Huron. Ronald B. Schwartz and Jenifer Bosco filed a brief for the National Employment Lawyers Association as amicus curiae. Justice Thomas delivered the opinion of the Court. The question before us in this case is whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (1991 Act). We hold that direct evidence is not required. I A Since 1964, Title VII has made it an “unlawful employment practice for an employer... to discriminate against any individual. . . , because of such individual’s race, color, religion, sex, or national origin.” 78 Stat. 255, 42 U. S. C. §2000e-2(a)(1) (emphasis added). In Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), the Court considered whether an employment decision is made “because of” sex in a “mixed-motive” case, i. e., where both legitimate and illegitimate reasons motivated the decision. The Court concluded that, under §2000e-2(a)(l), an employer could “avoid a finding of liability ... by proving that it would have made the same decision even if it had not allowed gender to play such a role.” Id., at 244; see id., at 261, n. (White, J., concurring in judgment); id., at 261 (O’Connor, J., concurring in judgment). The Court was divided, however, over the predicate question of when the burden of proof may be shifted to an employer to prove the affirmative defense. Justice Brennan, writing for a plurality of four Justices, would have held that “when a plaintiff . . . proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.” Id., at 258 (emphasis added). The plurality did not, however, “suggest a limitation on the possible ways of proving that [gender] stereotyping played a motivating role in an employment decision.” Id., at 251-252. Justice White and Justice O’Connor both concurred in the judgment. Justice White would have held that the case was governed by Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), and would have shifted the burden to the employer only when a plaintiff “show[ed] that the unlawful motive was a substantial factor in the adverse employment action.” Price Waterhouse, supra, at 259. Justice O’Con-nor, like Justice White, would have required the plaintiff to show that an illegitimate consideration was a “substantial factor” in the employment decision. 490 U. S., at 276. But, under Justice O’Connor’s view, “the burden on the issue of causation” would shift to the employer only where “a disparate treatment plaintiff [could] show by direct evidence that an illegitimate criterion was a substantial factor in the decision.” Ibid. (emphasis added). Two years after Price Waterhouse, Congress passed the 1991 Act “in large part [as] a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964.” Landgraf v. USI Film Products, 511 U. S. 244, 250 (1994). In particular, § 107 of the 1991 Act, which is at issue in this case, “responded]” to Price Waterhouse by “setting forth standards applicable in ‘mixed motive’ cases” in two new statutory provisions. 511 U. S., at 251. The first establishes an alternative for proving that an “unlawful employment practice” has occurred: “Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U. S. C. §2000e-2(m). The second provides that, with respect to “a claim in which an individual proves a violation under section 2000e-2(m),” the employer has a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to a plaintiff. The available remedies include only declaratory relief, certain types of injunctive relief, and attorney’s fees and costs. § 2000e-5(g)(2)(B). In order to avail itself of the affirmative defense, the employer must “demonstrate] that [it] would have taken the same action in the absence of the impermissible motivating factor.” Ibid. Since the passage of the 1991 Act, the Courts of Appeals have divided over whether a plaintiff must prove by direct evidence that an impermissible consideration was a “motivating factor” in an adverse employment action. See 42 U. S. C. § 2000e-2(m). Relying primarily on Justice O’Con-nor’s concurrence in Price Waterhouse, a number of courts have held that direct evidence is required to establish liability under § 20Q0e-2(m). See, e. g., Mohr v. Dustrol, Inc., 306 F. 3d 636, 640-641 (CA8 2002); Fernandes v. Costa Bros. Masonry, Inc., 199 F. 3d 572, 580 (CA1 1999); Trotter v. Board of Trustees of Univ. of Ala., 91 F. 3d 1449, 1453-1454 (CA11 1996); Fuller v. Phipps, 67 F. 3d 1137, 1142 (CA4 1995). In the decision below, however, the Ninth Circuit concluded otherwise. See infra, at 97-98. B Petitioner Desert Palace, Inc., dba Caesar’s Palace Hotel & Casino of Las Vegas, Nevada, employed respondent Catha-rina Costa as a warehouse worker and heavy equipment operator. Respondent was the only woman in this job and in her local Teamsters bargaining unit. Respondent experienced a number of problems with management and her co-workers that led to an escalating series of disciplinary sanctions, including informal rebukes, a denial of privileges, and suspension. Petitioner finally terminated respondent after she was involved in a physical altercation in a warehouse elevator with fellow Teamsters member Herbert Gerber. Petitioner disciplined both employees because the facts surrounding the incident were in dispute, but Gerber, who had a clean disciplinary record, received only a 5-day suspension. Respondent subsequently' filed this lawsuit against petitioner in the United States- District Court for the District of Nevada, asserting claims of sex discrimination and sexual harassment under Title VII. The District Court dismissed the sexual harassment claim, but allowed the claim for sex discrimination to go to the jury. At trial, respondent presented evidence that (1) she was singled out for “intense ‘stalking’ ” by one- of her supervisors, (2) she received harsher discipline than men for the same conduct, (3) she was treated less favorably than men in the assignment of overtime, and (4) supervisors repeatedly “stack[ed]” her disciplinary record and “frequently used or tolerated” sex-based slurs against her. 299 F. 3d 838, 845-846 (CA9 2002). Based on this evidence, the District Court denied petitioner’s motion for judgment as a matter of law, and submitted the case to the jury with instructions, two of which are relevant here. First, without objection from petitioner, the District Court instructed the jury that “ ‘[t]he plaintiff has the burden of proving ... by a preponderance of the evidence’ ” that she “‘suffered adverse work conditions’” and that her sex “ ‘was a motivating factor in any such work conditions imposed upon her.’ ” Id., at 858. Second, the District Court gave the jury the following mixed-motive instruction: “‘You have heard evidence that the defendant’s treatment of the plaintiff was motivated by the plaintiff’s sex and also by other lawful reasons. If you find that the plaintiff’s sex was a motivating factor in the defendant’s treatment of the plaintiff, the plaintiff is entitled to your verdict, even if you find that the defendant’s conduct was also motivated by a lawful reason. “ ‘However, if you find that the defendant’s treatment of the plaintiff was motivated by both gender and lawful reasons, you must decide whether the plaintiff is entitled to damages. The plaintiff is entitled to damages unless the defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff’s gender had played no role in the employment decision.’ ” Ibid. Petitioner unsuccessfully objected to this instruction, claiming that respondent had failed to adduce “direct evidence” that sex was a motivating factor in her dismissal or in any of the other adverse employment actions taken against her. The jury rendered a verdict for respondent, awarding back-pay, compensatory damages, and punitive damages. The District Court denied petitioner’s renewed motion for judgment as a matter of law. The Court of Appeals initially vacated and remanded, holding that the District Court had erred in giving the mixed-motive instruction because respondent had failed to present “substantial evidence of conduct or statements by the employer directly reflecting discriminatory animus.” 268 F. 3d 882, 884 (CA9 2001). In addition, the panel concluded that petitioner was entitled to judgment as a matter of law on the termination claim because the evidence was insufficient to prove that respondent was “terminated because she was a woman.” Id., at 890. The Court of Appeals reinstated the District Court’s judgment after rehearing the case en banc. 299 F. 3d 838 (CA9 2002). The en banc court saw no need to decide whether Justice O’Connor’s concurrence in Price Waterhouse controlled because it concluded that Justice O’Connor’s references to “direct evidence” had been “wholly abrogated” by the 1991 Act. 299 F. 3d, at 850. And, turning “to the language” of §2000e-2(m), the court observed that the statute “imposes no special [evidentiary] requirement and does not reference ‘direct evidence.’” Id., at 853. Accordingly, the court concluded that a “plaintiff... may establish a violation through a preponderance of evidence (whether direct or circumstantial) that a protected characteristic played ‘a motivating factor.’ ” Id., at 853-854 (footnote omitted). Based on that standard, the Court of Appeals held that respondent’s evidence was sufficient to warrant a mixed-motive instruction and that a reasonable jury could have found that respondent’s sex was a “motivating factor in her treatment.” Id., at 859. Four judges of the en banc panel dissented, relying in large part on “the reasoning of the prior opinion of the three-judge panel.” Id., at 866. We granted certiorari. 537 U. S. 1099 (2003). II This case provides us with the first opportunity to consider the effects of the 1991 Act on jury instructions in mixed-motive cases. Specifically, we must decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under 42 U. S. C. § 2000e-2(m). Petitioner’s argument on this point proceeds in three steps: (1) Justice O’Connor’s opinion is the holding of Price Waterhouse; (2) Justice O’Connor’s Price Water-house opinion requires direct evidence of discrimination before a mixed-motive instruction can be given; and (3) the 1991 Act does nothing to abrogate that holding. Like the Court of Appeals, we see no need to address which of the opinions in Price Waterhouse is controlling: the third step of petitioner’s argument is flawed, primarily because it is inconsistent with the text of § 2000e-2(m). Our precedents make clear that the starting point for our analysis is the statutory text. See Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992). And where, as here, the words of the statute are unambiguous, the “ ‘judicial inquiry is complete.’” Id., at 254 (quoting Rubin v. United States, 449 U. S. 424, 430 (1981)). Section 2000e-2(m) unambiguously states that a plaintiff need only “demonstrate]” that an employer used a forbidden consideration with respect to “any employment practice.” On its face, the statute does not mention, much less require, that a plaintiff make a heightened showing through direct evidence. Indeed, petitioner concedes as much. Tr. of Oral Arg. 9. Moreover, Congress explicitly defined the term “demonstrates” in the 1991 Act, leaving little doubt that no special evidentiary showing is required. Title VII defines the term “ ‘demonstrates' ” as to “mee[t] the burdens of production and persuasion.” §2000e(m). If Congress intended the term “ ‘demonstrates' " to require that the “burdens of production and persuasion” be met by direct evidence or some other heightened showing, it could have made that intent clear by including language to that effect in §2000e(m). Its failure to do so is significant, for Congress has been unequivocal when imposing heightened proof requirements in other circumstances, including in other provisions of Title 42. See, e. g., 8 U. S. C. § 1158(a)(2)(B) (stating that an asylum application may not be filed unless an alien “demonstrates by clear and convincing evidence” that the application was filed within one year of the alien’s arrival in the United States); 42 U. S. C. § 5851(b)(8)(D) (providing that “[r]elief may not be ordered” against an employer in retaliation cases involving whistleblowers under the Atomic Energy Act where the employer is able to “demonstrate] by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior” (emphasis added)); cf. Price Waterhouse, 490 U. S., at 253 (plurality opinion) (“Only rarely have we required clear and convincing proof where the action defended against seeks only conventional relief”). In addition, Title VII’s silence with respect to the type of evidence required in mixed-motive cases also suggests that we should not depart from the “[c]onventional rul[e] of civil litigation [that] generally applies] in Title VII cases.” Ibid. That rule requires a plaintiff to prove his case “by a preponderance of the evidence,” ibid., using “direct or circumstantial evidence,” Postal Service Bd. of Governors v. Athens, 460 U. S. 711, 714, n. 3 (1983). We have often acknowledged the utility of circumstantial evidence in discrimination cases. For instance, in Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133 (2000), we recognized that evidence that a defendant’s explanation for an employment practice is “unworthy of credence” is “one form of circumstantial evidence that is probative of intentional discrimination.” Id., at 147 (emphasis added). The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: “Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 508, n. 17 (1957). The adequacy of circumstantial evidence also extends beyond civil cases; we have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required. See Holland v. United States, 348 U. S. 121, 140 (1954) (observing that, in criminal cases, circumstantial evidence is “intrinsically no different from testimonial evidence”). And juries are routinely instructed that “[t]he law makes no distinction between the weight or value to be given to either direct or circumstantial evidence.” 1A K. O’Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal § 12.04 (5th ed. 2000); see also 4 L. Sand, J. Siffert, W. Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury Instructions ¶ 74.01 (2002) (model instruction 74-2). It is not surprising, therefore, that neither petitioner nor its amici curiae can point to any other circumstance in which we have restricted a litigant to the presentation of direct evidence absent some affirmative directive in a statute. Tr. of Oral Arg. 13. Finally, the use of the term “demonstrates” in other provisions of Title VII tends to show further that §2000e-2(m) does not incorporate a direct evidence requirement. See, e. g., 42 U. S. C. §§ 2000e-2(k)(l)(A)(i), 2000e-5(g)(2)(B). For instance, § 2000e-5(g)(2)(B) requires an employer to “demon-stratfe] that [it] would have taken the same action in the absence of the impermissible motivating factor” in order to take advantage of the partial affirmative defense. Due to the similarity in structure between that provision and §2000e-2(m), it would be logical to assume that the term “demonstrates” would carry the same meaning with respect to both provisions. But when pressed at oral argument about whether direct evidence is required before the partial affirmative defense can be invoked, petitioner did not “agree that ... the defendant or the employer has any heightened standard” to satisfy. Tr. of Oral Arg. 7. Absent some congressional indication to the contrary, we decline to give the same term in the same Act a different meaning depending on whether the rights of the plaintiff or the defendant are at issue. See Commissioner v. Lundy, 516 U. S. 235, 250 (1996) (“The interrelationship and close proximity of these provisions of the statute ‘presents a classic case for application of the “normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning”’” (quoting Sullivan v. Stroop, 496 U. S. 478, 484 (1990))). For the reasons stated above, we agree with the Court of Appeals that no heightened showing is required under § 2000e-2(m). * * * In order to obtain an instruction under §2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that “race, color, religion, sex, or national origin was a motivating factor for any employment practice.” Because direct evidence of discrimination is not required in mixed-motive cases, the Court of Appeals correctly concluded that the District Court did not abuse its discretion in giving a mixed-motive instruction to the jury. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. This case does not require us to decide when, if ever, § 107 applies outside of the mixed-motive context. Title 42 U. S. C. §2000e-5(g)(2)(B) provides in full: “On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court— “(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and “(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).” Of course, in light of our conclusion that direct evidence is not required under §2000e-2(m), we need not address the second question on which we granted certiorari: “What are the appropriate standards for lower courts to follow in making a direct evidence determination in ‘mixed-motive’ cases under Title VII?” Pet. for Cert. i. 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_respond1_3_2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. UNITED STATES of America, Plaintiff-Appellee, v. Toney CHISUM, Jr., Defendant-Appellant. No. 25926. United States Court of Appeals, Ninth Circuit. Jan. 4, 1971. R. Richard Fusilier, Hollywood, Cal., for defendant-appellant. Robert L. Meyer, U. S. Atty., David R. Nissen, Chief, Crim. Div., Brian J. O'Neill, Alan H. Friedman, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellee. Before BROWNING, DUNIWAY and TRASK, Circuit Judges. DUNIWAY, Circuit Judge: In 1967, Chisum was convicted on all counts of a ten-count indictment charging violations of 21 U.S.C. § 174 and 26 U.S.C. § 4705(a). He appealed to this court, and we, on January 14, 1970, affirmed the conviction. Chisum v. United States, 9 Cir., 1970, 421 F.2d 207. On March 5, 1970, Chisum filed a motion to vacate under 28 U.S.C. § 2255. He appeals from denial of that motion. We treat the motion as one for a new trial under Rule 33, F.R.Crim.P., on the ground of newly discovered evidence. The motion was made within two years after the mandate of affirmance from this court. See Casias v. United States, 10 Cir., 1964, 337 F.2d 354. The indictment dealt with three transactions, occurring respectively on May 11, (counts one through four), May 24, (counts five through seven), and May 26, 1966, (counts eight through ten). Counts two and four change a sale of 55.640 grams of heroin to Chris V. Saiz, a federal narcotic agent, in violation of 21 U.S.C. § 174 and 26 U.S.C. § 4705(a). Count one charges concealment, etc. of .620 grams of heroin in violation of § 174, and count three makes the same charge as to the 55.640 grams of heroin. Counts five and seven charge a sale of 18.070 grams of heroin to Saiz in violation of §§ 174 and 4705(a); count six charges concealment, etc. of the same heroin in violation of § 174. Counts eight and ten charge a sale of 6.965 grams of heroin to Saiz in violation of §§174 and 4705(a); count nine charges concealment, etc. of the same heroin in violation of § 174. An examination of the trial transcript reveals that the convictions rest upon the testimony of Saiz, that without his testimony the convictions could not stand. Briefly, his story was as follows: On May 11, 1966, pursuant to a telephone call from Chisum to an informant, Saiz and the informant went to Chis-um’s residence. Chisum showed Saiz a sample of heroin. This is the basis of count one of the indictment. They discussed a sale of heroin to Saiz, and ultimately he purchased 55.640 grams. This is the basis of counts two, three and four. On May 24, Saiz telephoned Chisum at his residence, and then went to the residence. He followed Chisum to another area, where Chisum said his source of supply was located. Chisum disappeared into an alley, came back, and Saiz then followed him to another location. Chis-um made a phone call. Chisum again left, returned, and sold Saiz 18.070 grams of heroin. This is the basis of counts five, six and seven. On May 26, Saiz telephoned Chisum again, went with another agent to Chis-um’s residence, and went to the door. Chisum came out and sold Saiz 6.965 grams of heroin. This is the basis of counts eight, nine and ten. It will be observed that Saiz said that on the first occasion he was accompanied by the informant. The informant did not testify. The court required that his name be disclosed, which was done, but government counsel said that he was unable to locate him. On the second occasion, Saiz said he was alone. On the third occasion, he was accompanied by Agent Restow. Restow testified and said that he saw Chisum hand Saiz a package. Thus only the May 26 transaction is directly corroborated, and only in part. There was, however, testimony by surveilling agents. Agent Jackson said that on May 11 he saw Saiz arrive at Chisum’s residence and enter it; that Chisum later arrived by car and walked toward the residence, subsequently returned to the car, and drove away. Saiz and the informant came out of the residence; Chisum returned; there was a conversation, and Saiz, Chisum and the informant walked toward the residence. Shortly after, Saiz and the informer came out, got into Saiz’ car and drove away. In testifying, Jackson refreshed his recollection from notes made by Agent Downing, who, Jackson said, was with him, but who did not testify. Jackson did the surveillance at Saiz’ request. Agent Celaya said that he conducted surveillance on May 24. He saw Saiz arrive near Chisum’s residence and enter it. He saw Saiz return to his vehicle and follow another to a different location. Chisum got out of the lead car and appeared to talk to Saiz. Then Chisum went into an alley, returned, met and conversed with Saiz. Each returned to his vehicle, and the two cars drove part way around a block. Chisum and Saiz went into a bar at the nearest corner. Then Chisum again went toward an apartment complex, returned and met Saiz. Saiz left and Chisum returned to his residence. At the most, the surveilling agents’ testimony gives credibility to Saiz’s story by corroborating his testimony about his movements. But their testimony says nothing at all about any dealing in heroin between Saiz and Chisum. In support of his motion Chisum presented a certified copy of an indictment, filed July 24, 1969, in a case entitled United States v. Mendelsohn, et al, in the United States District Court for the Central District of California, case No. 4337 Criminal. That indictment contains twelve counts. Count One charges that five government narcotic agents, including Saiz and Downing, conspired, beginning on or about May 10, 1966, to corrupt justice in violation of 18 U.S.C. § 1503, to make false statements in violation of 18 U.S.C. § 1001, to commit perjury in violation of 18 U.S.C. § 1621, to suborn perjury, in violation of 18 U. S.C. § 1622, and to wilfully deprive a citizen, one Romero, of his constitutional rights in violation of 18 U.S.C. § 242. The objective was to convict Romero of violating the narcotics laws. Overt acts include: 2. “On or about May 11, 1966,” the five agents, including Saiz and Downing, “went to the area of Garvey and Meeker Streets in El Monte, California”; This is quite a different area from that where Chisum resided; 7. On or about May 18, 1966, Arthur J. Mendelsohn and Chris V. Saiz submitted a false form 184 to the Federal Bureau of Narcotics; 12. “On or about October 13, 1966, * * * Chris V. Saiz gave false testimony in the trial of” the case against Romero; 13. The same charge against Downing. Count Five separately charges the making of the false form 184 by Mendelsohn and Saiz on May 18, 1966 as a violation of § 1001. It charges that the form contained false statements as to their surveillance of Agent Downing in El Monte on May 10, 1966. Count Ten charges Saiz with perjury and suborning perjury in violation of §§ 1621 and 1622. It charges that certain testimony of Saiz about his surveillance of Romero and Agent Downing was perjured. Count Eleven makes a similar charge against Downing. Count Twelve charges all five agents with depriving Romero of his civil rights, in violation of § 242. The § 2255 motion of Chisum does not show what disposition was made of the case of United States v. Mendelsohn et al. We have obtained from the Clerk of the District Court copies of the judgments in the case. These show that all five defendants, including Saiz and Downing, pleaded guilty to count twelve, and the other counts against them were dismissed. Saiz and Downing pleaded and were sentenced to serve one year, suspended and probation granted on November 24, 1969. We do not consider the dismissal of the other counts, obviously part of a plea bargain, as rehabilitating the veracity of Saiz or Downing for the purposes of Chisum’s case. In our opinion, this case is not governed by the ordinary rules governing motions for a new trial. Rather, it falls within the principles announced in Mes-arosh v. United States, 1956, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1. There, the defendants had been convicted of violating the Smith Act. When the case reached the Supreme Court, the government represented to the Court that one Mazzei, a principal government witness, had given false testimony in other Smith Act cases, which raised a doubt as to his veracity in the Mesarosh case. The government said that it believed that Mazzei’s testimony in the Mesarosh case “was entirely truthful and credible,” and suggested that the case be remanded to the District Court for it to pass upon Maz-zei’s veracity at the Mesarosh trial. The Court, however, declined to accept the suggestion, pointing out that it was the jury, not the trial judge, which passed upon Mazzei’s credibility. Instead, the Court, speaking through Chief Justice Warren, said: * * * “The dignity of the United States Government will not permit the conviction of any person on tainted testimony. This conviction is tainted, and there can be no other just result than to accord petitioners a new trial. “It must be remembered that we are not dealing here with a motion for a new trial initiated by the defense, under Rule 33 of the Federal Rules of Criminal Procedure, [18 U.S.C.A.] presenting untruthful statements by a Government witness subsequent to the trial as newly discovered evidence affecting his credibility at the trial. Such an allegation by the defense ordinarily will not support a motion for a new trial, because new evidence which is ‘merely cumulative or impeaching’ is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial. “Here we have an entirely different situation. The witness Mazzei was a paid informer of the Government — he had been in its employ from 1942 to 1953 for the purpose of infiltrating the Communist Party and reporting the facts found. He testified in this case in that capacity, as a Government witness. It is the Government which now questions the credibility of its own witness because in other proceedings in the same field of activity he gave certain testimony — some parts of it positively established as untrue and other parts of it believed by the Solicitor General to be untrue. (Pp. 9-10, 77 S.Ct. pp. 5-6.) **** “Mazzei, by his testimony, has poisoned the water in this reservoir, and the reservoir cannot be cleansed without first draining it of all impurity. This is a federal criminal case, and this Court has supervisory jurisdiction over the proceedings of the federal courts. If it has any duty to perform in this regard, it is to see that the waters of justice are not polluted. Pollution having taken place here, the condition should be remedied at the earliest opportunity. **** “The government of a strong and free nation does not need convictions based upon such testimony. It cannot afford to abide with them. The interests of justice call for a reversal of the judgments below with direction to grant the petitioners a new trial.” (P. 14, 77 S.Ct. p. 8.) (Footnotes omitted.) This case differs from Mesarosh in one respect. There, as the Chief Justice emphasized, it was the government which brought Mazzei’s perjury to the Court’s attention. In our case, it is the defendant who has done so. But what is before us is not the usual case in which a defendant asserts that a witness has perjured himself. Here, it is the government itself that brought the charge against Saiz and Downing. And the charge concerns another narcotics case that was being investigated by the same agents at the same time that they were investigating Chisum. Saiz testified against Romero in October, 1966. He testified against Chisum in September, 1967. But the subject matter of his testimony in both cases related to contemporaneous and somewhat similar events. We hold that Chisum’s conviction is as much tainted as was the conviction in Mesarosh. The order is reversed and the matter is remanded with directions to vacate the judgment of conviction and grant Chisum a new trial. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_appel1_7_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). UNITED STATES of America, Appellee, v. Ronald Douglas PATILLO, Appellant. No. 13948. United States Court of Appeals, Fourth Circuit. Argued April 6, 1970. Decided Aug. 20, 1970. Albert V. Bryan, Circuit Judge, dissented and filed opinion. Victor J. Ashe, Norfolk, Va. [Court-appointed] (S. W. Tucker, Seymour Du-bow, and Hill, Tucker & Marsh, Richmond, Va., on brief) for appellant. Roger T. Williams, Asst. U. S. Atty. (Brien P. Gettings, U. S. Atty., on brief) for appellee. Before BOREMAN, BRYAN and CRAVEN, Circuit Judges. CRAVEN, Circuit Judge: Ronald Douglas Patillo was convicted on two counts of threatening the life of the President of the United States in violation of 18 U.S.C. Section 871 and was sentenced to terms totaling four years. He appeals, and we reverse and remand for a new trial. I. The district judge, without a jury, found that Patillo made unlawful threats against President Nixon on two occasions while on duty as a security guard at the Norfolk Naval Shipyard. On the night of May 16, 1969, Patillo and another guard, Herbert N. Cherry, with whom he was only casually acquainted, were riding in a patrol car. Without preamble or explanation, Patillo stated to Cherry: “I’m going to kill President Nixon, and I’m going to Washington to do it.” Neither conversant made further reference that night to the subject of Patillo’s statement. Cherry reported the incident to his supervisor who in turn informed the Secret Service. On May 22, 1969, a Secret Service agent was secreted in the trunk of a patrol car to be operated by Patillo and Cherry. While on patrol, with the Secret Service agent listening, Cherry engaged Patillo in conversation about the current rioting and about the President’s nomination of a new Chief Justice of the Supreme Court. Patillo said that the rioting was bad, but did not reply to Cherry’s inquiries about the Supreme Court. Cherry then asked Patillo if he thought “Mr. Nixon was doing a good job.” Pa-tillo said, “I will take care of him personally.” Cherry asked how Patillo intended to accomplish that. Patillo did not directly respond, but stated that “he would gladly give up his life doing it * * Patillo further declared, in response to another question from Cherry, that getting close to the President would present no problem because “he (Patillo) did not need to get close to him (the President) to do it * * At that point the conversation terminated. The trial court fully credited Cherry’s testimony and that of the Secret Service agent. Patillo testified that he had no recollection of the May 16 conversation. He contended that he had nothing against President Nixon, that he didn’t vote, that he was not concerned about politics and that he did not make the statement attributed to him by Cherry. As to the May 22 incident, Patillo testified that he remembered a discussion about the riots but that he had not mentioned or referred to President Nixon. II. The Supreme Court recently interpreted, for the first time, the statute under which Patillo was convicted. Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). In a per curiam opinion, the Court held that 18 U.S.C. Section 871(a) is constitut-tional on its face. The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence. See H. R. Rep. No. 652, 64th Cong., 1st Session (1916). Nevertheless, a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech. 394 U.S. at 707, 89 S.Ct. at 1401. In deciding Watts, the Court recognized two major elements in the offense created by Congress in 18 U.S.C. Section 871(a). The first is that there be proved “a true ‘threat’ ”, 394 U.S. at 708, 89 S.Ct. 1399 and the second is that the threat be made “knowingly and willfully”, 18 U.S.C. Section 871(a). The proof in this case clearly meets the first requirement. Patillo’s statements can be viewed only as true threats. He does not assert that his statements were political hyperbole or mere jest. Compare, Watts v. United States, supra, and Alexander v. United States, 418 F.2d 1203 (D.C. Cir. 1969). Instead, his defense was a general denial. His testimony that he was not concerned with politics and that he never voted was offered to make plausible his assertion that he did not utter the words —not to mitigate or explain away their apparent meaning. Within the Watts requirement that the defendant’s statement be examined in its full context, Alexander v. United States, 418 F.2d 1203 (D.C. Cir. 1969), it is clear that Patillo’s flat statement without provocation, that he was “going to kill President Nixon ■x- * * ” was a true threat. Unlike the May 16 threat, the statements of May 22 were uttered in a context of political discussion. However, it was a very brief discussion. Cherry’s first mention of President Nixon triggered the bald statement: “I [Patillo] will take care of him personally.” In view of Patillo’s admitted lack of concern with politics and with regard to the full context of his statements, the inference drawn by the district judge that the May 22 statement was also a true threat cannot be held erroneous. III. We agree with the district judge that the statements made by Patillo were true threats. We must next determine whether the trier of fact properly found that those threats were uttered with the degree of willfulness sufficient for conviction under Section 871(a). Although recognizing the “willfulness” requirement of Section 871(a), the Watts decision does not resolve a long term controversy over whether “willfulness” means “that a defendant must have intended to carry out his ‘threat’.” 394 U.S. at 707, 89 S.Ct. at 1401. “Some early cases,” the Court observed, “found the willfulness requirement met if the speaker voluntarily uttered the charged words with an apparent determination to carry them into execution. Ragansky v. United States, 253 F. 643, 645 (CA 7th Cir. 1918) (emphasis supplied) ; cf. Pierce v. United States, 365 F.2d 292 (CA 10th Cir. 1966). * * * Perhaps [the Ragansky] interpretation is correct, although we have grave doubts about it. See the dissenting opinion below, [Watts v. United States] 131 U.S.App.D.C. 125, 402 F.2d 676, at 686-693 (Wright, J.)” Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969). Whatever the motivation for the enactment of Section 871(a), see Watts v. United States, 394 U.S. 705, 709, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (Douglas, J., concurring), it is valid as a safety measure to protect the President and to allow him to perform his duties without interference from threats of physical violence. Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969); Watts v. United States, 131 U.S.App.D.C. 125, 402 F.2d 676, 679 (1968) (Wright, J., dissenting) ; both citing H.R.Rep. No. 652, 64th Cong., 1st Session (1916). The statute must be strictly construed, as are all criminal statutes, to accomplish no more than this purpose. Chief Justice Marshall best stated this rule of construction in United States v. Wiltber-ger, 5 Wheat. 76, 5 L.Ed. 37 (1820): The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself * * * The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. 5 Wheat, at 95-96, 5 L.Ed. 37, quoted in Yates v. United States, 354 U.S. 298, 304, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). We think that many of the courts that construed Section 871(a) prior to Watts departed “from the plain meaning of words * * * in search of an intention which the words themselves did not suggest,” with pernicious results. For example, one court held that “[t]he vital inquiry under the act is whether the threat is of such a nature as to create or tend to create sedition or disloyalty.” United States v. Stobo, 251 F. 689 (D.Del.1918). In United States v. Stickrath, 242 F.151 (S.D .Ohio 1917), the first case construing Section 871(a), the court held that the words “knowingly and willfully” in the statute “are intended to signify that the defendant, at the time of making the threat charged him, must have known what he was doing, and, with such knowledge, proceeded in violation of law to make it. They are used in contradistinction to ‘ignorantly’ and ‘unintentionally’.” Id. at 154. The interpretation of “knowingly and willfully” alluded to by the Supreme Court in Watts was first stated in Ragansky v. United States, 253 F. 643, 645 (7th Cir. 1918): A threat is knowingly made, if the maker of it comprehends the meaning of the words uttered by him. * * * And a threat is willfully made, if in addition to comprehending the meaning of his words, the maker voluntarily and intentionally utters them as the declaration of an apparent determination to carry them into execution. This language in Ragansky was part and parcel of a holding, now discredited by Watts, that a statement made in jest falls within the ambit of Section 871(a). The Ragansky interpretation of “willfully and knowingly” is not in keeping with the meaning traditionally accorded to those words when found in criminal statutes. “The word [willfully] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose. * * ” United States v. Murdock, 290 U.S. 389, 394, 54 S.Ct. 223, 225, 78 L.Ed. 381 (1933). Ragansky’s version of the willfulness requirement demands only an “apparent determination,” expressed by the words themselves, to perpetrate the act threatened. We believe that a “bad purpose” assumes even more than its usual importance in a criminal prosecution based upon the bare utterance of words. Americans, nurtured upon the concept of free speech, are not accustomed to controlling their tongues to avoid criminal indictment. This case does not involve the communication, or attempted communication, by a defendant of his threat to the President. Accordingly, we do not here consider what intent requirement may be effective to accomplish an insulation of the President from threats of violence to his person and also be in accordance with the wording of Section 871(a). We hold that where, as in Patillo’s case, a true threat against the person of the President is uttered without communication to the President intended, the threat can form a basis for conviction under the terms of Section 871(a) only if made with a present intention to do injury to the President. Such intent may take the form of a bad purpose to personally do harm to the President or to incite some other person to do the injury. This is the most reasonable construction of the statute’s plain language viewed in light of Congress’ manifest purpose to protect “the safety of [the] Chief Executive.” 394 U.S. at 707, 89 S.Ct. 1399. There is no danger to the President’s safety from one who utters a threat and has no intent to actually do what he threatens. While threatening remarks made without intent to later carry them out and without intent to incite others may, nevertheless, incite others, Congress has precluded the application of the statute to such remarks by requiring willfulness by him who threatens. Without so deciding, we note that an exception, under the normal definition of willfulness, may occur where inflammatory statements are made in a “full context” evidencing on the part of the speaker a reckless disregard for the strong likelihood that his listeners would be incited to do harm to the President. The district court, quite understandably, applied the time honored Ragansky willfulness requirement, which we today reject, to Patillo’s case. The court articulated that rule as follows: The question of intent really is not the issue or a bad purpose is not necessary to constitute a violation of the law when the threat is made, and when the section refers to “knowingly and willfully” it means that it is knowingly made if the maker comprehends the meaning of the words which are uttered by him and is willfully made if, in addition to comprehending the meaning of the words, the maker voluntarily and intentionally utters them as a declaration of an apparent determination to carry them into execution. Because Patillo was thus tried in accordance with legal principles that we have found to be erroneous, his convictions under 18 U.S.C. Section 871 must be reversed and his case remanded for a new trial. Reversed and remanded. . 18 U.S.C. Section 871. Threats against President and successors to the Presidency. (a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of the President, or Vice President-elect, shall be fined not more than $1,000 or imprisoned not more than five years, or both. . Patillo was sentenced to two consecutive two year terms under the provisions of 18 U.S.C. Section 4208(a) (1964). . The Supreme Court’s flat statement upholding the statute’s facial constitutionality unquestionably forecloses these arguments urged upon us by the appellant: (1) The constitution forbids punishment of pure speech as treason or otherwise, and (2) The statute is unconstitutionally vague. . Cases decided by the lower federal courts prior to the Supreme Court’s Watts decision had placed an extremely broad interpretation upon the “threat” requirement of 18 U.S.C. § 871(a). Neither conditional language, United States v. Jasick, 252 F. 931 (E.D.Mich.1918), nor jest, Pierce v. United States, 365 F.2d 292 (10th Cir. 1966), nor political hyperbole, Rothering v. United States, 384 F.2d 385 (10th Cir. 1967) escaped inclusion in the pre-Watts definition. Indeed, most of the early cases indicate a preoccupation with the supposed disloyal nature of the utterances punishable under the statute. E. g., United States v. Stobo, 251 F. 689 (D.Del.1918); United States v. Stickrath, 242 F. 151 (S.D.Ohio 1917). See, generally, Comment, Threatening the President: Protected Dissenter or Potential Assassin, 57 Geo. L.J. 553 (1969) and Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (Douglas, J., concurring). . The appellant contends that his statements on May 16 and those on May 22 should not be considered together for purposes of establishing their nature or the intent with which they were made. We reject this contention. It is familiar learning that similar offenses, close in time, may be viewed together to establish intent and knowledge. McCormick, Evidence Section 157. Furthermore, one statement constituting a threat to the President may be, as here, part of “the full context” in which was made another statement also alleged to constitute an unlawful threat. Such statements, though made at different times, must perforce be considered together. See Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969); Alexander v. United Statesf, 418 F.2d 1203 (D.C.Cir. 1969). . For early interpretations of the willfulness requirement contra the Ragansky rule, see United States v. Metzdorf, 252 F. 933 (D.Mont.1918), and United States v. French, 243 F. 785 (S.D.FIa.1917). . As noted by Wright, J., dissenting' in Watts v. United States, 402 F.2d 676, 687 (D.C.Cir. 1968), this was the view stated by a Congressman who sponsored the bill codified as 18 U.S.C. § 871. Referring to the intent requirement, Congressman Webb said: “ * * I think he ought to be shown to have done it willfully. I think it must be a willful intent to do serious injury to the President. If you make it a mere technical offense, you do not give him much of a chance when he comes to answer before a court and jury. I do not think we ought to be too anxious to convict a man who does a thing thoughtlessly. I think it ought to be a willful expression of an intent to carry out a threat against the Executive, and I hope that the gentleman will not offer his amendment [to delete the willfulness requirement].” 53 Cong. Rec. 9378 (1916). Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_applfrom	E	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). Ronnie ATWELL, Plaintiff-Appellant, v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, et al., Defendants-Appellees. No. 85-3187. United States Court of Appeals, Fifth Circuit. Sept. 26, 1986. Lawrence B. Fabacher, II, New Orleans, La. (Court appointed), for plaintiff-appellant. Terry Boudreaux, Patricia E. Black, Asst. Dist. Attys., New Orleans, La., for defendants-appellees. Before CLARK, Chief Judge, GOLDBERG and GARWOOD, Circuit Judges. GARWOOD, Circuit Judge: Rennie Gordon Atwell, who is serving a life sentence in the Louisiana state penitentiary, appeals from the district court’s denial of his petition for writ of habeas corpus. Atwell asserts two primary grounds for relief. First, he claims that he was indicted by a grand jury that did not represent a fair cross-section of the community as required by the United States Constitution. Second, he contends that the state’s failure to disclose prior arrest and conviction records of potential state witnesses and jurors and potential jurors’ voting records violated his due process rights. Finding that Atwell has failed to demonstrate a constitutional violation, we affirm. Facts and Proceedings Below In early 1975, the Orleans Parish Jury Commissioners ceased requiring process servers to serve jury duty summons in the New Orleans Desire Housing Project because of violence in that area. The service of jury duty summons was resumed by August or September of 1975. On March 1, 1975, during the time that summons were not being served in the heart of the Desire housing project, a grand jury was impaneled, which continued until August 31, 1975. On April 3, 1975, petitioner At-well was indicted by this grand jury for first degree murder. Atwell was convicted for first degree murder on February 18, 1976, by a petit jury selected after service of jury duty summons in the Desire project had been resumed. The Louisiana trial court sentenced Atwell to life imprisonment without benefit of pardon, parole, commutation, or suspension of sentence. The Louisiana Supreme Court affirmed Atwell’s conviction and sentence on direct appeal, finding that the trial court had properly denied Atwell’s motion to quash his indictment, but remanded for a hearing to determine whether the state had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose prior arrest and conviction records of its potential witnesses. State v. Harvey, 358 So.2d 1224 (La.1978). After a hearing on remand, the trial court found that, at the time of Atwell’s trial, the state had no knowledge of any prior convictions of its witnesses and that there was no evidence that the state's witnesses had any prior arrests or convictions. On appeal, the Louisiana Supreme Court affirmed. State v. Harvey, 369 So.2d 134 (La.1979). Atwell was represented by counsel throughout his state trial, appeal, proceedings on remand, and subsequent appeal. Atwell filed this habeas corpus petition in the district court for the Eastern District of Louisiana pursuant to 28 U.S.C. § 2254. The state concedes that Atwell has exhausted his state remedies. The district court referred the case to a magistrate, but later revoked the order and, without a hearing, denied relief on all grounds. Discussion Cross-Section Claim Atwell seeks federal habeas relief based on his claim that exclusion of the Desire housing project residents violated his constitutional right to a fair cross-section of the community on the panel from which his grand jury was drawn. See Eggleston v. Estelle, 513 F.2d 758, 760-61 (5th Cir.1975). In State v. Cage, 337 So.2d 1123 (La.1976), the Louisiana Supreme Court addressed a challenge by Harry Cage of the identical grand jury that indicted Atwell. See State v. Ferguson, 358 So.2d 1214, 1222 (La.1978) (Summers, J., concurring). The Louisiana Supreme Court held that the exclusion of Desire housing project residents from jury service, though not improperly motivated, nevertheless violated Cage’s federal and state constitutional rights “because the exclusion was deliberate and involved a sizeable and distinctive group in the community.” Cage, 337 So.2d at 1125. It sustained the trial judge’s quashing of Cage’s indictment. Atwell, prior to his trial, moved through his counsel to quash his indictment on the ground that residents of the Desire project were not being served with jury duty summonses when his grand jury was selected. A copy of the transcript of the testimony at Cage’s hearing on this subject was introduced in support of Atwell’s motion and considered by the trial court, which nevertheless overruled the motion. On direct appeal of Atwell’s conviction, the Louisiana Supreme Court sustained the trial court’s refusal to quash Atwell’s indictment because of its decision that same day in Ferguson, 358 So.2d at 1216-17, that Cage should be applied prospectively only to ve-nires selected after the date of the Cage decision. Harvey, 358 So.2d at 1229-30. Because we are not bound by the Louisiana Supreme Court’s interpretation of the United States Constitution, we must determine whether Atwell established in the federal district court that he is entitled to habeas relief. Atwell, as habeas petitioner, bears the burden of proving, at the least, that a constitutionally distinctive group or identifiable segment of the community was purposefully excluded from his grand jury venire by the jury selection process. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court articulated the showing necessary to establish a violation of the Sixth Amendment fair cross-section requirement. The defendant must show: “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underre-presentation is due to systematic exclusion of the group in the jury-selection process.” Id. at 668. In addressing the underrepresentation requirement, the Duren Court stated: “Initially, the defendant must demonstrate the percentage of the community made up of the group alleged to be underrepresented, for this is the conceptual benchmark for the Sixth Amendment fair-cross-section requirement.” Id. Furthermore, the defendant must show that the underrepresentation of the group at issue “generally and on his venire, was due to their systematic exclusion in the jury selection process.” Id. at 669 (emphasis added). Once the defendant has made a prima facie showing, the state may justify the infringement “by showing attainment of a fair cross section to be incompatible with a significant state interest.” Id. at 671. Because Atwell has not established that the failure to serve jury duty summonses in the Desire housing project caused residents of that project to be underrepresented on his grand jury venire, we find that his claim in this connection must fail. At the state trial court hearing on Atwell’s motion to quash his indictment, the state and the defense entered into a stipulation concerning the testimony offered in the Cage case by the Chairman of the Orleans Parish Jury Commissioners. The trial court entered the transcript of the December 15, 1975 evidentiary hearing conducted on the motion to quash in the Cage case into Atwell’s trial court record. Atwell presented no additional evidence to the state court in support of his motion to quash. Atwell asserts that his evidence is the same as the Cage evidence and does not suggest that he sought to offer, either before the state trial court or the federal district court, any evidence other than the transcript of the testimony at the Cage hearing. The transcript of the testimony at the Cage hearing on the grand jury selection reflects that, during the time the grand jury at issue was impaneled, service of jury duty summons was discontinued in the Desire housing project, or at least in “the heart” of the project. Also, a housing project statistician testified that in October 1975 there were 9,531 residents in the housing project and that the entire Desire population was black. In addition, the Chairman of the Orleans Parish Jury Commissioners testified that, in impaneling a grand jury, venires of seventy-five persons were drawn from the Register of Voters, and that the trial court judge selected the grand jury from the venire. There was no evidence that any Desire resident (or a resident from the heart of the project) was selected for Atwell’s venire. Nor was there any evidence as to the number of registered voters in the Desire project or the statistical likelihood that a Desire resident would have been chosen. Moreover, there was no evidence concerning the proportion in Orleans Parish of persons with demographic characteristics similar to those in the Desire project. The Jury Commission Chairman did testify that the seventy-five-person grand jury venires were usually forty-five to fifty-five percent black. There was no other evidence of the racial or socio-economic makeup of the particular venire or of Atwell’s grand jury which was chosen from it. Just as in Preston (where the record apparently contained all the same evidence as here, plus other evidence), we conclude that “no evidence was presented that in the selection process for” Atwell’s grand jury venire “names of any Desire residents were chosen for the wheel to be served in the first place,” id. at 101 (footnote omitted), and the Desire group “is so small that we may not infer, as a statistical matter, that some number of them must necessarily have been included in the venire chosen from the wheel.” Id. at 102. Accordingly, Atwell has tendered no prima fade showing that the practice of not serving within the Desire project affected the make-up of his grand jury venire. The district court correctly ruled that no constitutional defect was shown respecting the selection of the grand jury. Due Process Brady v. Maryland Claim Atwell also contends that the state failed to disclose to him prior arrest and conviction records of its potential witnesses in response to his pretrial request in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In ruling on Atwell’s direct appeal, the Louisiana Supreme Court, relying on United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), remanded for a hearing to determine whether there was suppression of material “for which there was a substantial basis for claiming that materiality existed,” 358 So.2d at 1233. After the remand hearing, the Louisiana Supreme Court affirmed the trial court’s finding that the state had not suppressed information requested by the defendants. 369 So.2d at 134. Factual determinations made by a state court after a full and fair hearing on the merits are entitled to a presumption of correctness. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 767-69, 66 L.Ed.2d 722 (1981). Unless we determine that the state court’s factual finding is not “fairly supported by the record,” Atwell must establish by “convincing evidence” that the factual determination was erroneous. Id. at 771. We hold that the state court’s determination is supported by the record. Atwell’s claim that the state attorney who testified at the remand hearing was not familiar with the circumstances of Atwell’s trial is unsupported as the attorney demonstrated sufficient knowledge of the circumstances of Atwell’s trial. He denied any prosecution knowledge of any prior record of the witnesses. The defense counsel stated that he was not aware of any prior convictions of the state witnesses, although he said defendants (Atwell and Harvey) “do believe there was prior arrests, but not any prior convictions.” Atwell simply did not make out a Brady or Agurs violation at his state hearing. There was no evidence or tender of evidence that any of the witnesses had any convictions or arrests. So far as the record reflects, this was purely unsupported, general speculation on the part of the defense. Atwell also challenges the trial court’s denial of his request for prior arrest and conviction records of potential jurors. The Louisiana Supreme Court, accepting as true Atwell’s allegations that the state had this information and intended to use it in jury selection, and that he could not obtain it from other sources, held that Atwell was entitled either to be given the information or to question the prospective jurors. Finding no indication that Atwell was demed the right to question prospective jurors, the Louisiana Supreme Court affirmed the trial court’s decision. 358 So.2d at 1230-32. We find that Atwell has failed to establish that this information would be material to his case. He does not assert that he was prevented from questioning the prospective jurors. In addition, he has failed to allege any facts supporting his claim that some prospective jurors had criminal records and that this information was suppressed by the state. Finally, Atwell also asserts a due process violation in the trial court’s denial of his motion to examine the prior voting records of prospective jurors, which was affirmed by the Louisiana Supreme Court. 358 So.2d at 1231. Again, Atwell has not established that this information would be material to his case or that he was unable to obtain this information on the jury voir dire. Accordingly, we find that Atwell has not established a due process violation. Conclusion Finding that Atwell’s claims are without merit, we affirm the district court’s denial of the writ of habeas corpus. AFFIRMED. . Atwell and another conspired to rob Robert Alexander, committed armed robbery of him, during the course of which Alexander was murdered, and thereafter divided the robbery proceeds among themselves and Atwell’s co-defendant James Harvey. . Atwell asserted a third (and final) ground for relief in his habeas petition, complaining of the fact that his sentence was “without benefit of probation or suspension of sentence." The jury verdict found Atwell "Guilty without Capital Punishment or Benefit of Parole, Probation, or Suspension of Sentence.” Atwell’s complaint, though rather confused, appears to have been that the Louisiana law which authorized a verdict as above set out did not become effective until July 1973, and hence could not constitutionally be applied to his offense which was committed January 2, 1973. However, Atwell’s chronology is mistaken, as the law authorizing this character of verdict came into effect July 12, 1972. Acts 1972, No. 502 (House Bill 97, amending article 817 of the Louisiana Code of Criminal Procedure). Although that law was itself amended in June 1973 (effective July 1973), this 1973 amendatory act specified that ”[t]his Act shall not apply to the prosecution and trial for any crime committed before the effective date of this Act. Qualification of verdicts for crimes committed before that time shall be governed by the law existing at the time the crime was committed.” Acts 1973, No. 125, section 2 (Senate Bill 90, amending article 817 of the Louisiana Code of Criminal Procedure). Hence, Atwell's case continued to be governed by the 1972 law, which authorized the sentence in question and was the law in effect when his crime was committed. Atwell’s third ground may also have included a complaint of the 1979 repeal of the law (La.R.S. 15:571.7) which was in effect when he was sentenced and allowed petition requesting commutation of a life sentence after serving ten years and six months confinement. We have held that this repeal did not violate the rights of those to whom the former statute had been applicable. Dunn v. Maggio, 712 F.2d 998 (5th Cir.1983), cert. denied, 465 U.S. 697, 104 S.Ct. 1297, 79 L.Ed.2d 697 (1984). Atwell’s counsel conceded at oral argument before us that his sentence was not illegal. This concession is well taken. The district court did not err in holding Atwell’s third ground was without merit. . In a different procedural context, we addressed a challenge raised by another habeas petitioner to a petit jury selected from the same venire from which the grand jury that indicted Atwell was selected. In Preston v. Maggio, 741 F.2d 99 (5th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2334, 85 L.Ed.2d 850 (1985), we upheld the denial of habeas relief to petitioner Preston, who challenged his Louisiana conviction on the same Desire housing project grounds asserted by Atwell. However, Preston had not challenged the composition of his jury at his trial or on direct appeal in the state court system. His state court habeas petitions were denied without comment. Because Preston had failed to comply with the Louisiana contemporaneous objection rule, we were compelled by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), to determine whether he showed "cause and prejudice” respecting his failure to object. Declining to fully define "actual prejudice,” we observed that “Preston must, as a minimum, [have shown] that names of Desire residents were in fact chosen from the wheel to make up the venire out of which his jury panel was eventually chosen, and that they were not served." Id. at 101. Based on testimony offered at the district court’s evidentiary hearing and ”[t]he facts contained in the Cage opinion [stipulated by the parties],” we concluded that there was no evidence that the names of any Desire residents were chosen to be served. Id. at 101 and 102 n. 5. In addition, we determined that the excluded group was too small statistically for us to infer that some Desire residents must necessarily have been selected for the venire. Id. at 102. . Cf. Vasquez v. Hillery, — U.S.-, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (systematic exclusion of blacks from grand jury in violation of equal protection clause is not subject to harmless error review). . Atwell’s state record contains no transcript of a hearing on his motion to quash. The minute entries reflect that a copy of the transcript of the evidence at the Cage hearing was all that was offered or considered on Atwell’s motion, and this comports with the parties’ characterization of the Atwell proceedings. Atwell’s state record does include a copy of the complete transcript of the testimony at the Cage hearing on Cage’s motion to quash. . The Chairman of the Orleans Parish Jury Commissioners testified that during the time in question "we weren’t serving the heart” of the project. He further testified that process servers were not required to serve within the project during this time: "I let them take it on their own. If they wanted to go in, they could. If not, I wouldn’t force them.” When asked "some of your process servers did go in there?” he replied, “It's possible, but I doubt it sincerely.” At another point he was asked "were your process servers not going into the Project area?” and he answered, "They were told they didn’t have to go if they didn’t want to. That’s correct. I don’t think anybody was going into the Desire Project.” He also testified that this had nothing to do with race, or other group characteristic, but “just fear of the man’s life.” There was no contrary evidence. . The Louisiana Supreme Court’s opinion in Cage reflects that 2,695 of these residents were at least eighteen years of age. 337 So.2d 1123. . No complaint has been made in this federal habeas proceeding respecting use of the list of registered voters as the sole source from which names for a venire were drawn. . In his concurring opinion in Ferguson, Justice Summers of the Louisiana Supreme Court stated with respect to the Desire project service issue presented there (which he stated involved the same grand jury): “[R]esidents on the outskirts of the project were served. "Of those who lived within the project and whose names were drawn for inclusion on the jury venire from which the grand jury was drawn, the chairman of the jury commission guessed that less than fifty percent resided within the heart of the project. He was also of the opinion that much less than ten percent of the grand jury venire were residents of the project. "The jury wheel from which the grand jury venire of 425 was drawn consisted of eighteen thousand names. These names were, in turn, taken from flies containing two hundred thousand names compiled from the voter registration list. The commissioner could not say how many residents of the Desire Project were included on the list from which the grand jury venire was selected.” Ferguson, 358 So.2d at 1222-23. We note that none of this testimony or evidence is included in the transcript of the Cage hearing testimony introduced in Atwell’s case or is otherwise in this record or Atwell’s state record (apparently in Ferguson there was different evidence on this issue than in Cage; no reference to the Ferguson evidence was made below or in Atwell’s state record). Nor do we think that these recited "facts” establish that the grand jury venire in question here listed any Desire residents who were not served. . Hence we pretermit all other questions in this respect, including whether Desire project residents are a constitutionally distinctive group and the legal sufficiency of the reasons for not requiring process to be served. Atwell had an equal protection right to a grand jury selected under procedures free from racial discrimination. No invasion of such right is shown. We do not hold that Atwell also had a right (or one cognizable on habeas corpus) to a grand jury selected under cross-sectional procedures similar to those implicated by the Sixth Amendment, nor do we intimate any opinion on that issue; we merely assume, ar-guendo only, that he did have such a right, and hold that even if he did, a violation thereof is not shown. In light of the comments in the dissenting opinion, we note that in Cage the Louisiana Supreme Court stated (337 So.2d at 1125): ‘We attribute no evil motive to the jury commission in its failure to cause subpoenas to be served on prospective jurors in the Desire housing project. On the contrary, it appears that service was discontinued for a period of time in this area out of a sincere concern for the safety of the process servers. Furthermore, we do not doubt that the jury commission itself lacked the wherewithal to provide the needed protection and that time was required to obtain assistance from other governmental agencies." In Cage (and in this case), the state courts, trial and appellate, found no racial or other discriminatory animus to play any part in the decision temporarily not to require process service in the Desire project. The record in this case — including the transcript of the Cage hearing — contains no evidence of any such animus, and affirmatively reflects the contrary, namely, that the only concern was a bona fide, realistic one for the safety of the process servers. No claim to the contrary was made below or to us. Further, we do not approach the question before us from the point of view of “prejudice" in the sense of requiring Atwell to show that this indictment might have been less likely had not the service of process in the project been suspended; rather, we merely require him to show that at least some members of his grand jury venire were, or were likely, Desire residents, so that the challenged practice would at least have potential relevance to his case. But, as noted, there is no showing whatever of the racial or socio-eco-nomic composition of Atwell’s grand jury ve-nire, much less of his grand jury itself. . No specific witness, or possible specific arrest or conviction, was ever mentioned by the defense. It was not shown that the defense ever questioned any witness at trial about prior arrests or convictions, or requested leave to do so out of the presence of the jury or otherwise. No relevance of possible prior arrests was suggested. 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_state	34	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". William N. GROSCH, Appellant, v. Curtis W. TARR, The National Director of Selective Service, et al., Appellees. No. 71-1862. United States Court of Appeals, Fourth Circuit. Argued Jan. 7, 1972. Decided Jan. 18, 1972. Thomas F. Loflin, III, Durham, N. C. (Loflin, Anderson & Loflin, Durham, N. C., on brief), for appellant. N. Carlton Tilley, Jr., Asst. U. S. Atty. (William L. Osteen, U. S. Atty., on brief), for appellees. Before BRYAN and RUSSELL, Circuit Judges, and YOUNG, District Judge. PER CURIAM: The appellant sought declaratory and injunctive relief to require a reopening of his classification after notice of induction by his Selective Service Board. Relief was denied by the District Court on the basis of Section 10(b) of the Selective Service Act of 1967, which prohibits judicial review of the classification of a registrant after the issuance of an order of induction. We affirm. The Courts have, it is true, established certain minor exceptions to the prohibition on judicial review as prescribed by Section 10(b) but the registrant did not bring himself within such exceptions. Affirmed. . See, Oestereich v. Selective Service System Local Board No. 11 (1968) 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402; Breen v. Selective Service Local Board (1970) 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653, and Grosfeld v. Morris (4th Cir. 1971) 448 F.2d 1004. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_circuit	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. WYANT v. UNITED STATES FIDELITY & GUARANTY CO. No. 4689. Circuit Court of Appeals, Fourth Circuit. Dec. 12, 1940. Claude Wyant, pro se, for appellant. Handlan, Garden & Matthews, of Wheeling, W. Va., for appellee. Before PARKER and SOPER, Circuit Judges, and WILLIAM C. COLEMAN, District Judge. PER CURIAM. This is the third appeal in a receivership case. The first was from a decree affirming the report of a special master and directing the distribution of funds in the hands of the receiver. We remanded the case in order that findings might be made as to the basic facts involved in the controversy. Wyant v. Caldwell, 4 Cir., 67 F.2d 374. Upon the remand, the appellant filed an affidavit of prejudice against the judge who had heard the ease originally and another judge was designated to hear it in his stead. The latter found the facts fully as to all matters involved except as to an allowance of $850 to the receiver; and upon the second appeal we affirmed his findings except as to this allowance and remanded the case for further findings as to it. In our opinion we stated that the judge who had made the allowance should file an opinion giving his reasons therefor and that the trial judge, “considering this opinion, the facts already disclosed, and any added facts that rtiay be shown, should in the exercise of his own judgment deterr mine the matter”. 4 Cir., 86 F.2d 357, 359. Upon the second remand, these things were done. The judge who had made the allowance filed an opinion setting forth his reasons therefor, and the judge hearing the case considered this opinion along with the facts disclosed by the record and approved the allowance. With respect to the allowance, the judge who made it said in his opinion: “In this case, the property was ultimately sold to the plaintiff Wyant, for the sum of $2,650.00; however, Wyant was the owner in his own right of some $7,450.00 worth out of a total of $15,000.00 worth of first mortgage bonds of this company. The balance of these bonds was held in small denominations by a scattered group of bondholders, most of whom had long since, in their own minds at least, charged these bonds off as worthless, and no one of whom, nor any group of whom, had sufficient equity to justify their making a serious contest at the sale of this property. In fact, at said sale Mr. Wyant professed to be acting for all the bondholders. The physical assets of the company, with the exception of the company’s franchise, were probably valueless. The franchise had a value as constituting competition to the Bell Telephone System. At the time of the sale of the assets of the company, it was understood by all parties that Wyant would buy the company and immediately sell it to said Bell Telephone System. This he did. The price obtained from the Bell Company does not appear in the record, but it was the understanding of the Court and all the parties to this proceeding, that this price amounted to about $7,000.00; “Therefore, in making the allowance to the receiver, this court considered the property handled by the receiver to have been worth $7,000.00, rather than the actual sale price. Wyant was the only person in a position to bid for the property. The property was obviously not worth anything like the bond issue standing against it, and as previously stated, My. Wyant controlled the only single substantial block of said bond issue. It was understood by all parties that the actual cash paid at the sale was only to be enough to cover the costs of this suit, which of course, included the receiver’s commission.” The judge below set forth the facts regarding the allowance as follows: “In the course of investigation as to the propriety of the allowance made the receiver, one important fact has developed as to which there has, apparently, been a misunderstanding by both the Circuit Court of Appeals and this court. In the opinion of the former, 86 F.2d at pages 358, 359, it is said that no allowance was made for attorney’s fees and it does not appear whether or not the services of an attorney were required during the receivership. While my' previous opinion noted the fact that the receiver had been represented by counsel, there was no mention or discussion of any allowance or fee paid such attorney. Both this court and the appellate court have been acting on the assumption that an allowance of $500.00 and a further allowance of $850.00 were both paid to the receiver for his services as such. This no doubt was due to the fact that the decree of November 9, 1932, confirming the receiver’s report and ordering the payment of expenses directed the following payment: “ ‘Samuel R. Caldwell, receiver, fee and expenses $569.00’ and later in the decree it was directed that ‘said receiver be allowed for his services herein as such receiver the further sum of $850.00 * * * ’. “On further inquiry since the case was last remanded by the appellate court, it now develops that the allowance of $569.00 was to the attorney for the receiver and to cover his fee and out of pocket expenses. This is established by Mr. John C. Palmer, Jr., who states that he was counsel for the receiver throughout the proceedings. That 'his books of account show his charge of $569.00 and its payment in a pro-rated amount pursuant to the order of the court allowing it. In this connection, it should be said that the decree of November 9, 1932, after approving the receiver’s report and directing the payments of expenses and allowances as set out therein, provided “ ‘And it further appearing from said report that there is now in the hands of said receiver the sum of $1,862.52 in cash, and it appearing that said sum is not sufficient to pay all of the above mentioned costs and allowances in full, it is further adjudged, ordered and decreed that said receiver shall, after twenty days from this date, disburse said amount now in his hands pro rata in the payment of the above costs and allowances * * * ’. “In pursuance of this pro rata distribution the attorney for the receiver was paid $463.00 on the allowance of $d69.00 for his fee and expenses. And the receiver himself received $692.00, as the pro rata of the allowance of $850.00 made to him. It appears, therefore, that the entire amount which the receiver was paid in this case for his services was $692.00. Considering the conditions under which this receivership was carried on, depicted in my previous opinion, it would seem that both the receiver and his attorney were none too well paid if measured by the trouble, annoyance and harrassment to which the performance of their duties was constantly subjected. No doubt the services of counsel were in almost constant demand in the controversies arising during the receivership. The receiver gave substantially his entire time to his duties which were troublesome and detailed.” And, after adverting to the circumstances under which appellant had purchased the property worth approximately $7,000 for $2,650, the judge below said: “Under such circumstances, it is not to be expected that the receiver’s compensation should be fixed solely with regard to the amount actually paid to him by the purchaser and actually disbursed. He had handled and disposed of a property, the actual value of which, without dispute, was $7,000.00. He had conducted the affairs of the insolvent corporation for some months under difficult conditions. Under all the circumstances, I am of the opinion that the allowance of $850.00 (out of which he actually received only $692.00) was not unreasonable nor unfair to the interests of other persons and I so find.” It is well settled that allowances of this character rest in the sound discretion of the trial judge. Wiggington v. Auburn Wagon Co., 4 Cir., 33 F.2d 496, 501; Milbank, Tweed & Hope v. McCue, 4 Cir., 111 F.2d 100. While the allowances to the receiver and his attorneys appear rather large considering the amount involved, we cannot say upon the record that any abuse of discretion has been shown. And in view of the fact that appellant was permitted to purchase for $2,650 property which he sold shortly afterwards for $7,000, and which the court finds to have been worth the latter amount at the time of sale, he is hardly in position to complain that he has not received from the receivership all that he was entitled to; and no other bondholder or creditor is complaining. Of course the matters settled on the second appeal in this cause cannot be reopened on this appeal. Chesapeake & O. R. Co. v. Mears, 4 Cir., 70 F.2d 490; Dodd v. Union Indemnity Co., 4 Cir., 32 F.2d 512. The decree appealed from will accordingly be affirmed. Affirmed. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
sc_adminaction_is	B	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. BARNHART, COMMISSIONER OF SOCIAL SECURITY v. SIGMON COAL CO., INC., et al. No. 00-1307. Argued November 7, 2001 Decided February 19, 2002 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scaua, Kennedy, Soutee, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion, in which O’Connor and Breyer, JJ., joined, post, p. 462. Paul R. Q. Wolfson argued the cause for petitioner. With him on the briefs were Solicitor General Olson, Acting As sistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Mark B. Stern, and Jeffrey Clair. Peter Buscemi argued the cause for the Trustees of the United Mine Workers of America Combined Benefit Fund as amici curiae urging reversal. With him on the brief were John R. Mooney, Mark J. Murphy, and David W. Allen. John R. Woodrum argued the cause for respondents. With him on the briefs was Harold R. Montgomery. Grant Crandall filed a brief for the United Mine Workers of America as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the Bellaire Corp. by Donald B. Ayer, Jonathan C. Rose, and Thomas A Smock; for R. G. Johnson Co., Inc., by Mary Lou Smith; and for USX Corp. et al. by David J. Laurent. Justice Thomas delivered the opinion of the Court. This case arises out of the Commissioner of Social Security’s assignment, pursuant to the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act or Act), 26 U. S. C. § 9701 et seq. (1994 ed. and Supp. V), of 86 retired coal miners to the Jericol Mining, Inc. (Jericol). The question presented is whether the Coal Act permits the Commissioner to assign retired miners to the successors in interest of out-of-business signatory operators. The United States Court of Appeals for the Fourth Circuit held that it does not. Sigmon Coal Co. v. Apfel, 226 F. 3d 291 (2000). We affirm. HH The Coal Act reconfigured the system for providing private health care benefits to retirees in the coal industry. In restructuring this system, Congress had to contend with over half a century of collective-bargaining agreements between the coal industry and the United Mine Workers of America (UMWA), the coal miners’ union. Tensions between coal operators and the UMWA had often led to lengthy strikes with serious economic consequences for both the industry and its employees. Confronted with an industry fraught with contention, Congress was faced with a difficult task. This was not the first time that the Federal Government had been called on to intervene in negotiations within the industry. Such tensions motivated President Truman, in 1946, to issue an Executive Order directing the Secretary of the Interior to take possession of all bituminous coal mines and to negotiate with the UMWA over changes in the terms and conditions of miners’ employment. See Eastern Enterprises v. Apfel, 524 U. S. 498, 504-505 (1998) (plurality opinion) (quoting 11 Fed. Reg. 5593 (1946)). These negotiations culminated in the first of many agreements that resulted in the creation of benefit funds compensating miners, their dependents, and their survivors. 524 U. S., at 505. Subsequently, in 1947, the UMWA and several coal operators-entered into a collectively bargained agreement, the National Bituminous Coal Wage Agreement (NBCWA), which established a fund under which three trustees “were given authority to determine,” among other things, the allocation of benefits to miners and their families. Id., at 505-506. Further disagreement prompted the parties to negotiate another NBCWA in 1950. The following year, the Bituminous Coal Operators’ Association (BCOA) was created as a multi-employer bargaining association and primary representative for the coal operators in their negotiations with the UMWA. Id., at 506. While the NBCWA was amended occasionally and new NBCWAs were adopted in 1968 and 1971, the terms and structure of the 1950 agreement remained largely unchanged between 1950 and 1974. Ibid. In 1974, in order to comply with the Employee Retirement Income Security Act of 1974, 29 U. S. C. § 1001 et seq. (1994 ed. and Supp. V), the UMWA and the BCOA negotiated a new agreement to finance benefits. 524 U. S., at 509. The 1974 NBCWA created four trusts that replaced the 1950 fund. These benefit plans quickly developed financial problems. Thus, in 1978 the parties executed another NBCWA. This agreement assigned responsibility for the health care of active and retired employees to the respective coal mine operators who were signatories to the earlier NBCWAs, and left the 1974 Benefit Plan in effect only for those retirees whose former employers were no longer in business. Id., at 510. Nonetheless, financial problems continued to plague the plans “as costs increased and employers who had signed the 1978 NBCWA withdrew from the agreement, either to continue in business with nonunion employees or to exit the coal business altogether.” Id., at 511. “As more and more coal operators abandoned the Benefit Plans, the remaining signatories were forced to absorb the increasing cost of covering retirees left behind by exiting employers.” Ibid. Pursuant to yet another NBCWA, the UMWA and the BCOA in 1988 attempted to remedy the problem, this time by imposing withdrawal liability on NBCWA signatories that seceded from the benefit plans. Despite these efforts, the plans remained in serious financial crisis and, by June 1991, the 120,000 individuals who received health benefits from the funds were in danger of losing their benefits. Frieden, Congress Ponders Fate of Coal Miners’ Fund, 10 Business & Health 65 (Sept. 1992) (hereinafter Frieden). About 60% of these individuals were retired miners and their dependents whose former employers were no longer contributing to the benefit plans. Another 15% worked for employers that were no longer UMWA-represented or were never unionized. Karr, Union, Nonunion Coal Companies Head for Showdown on Retirement Benefits, Wall Street Journal, Mar. 3,1992, p. A6 (hereinafter Karr). These troubles were further aggravated by rising health care costs. Frieden 65. The UMWA threatened to strike if a legislative solution was not reached. Karr A6. And BCOA members, which included those coal firms that were currently signatories to NBCWAs, threatened that they would not renew their commitments to cover retiree costs when their contracts expired.' Ibid. Following another strike and much unrest, Secretary of Labor Elizabeth Dole created the Advisory Commission on United Mine Workers of America Retiree Health Benefits (Coal Commission), which studied the problem and proposed several solutions. Eastern Enterprises, 524 U. S., at 511-512. In particular, the Coal Commission focused on how to finance the health care benefits of orphaned retirees. Congress considered these and other proposals and eventually reconfigured the allocation of health benefits for coal miner retirees by enacting the Coal Act in 1992. Crafting the legislative solution to the crisis, however, was no easy task. The Coal Act was passed amidst a maelstrom of contract negotiations, litigation, strike threats, a Presidential veto of the first version of the bill and threats of a second veto, and high pressure lobbying, not to mention wide disagreements among Members of Congress. The Act “merged the 1950 and 1974 Benefit Plans into a new multiemployer plan called the United Mine Workers of America Combined Benefit Fund (Combined Fund).” Id., at 514; see 26 U. S. C. § 9702(a) (1994 ed.). The Combined Fund “is financed by annual premiums assessed against 'signatory coal operators,’ i. e., coal operators that signed any NBCWA or any other agreement requiring contributions to the 1950 or 1974 Benefits Plans.” Eastern Enterprises, 524 U. S., at 514. Where the signatory is no longer in business, the statute assigns liability for beneficiaries to a defined group of “related persons.” Ibid.; see §§ 9706(a), 9701(c)(2), (7). The Coal Act charged the Commissioner of Social Security with assigning each eligible beneficiary to a signatory operator or its related persons. § 9706(a). The statute identifies specific categories of signatory operators (and their related persons) and requires the Commissioner to assign beneficiaries among these categories in a particular order. Ibid. The Coal Act also ensures that if a beneficiary remains unassigned because no existing company falls within the aforementioned categories, then benefits will be financed by the Combined Fund, either with funds transferred from interest earned on the Department of the Interior’s Abandoned Mine Reclamation Fund or from an additional premium imposed on all assigned signatory operators on a pro rata basis. See §§ 9704(a), (d), 9705(b). •II Respondent Jericol was formed in 1973 as Irdell Mining, Inc. (Irdell). Shortly thereafter, Irdell and another company purchased the coal mining operating assets of Shackle-ford Coal Company, a company that was a signatory to a coal wage agreement while it was in business. Sigmon Coal Co. v. Apfel, 33 F. Supp. 2d 505, 507 (WD Va. 1998). They acquired the right to use the Shackleford name and assumed responsibility for Shackleford’s outstanding contracts, including its collective-bargaining agreement with the UMWA. App. 23-24, 26. “There was no common ownership between Irdell and Shackleford.” 226 F. 3d, at 297. Irdell subsequently changed its name, operating as the Shackleford Coal Company until 1977, when it again changed its name to Jeri-col. The new company was a signatory only to the 1974 NBCWA. Acting pursuant to § 9706(a), between 1993 and 1997, the Commissioner assigned premium responsibility for over 100 retired miners and dependents to Jericol. Of these, 86 were assigned under § 9706(a)(3) because they had worked for Shackleford and the Commissioner determined that as a “successor” or “successor in interest” to the original Shackle-ford, Jericol qualified as a “related person" to Shackleford. The others were assigned because they had actually worked for Jericol. Jericol appealed most of the Commissioner’s determinations, arguing that the assignments were erroneous both because Jericol was not a successor in interest to Shack-leford and because Jericol was not a related person to Shack-leford. See, e. g., Pet. for Cert. 45a~62a. Dissatisfied with the outcome of administrative proceedings, respondent Sigmon Coal-Company, Inc., and Jericol filed suit against the Commissioner, arguing that he wrongfully assigned retirees and dependents to Jericol. 33 F. Supp. 2d, at 506. The District Court concluded that the classification regime of the Coal Act does not provide, directly or indirectly, “for liability to be laid at the door of successors of defunct signatory operators.” Id., at 509. The District Court ordered the Commissioner to withdraw the challenged assignments and enjoined the Commissioner from assigning additional retirees to Jericol on the basis that it is a related person to the original Shackleford. The Commissioner appealed, arguing that a “straight reading” of the statute shows that a successor in interest to a signatory operator qualifies as a related person, thereby permitting the assignment of the retirees and dependents to Jericol. 226 F. 3d, at 303. Alternatively, the Commissioner argued that the District Court’s “reading . . . produces inexplicable, anomalous results that are clearly at odds with congressional intent.” Ibid. “[D]eclin[ing] the Commissioner’s invitation to rewrite the Coal Act,” the United States Court of Appeals for the Fourth Circuit affirmed. Id., at 294. The Court of Appeals concluded that the “statute is clear and unambiguous” and that the court was “bound to read it exactly as it is written.” Ibid. Accordingly, the court held that Jericol was not a “related person” to Shackleford and thus could not be held responsible for Shackleford’s miners. The Court of Appeals rejected the Commissioner’s arguments that this reading either contravenes congressional intent or begets “some fairly odd results.” Id., at 305, 307. Rather, the Court of Appeals found plausible Jericol’s explanation that the plain text of the Act was consistent with Congress’ desire to promote the sale of coal companies and to respond to complaints by coal operators that they were being required to pay benefits for retired miners who had neither worked for them nor maintained any other relationship with them. Id., at 307. A plausible explanation, the court concluded, “is all we need to reject the assertion that the Coal Act’s definition of ‘related person’ is, on its face, absurd.” Id., at 308. Alternatively, the court reasoned, even if the literal text of the statute produced an arguably anomalous result, “we are not simply free to ignore unambiguous language because we can imagine a preferable version.” Ibid. This was not one of those rare cases, the court concluded, where Congress had drafted a statute that “produced an absurdity ‘so gross as to shock the general moral or common sense.’ ” Ibid, (quoting Maryland Dept. of Ed. v. Department of Veterans Affairs, 98 F. 3d 165, 169 (CA4 1996)). We granted certiorari, 532 U. S. 993 (2001), and now affirm. III As in all statutory construction cases, we begin with the language of the statute. The first step “is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U. S. 337, 340 (1997) (citing United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 240 (1989)). The inquiry ceases “if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’” 519 U. S., at 340. With respect to the question presented in this case, this statute is unambiguous. The statutory text instructs that the Coal Act does not permit the Commissioner to assign beneficiaries to the successor in interest of a signatory operator. The statute provides: “For purposes of this chapter, the Commissioner of Social Security shall, before October 1,1993, assign each coal industry retiree who is an eligible beneficiary to a signatory operator which (or any related person with respect to which) remains in business in the following order: “(1) First, to the signatory operator which— “(A) was a signatory to the 1978 coal wage agreement or any subsequent coal wage agreement, and “(B) was the most recent signatory operator to employ the coal industry retiree in the coal industry for at least 2 years. “(2) Second, if the retiree is not assigned under paragraph (1), to the signatory operator which— “(A) was a signatory to the 1978 coal wage agreement or any subsequent coal wage agreement, and “(B) was the most recent signatory operator to employ the coal industry retiree in the coal industry. “(3) Third, if the retiree is not assigned under paragraph (1) or (2), to the signatory operator which employed the coal industry retiree in the coal industry for a longer period of time than any other signatory operator prior to the effective date of the 1978 coal wage agreement.” 26 U. S. C. § 9706(a) (1994 ed.). In this case, the Commissioner determined that because Shackleford is a pre-1978 signatory and employed the disputed miners for over 24 months, assignment must be made under category 3. It then assigned the miners to Jericol after determining that Jericol was a successor in interest to Shackleford and was therefore a “related person” to Shackle-ford. 226 F. 3d, at 298. We disagree with the Commissioner’s reasoning. Because the disputed retirees were employees of Shackleford, the “signatory operator” that sold its assets to Jericol (then-Irdell) in 1973, the Commissioner can only assign them to Jericol if it is a “related person” to Shackleford. The statute provides that “a person shall be considered to be a related person to a signatory operator if that person” falls within one of three categories: “(i) a member of the controlled group of corporations (within the meaning of section 52(a)) which includes such signatory operator; “(ii) a trade or business which is under common control (as determined under section 52(b)) with such signatory operator; or “(iii) any other person who is identified as having a partnership interest or joint venture with a signatory operator in a business within the coal industry, but only if such business employed eligible beneficiaries, except that this clause shall not apply to a person whose only interest is as a limited partner.” § 9701(e)(2). In addition, the last sentence of § 9701(c)(2)(A) states that “[a] related person shall also include a successor in interest of any person described in elause (i), (ii), or (iii).” Although the Commissioner maintains that Jericol is a “related person” to Shackleford, Jericol does not fall within any of the three specified categories defining a “related person.” There is no contention that it was ever a member of a controlled group of corporations including Shackleford, that it was ever a business under common control with Shackleford, or that it ever had a partnership interest or engaged in a joint venture with Shackleford. Therefore, liability for these beneficiaries may attach to Jericol only if it is a successor in interest to an entity described in §§9701(c)(2)(A)(i)-(iii). Because Jericol is a successor in interest only to Shackleford, Jericol will be liable only if a signatory operator itself, here Shackleford, falls within one of these categories. None of the three categories, however, includes the signatory operator itself. Nor should we infer as much, as it is a general principle of statutory construction that when “ ‘Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’” Russello v. United States, 464 U. S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F. 2d 720, 722 (CA5 1972)). Where Congress wanted to provide for successor liability in the Coal Act, it did so explicitly, as demonstrated by other sections in the Act that give the option of attaching liability to “successors” and “successors in interest.” For example, § 9706(b)(2) provides that with respect to beneficiaries of the Combined Fund, “[i]f a person becomes a successor of an assigned operator after the enactment date [of the Coal Act], the assigned operator may transfer the assignment of an eligible beneficiary ... to such successor, and such successor shall be treated as the assigned operator with respect to such eligible beneficiary for purposes of this chapter.” (Emphasis added.) The subsection also provides, however, that “the assigned operator transferring such assignment (and any related person) shall remain the guarantor of the benefits provided to the eligible beneficiary under this chapter.” Ibid. While this provision gives a postenactment successor the option of transferring the assignment and assuming the signatory operator’s liability, it does not address the liability of preenactment successors. Further, §9711 enumerates the continuing obligations of Individual Employer Plans (IEPs) maintained pursuant to a 1978 or subsequent coal wage agreement. Section 9711(g)(1) provides that “[f]or [the] purposes of” IEPs and the 1992 UMWA Benefit Plan, “[t]he term ‘last signatory operator’ shall include a successor in interest of such operator.” Thus, in §9711, Congress gave “last signatory operator” a subsection-specific definition that extends the IEP obligations of a preenactment signatory operator to include its “successors in interest.” Those subsections stand in direct contrast to the provisions implicated here: §§ 9701(c)(1), (2), and (4), which define “signatory operator,” “related persons,” and “last signatory operator,” respectively, “[f]or [the] purposes of this section,” and do not specify that they include or impose liability on the signatory operator’s successor in interest. Despite the unambiguous language of the statute with respect to those entities to whom successor liability attaches, the Commissioner essentially asks that we read into the statute mandatory liability for preenactment successors in interest to signatory operators. This we will not do. “We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.” Russello, supra, at 23. Congress wrote the statute in a manner that provides for liability only for successors in interest to certain signatory operators. If Congress meant to make a preenactment successor in interest like Jericol liable, it could have done so clearly and explicitly. Therefore, because the statute is explicit as to who may be assigned liability for beneficiaries and neither the “related persons” provision nor any other provision states that successors in interest to signatory operators may be assigned liability, the plain language of the statute necessarily precludes the Commissioner from assigning the disputed miners to Jericol. IV The Commissioner admits that the “statute does not state in haec verba that an assignment may be made to a direct successor in interest of the entity that was the signatory operator itself.” Brief for Petitioner 10. Nonetheless, the Commissioner concludes that, in light of the text, structure, and purposes of the Coal Act, such direct successors in interest are included within the liability scheme and should be responsible for a signatory operator’s Combined Fund premiums if the signatory operator itself is defunct and there is no other “related person” still in business. Ibid. We address the Commissioner’s arguments below. A The Commissioner proposes several readings of the statute. First, the Commissioner argues that, because the last sentence of § 9701(c)(2)(A) states that the term “related person” “includefs]” a successor in interest of “any person described in clause (i), (ii), or (iii),” and because these clauses mention the “signatory operator” itself, the signatory operator is “described” in clause (i) by virtue of the express reference. Brief for Petitioner 24. The text of the statute does not support this reading. Where Congress wanted to include successors in interest, it did so clearly and explicitly. See supra, at 452-453. Each category of “related persons” describes a definitive group of persons. § 9701(c)(2). Congress neither created a separate category for signatory operators nor included signatory operators within these categories. It is unlikely that Congress intended to attach liability to a group such as successors in interest to signatory operators through a general clause that was meant to reach persons “described” in one of three explicit categories. Second, the Commissioner argues that, under § 9701(c)(2) (A)(i), a signatory operator is necessarily a member of a controlled group of corporations that includes itself. Brief for Petitioner 24. This subsection provides that “related persons” include “a member of the controlled group of corporations (within the meaning of section 52(a)) which includes such signatory operator.” §.9701(e)(2)(A)(i). Thus, according to the Commissioner’s logic, if corporation A is a member of a controlled group that includes corporations A, B, and C, then a “successor in interest” of a member of the group of corporations A, B, and C includes a successor in interest of corporation A. Ibid. Standing alone, the subsection supports the Commissioner’s argument that a signatory operator is necessarily a member of a group of corporations that includes itself. But this provision cannot be divorced from the clause that begins the related persons provision: “A person shall be considered to be a related person to a signatory operator if that person is — § 9701(c)(2)(A) (emphasis added). Under the Commissioner’s reading, the signatory operator would be related to itself. But just as it makes little sense to say that I am a related person to myself, it makes little sense to say that a signatory operator is a related person to itself. The statute therefore necessarily implies that a “related person” is a separate entity from a signatory operator. Moreover, the Commissioner’s argument only works where the signatory operator is actually part of a “controlled group of corporations.” The Commissioner does not account for the situation where a signatory operator is not part of a controlled group. And because the Commissioner does not contend that Shackleford was part of such a controlled group of corporations, this argument, in any event, has no force here. B The Commissioner also contends that the background, legislative history, and purposes of the Coal Act confirm that Congress intended that liability for a signatory operator’s employees could be placed on the signatory’s direct successor in interest. 1 As support, the Commissioner turns to the floor statements of Senators Malcolm Wallop and Jay Rockefeller, arguing that, because these Senators sponsored the Coal Act, their views are entitled to special weight. In particular, the Commissioner relies on an explanation of the legislation placed into the record by Senator Wallop, making the point that, in addition to the three categories of related persons, “the statute provides that related persons” includes “(iv) in specific instances successors to the collective bargaining agreement obligations of a signatory operator.” 138 Cong. Rec. 34002 (1992). The Commissioner also points to Senator Rockefeller’s statement that “[t]he term ‘signatory operator,’ as defined in new section 9701(c)(1), includes a successor in interest of such operator.” Id., at 34033. Floor statements from two Senators cannot amend the clear and unambiguous language of a statute. We see no reason to give greater weight to the views of two Senators than to the collective votes of both Houses, which are memorialized in the unambiguous statutory text. 2 The Commissioner also argues that construing the related person provision to exclude a signatory’s direct successor in interest would be contrary to Congress’ stated purpose of ensuring that each Combined Fund beneficiary’s health care costs is borne (if possible) by the person with the most direct responsibility for the beneficiary, not by persons that had no connection with the beneficiary or by the public fisc. The Commissioner contends that the Court should choose a construction of the statute that effectuates Congress’ “overriding purpose” of avoiding a recurrence of the orphan retiree catastrophe, which was caused in large part by operators avoiding responsibility for their beneficiaries by changing their corporate structures, selling assets, or ceasing operations. See Brief for Petitioner 30. The Commissioner further suggests that the Court of Appeals’ construction of the statute leads to the counter-intuitive result that a direct successor in interest of a signatory may not be made responsible for a signatory’s beneficiaries — even though such successor liability would be supported by the background principles of successorship— while a more distantly related successor in interest of a corporate affiliate of a signatory operator may be made responsible for the signatory’s beneficiaries. Thus, the Commissioner appears to request that the Court invoke some form of an absurd results test. Id., at 32 (citing United States v. X-Citement Video, Inc., 513 U. S. 64, 70-71 (1994); United States v. Brown, 333 U. S. 18, 27 (1948)). Respondents correctly note that the Court rarely invokes such a test to override unambiguous legislation. Moreover, respondents offer several explanations for why Congress would have purposefully exempted successors in interest of a signatory operator from the “related person” definition. First, respondents argue that coal operators undoubtedly would have opposed legislation that seriously expanded their liability with respect to miners that they had never employed, and that it is hard to imagine that the 1988 signatory companies would have agreed to a compromise that exposed them to open-ended statutory liability linked to decades of buying, selling, and trading property. Brief for Respondents 39-43. Second, respondents speculate that Congress may have concluded that injecting coal industry successor issues into the Commissioner’s task, of allocating liability for more than 100,000 UMWA retirees and dependents would consume a disproportionate share of the agency’s resources, create gridlock in the assignment process, precipitate endless operator challenges under the Coal Act’s administrative review process, and thwart implementation of the program. Id., at 43-45. Finally, respondents suggest that Congress could have been concerned about the adverse impact that successor liability might have had on the valuation and sale of union companies and properties. Id., at 45-46. Where the statutory language is clear and unambiguous, we need neither accept nor reject a particular “plausible” explanation for why Congress would have written a statute that imposes liability on the successors of the companies that fall within the categories of §§ 9701(c)(2)(A)(i) — (iii) but not on successors to the signatory operators themselves. Dissatisfied with the text of the statute, the Commissioner attempts to search for and apply an overarching legislative purpose to each section of the statute. Dissatisfaction, however, is often the cost of legislative compromise. And negotiations surrounding enactment of this bill tell a typical story of legislative battle among interest groups, Congress, and the President. See supra, at 445-446, and nn. 6-7. Indeed, this legislation failed to ease tensions among many of the interested parties. Its delicate crafting reflected a compromise amidst highly interested parties attempting to pull the provisions in different directions. See, e. g., 6 Legislative History 4569-4571. As such, a change in any individual provision could have unraveled the whole. It is quite possible that a bill that assigned liability to successors of signatory operators would not have survived the legislative process. The deals brokered during a Committee markup, on the floor of the two Houses, during a joint House and Senate Conference, or in negotiations with the President, however, are not for us to judge or second-guess. Our role is to interpret the language of the statute enacted by Congress. This statute does not contain conflicting provisions or ambiguous language. Nor does it require a narrowing construction or application of any other canon or interpretative tool. “We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992) (quoting Rubin v. United States, 449 U. S. 424, 430 (1981)) (citations omitted). We will not alter the text in order to satisfy the policy preferences of the Commissioner. These are battles that should be fought among the political branches and the industry. Those parties should not seek to amend the statute by appeal to the Judicial Branch. C The Commissioner’s final argument is that, even if the Coal Act did not affirmatively provide that responsibility for combined fund premiums may be imposed on a signatory’s direct successor, it was reasonable for the Commissioner to conclude that direct successors of a signatory operator should be responsible for the operator’s employees. Congress, however, did not delegate authority to the Commissioner to develop new guidelines or to assign liability in a manner inconsistent with the statute. In the context of an unambiguous statute, we need not contemplate deferring to the agency’s interpretation. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. A signatory operator is a “coal operatofr] that signed any [National Bituminous Coal Wage Agreement] or any other agreement requiring contributions to the 1950 or 1974 Benefit Plans.” Eastern Enterprises v. Apfel, 524 U. S. 498, 514 (1998); see also 26 U. S. C. § 9701(c)(1) (1994 ed.) (“The term ‘signatory operator’ means a person which is or was a signatory to a coal wage agreement”). In Eastern Enterprises, 524 U. S., at 504-514, we discussed at great length the history of negotiations between the coal industry and the UMWA over the provision of employee benefits to coal miners. We provide only a brief summary here. These trusts included the UMWA 1950 Benefit Plan and Trust (1950 Benefit Plan), which provided nonpension benefits including medical benefits for miners who retired before January 1, 1976, and the UMWA 1974 Benefit Plan and Trust (1974 Benefit Plan), which provided such benefits for active miners and those who retired after 1975. Id., at 509. The term “orphan retirees” encompassed both “true orphans,” whose former employers were no longer in business, and “reachback orphans,” whose former employers were still in business but no longer signatories to a coal wage agreement and possibly no longer in the coal business. House Committee on Ways and Means, Development and Implementation of the Coal Industry Retiree Health Benefit Act of 1992,104th Cong., 1st Sess., 1 (Comm. Print 1995) (hereinafter Development). See, e. g., McGlothlin v. Connors, 142 F. R. D. 626 (WD Va. 1992). This lawsuit involved the beneficiaries of the 1950 Benefit Plan and the 1974 Benefit Plan, the trustees, and the BCOA. The District Court Judge encouraged them to “zealously seek passage of a bill in Congress to permit the transfer of other funds now in the possession of the Trustees, which are in excess of any future projected needs, to finance the Benefit Trusts.” Id., at 646. Under the original proposal, introduced by Senator Jay Rockefeller, benefits would have been financed through taxes on the entire coal industry and premiums collected from reachback companies that were considered responsible for specific orphans. Development 12. With support from both the UMWA and the BCOA, but not the Private Benefits Alliance (PBA), a group of nonunion companies, Congress originally passed this bill as part of a comprehensive tax package. See Karr A6. President Bush, however, vetoed the entire package, in part because of the coal tax provisions Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". ARNETTE et al. v. UNITED STATES. No. 5496. Circuit Court of Appeals, Fourth Circuit. Nov. 11, 1946. C. T. McDonald, of Florence, S. C., for appellants. Henry H. Edens, Asst. U. S. Atty., of Columbia, S. C. (Claud N. Sapp, U. S. Atty., of Columbia, S. C., and Louis M. Shimel, Asst. U. S. Atty., of Charleston, S. C., on the brief), for appellee. Before PARKER, SOPER, and DOBIE, Circuit Judges. PER CURIAM. This is an appeal from a conviction on an indictment charging the operation of a liquor distillery in violation of the provisions of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 2810 et seq. The exceptions relate to the refusal of the trial judge to allow more than 10 peremptory challenges to all of the defendants charged, to the ruling which permitted the United States Attorney to propound leading questions to an accomplice introduced by him as a witness and to the ruling which permitted cross examination of one of the defendants as to other violations of the liquor laws of which he had been convicted. Appellants also complain that their connection with the crime charged was established by co-defendants, whose testimony was subject to the suspicion that the law attaches to that of self-confessed accomplices. We find no merit in any of these contentions and no point of sufficient importance to justify discussion in an opinion. The cross examination as to prior conviction was allowed to take a somewhat wider range than would ordinarily be justified, but the defendant admitted the conviction and we cannot see that his case was in any way prejudiced by the cross examination, the scope of which was, in any event, a matter resting very largely in the sound discretion of the trial judge. Counsel for appellants points out that at one point the judge refused to permit him to ask a leading question of one of the defendants who had been introduced as a witness by the prosecution. This was doubtless an inadvertence, since it is no ground for excluding leading questions on cross examination that the witness is favorable to the side of the examiner. It is clear from the record, however, that no prejudice resulted to the defendants from this ruling. The judgment appealed from will be affirmed. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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 of America, ex rel. Vito RIZZI, Petitioner-Appellant, v. Hon. Harold W. FOLLETTE (Successor to Hon. Edward M. Fay), Warden, Green Haven Prison, Stormville, New York, Respondent-Appellee. No. 39, Docket 29689. United States Court of Appeals Second Circuit. Argued Sept. 21, 1966. Decided Oct. 24, 1966. Anthony F. Marra, Joshua N. Koplovitz, New York City, for petitioner-appellant. Brenda Soloff, Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen. of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., for respondent-appellee. Before LUMBARD, Chief Judge, WATERMAN and ANDERSON, Circuit Judges. WATERMAN, Circuit Judge. Appellant was convicted of murder in the first degree in the New York County Court of General Sessions in 1945 and was sentenced to life imprisonment. The conviction was affirmed by the Appellate Division, First Department, 270 App. Div. 832, 61 N.Y.S.2d 607 (1946) and the Court of Appeals, 297 N.Y. 874, 79 N.E. 2d 274 (1948). In 1960 Rizzi brought a coram nobis proceeding in General Sessions on the same grounds alleged here. The petition was denied without a hearing, 26 Misc.2d 977, 208 N.Y.S.2d 400 (1960), the Appellate Division, First Department, affirmed, 18 App.Div.2d 785, 236 N.Y.S.2d 939 (1963), and leave to appeal to the New York Court of Appeals was denied by Judge Fuld of that court. The Supreme Court denied certiorari sub nom. Rizzi v. LaVallee, 375 U.S. 849, 84 S.Ct. 104, 11 L.Ed.2d 76 (1963). Appellant then petitioned the court below for the issuance of a writ of habeas corpus; Judge Cannella carefully examined the trial record and denied the petition without a hearing. Rizzi appeals. We affirm the order below. Rizzi seeks relief from his 1945 conviction on two grounds. He claims that the trial judge improperly refused to appoint a commission to determine whether he was capable of understanding the proceedings against him and of making his defense to the capital crime with which he was charged, and also that the prosecutor suppressed material facts relating to his competence. It appears from the uncontroverted record that on the third day of Rizzi’s trial his counsel, out of the presence of the jury, moved for the appointment of a commission to examine whether Rizzi was competent to continue with the trial. The grounds for the motion were based on an incident which occurred a few minutes before the motion was made. During a trial recess one of Rizzi’s counsel had occasion to go to the cell block where Rizzi was being confined. He observed Rizzi reading a newspaper, smiling at some pictures in the news, and “totally oblivious to what he was facing in [the] courtroom.” Astonished by this lack of concern, counsel asked Rizzi if he had ever been confined in an institution and Rizzi replied that he had been confined in Letchworth Village (an institution for mental defectives) from the time he was ten years old until he reached his fourteenth or fifteenth year, and that the authorities there had told him that he had a mental age then of three. In disposing of the motion the state trial judge noted that Rizzi was 34 years old, that he had served in the army and that he had been discharged for physical, not mental, disability. He found that the childhood confinement in a mental institution was not, of itself, sufficient to warrant appointment of a commission to examine Rizzi. He did, however, arrange to have Rizzi examined by one Dr. Lichtenstein, a psychiatrist and medical assistant to the District Attorney of New York County. Dr. Lichtenstein found Rizzi to be of a “high grade moron” type. His report to the court indicated that Rizzi was competent to stand trial. No other evidence indicating Rizzi’s lack of competence was presented to the court and the motion for the appointment of a commission was never renewed. No plea that Rizzi was insane was ever entered on Rizzi’s behalf. Section 658 of the New York Code of Criminal Procedure provides: § 658 Court order for examination as to sanity of defendant. If at any time before final judgment it shall appear to the court having jurisdiction of the person of a defendant indicted for a felony or a misdemeanor that there is reasonable ground for believing that such defendant is in such state of idiocy, imbecility or insanity that he is incapable of understanding the charge, indictment or proceedings or of making his defense, or if the defendant makes a plea of insanity to the indictment, instead of proceeding with the trial, the court, upon its own motion, or that of the district attorney or the defendant, may in its discretion order such defendant to be examined to determine the question of his sanity. Appellant claims the failure to appoint a commission under § 658 deprived him of due process of law under the Fourteenth Amendment. Conviction of a defendant while he is legally incompetent does indeed violate due process. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956). As the Supreme Court held in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), state procedures must adequately protect this right. On the showing made at Rizzi’s trial, however, we do not believe that due process required the appointment of a commission under § 658. There is a marked distinction between the facts tending to show incompetency in Pate v. Robinson, supra, and in the instant case. In Robinson, there was the uncontradicted testimony of four witnesses that Robinson had had a long history of disturbed behavior which had extended from his childhood to within a year or so of his trial, and his trial defense was based on his insanity. In this case, however, the fact that Rizzi during a portion of his minority had been committed to a mental institution and had been discharged therefrom about twenty years before the trial, and the fact that on the third trial day he momentarily seemed to one of his attorneys to be “totally oblivious to what he was facing,” do not appear sufficient to require, as a matter of due process, that the trial judge at that stage of the trial should have appointed a commission to determine Rizzi’s competency to continue. Also, the record indicates that the trial court invited the defense to present further evidence if they wished to pursue the point, and that none was presented. We agree with the federal judge below that there was no violation of appellant’s right to due process under the Fourteenth Amendment. Appellant’s other claim, that the failure of the prosecutor to inform his counsel of his confinement in Letch-worth was a suppression of evidence, deserves but little attention. Although commitments to public institutions may be matters of public record, there is no evidence that the prosecutor who presented the case against Rizzi was actually aware of Rizzi’s juvenile commitment. In the absence of such knowledge there could be no bad faith suppression. In any event, the defense counsel learned about the commitment during the trial in time to make use of it to the defendant’s advantage. Affirmed. Question: What 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_caseorigin	094	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. OHIO BUREAU OF EMPLOYMENT SERVICES et al. v. HODORY No. 75-1707. Argued February 28, 1977 Decided May 31, 1977 Richard A. Szilagyi, Assistant Attorney General of Ohio, argued the cause for appellants. With him on the briefs was William J. Brown, Attorney General. T. Patrick Lordeon argued the cause for appellee. With him on the brief were Robert M. Clyde, Jr., and Fred A. Culver Briefs of amici curiae urging reversal were filed by Gerard C. Smetana, Jerry Kronenberg, Julian D. Schreiber, Lawrence B. Kraus, and Richard O’Brecht for the Chamber of Commerce of the United States; and by Frank C. Manak for the United States Steel Corp. J. Albert Woll and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance. Walter J. Mackey filed a brief for the Republic Steel Corp. as amicus curiae. Mr. Justice Blackmun delivered the opinion of the Court. This case presents a challenge to Ohio Rev. Code Ann. § 4141.29 (D) (1) (a) (1973). That statute, at the times relevant to this suit, imposed a disqualification for unemployment benefits when the claimant’s unemployment was “due to a labor dispute other than a lockout at any factory . . . owned or operated by the employer by which he is or was last employed.” The challenge is based on the Supremacy Clause and on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The case also raises questions concerning abstention. I In November 1974 plaintiff-appellee, Leonard Paul Hodory, was employed as a millwright apprentice with United States Steel Corporation (USS) at its works in Youngstown, Ohio. The United Mine Workers at that time were out on strike at coal mines owned by USS and by Republic Steel Corporation throughout the country. These company-owned mines supplied the fuel used in the operation of manufacturing facilities of USS and Republic. As a result of the strike, the fuel supply at the Youngstown plant was reduced. The plant eventually was shut down, and appellee was furloughed on November 12, 1974. Hodory applied to appellant Ohio Bureau of Employment Services for unemployment benefits. On January 3, 1975, he was notified by the Bureau that his claim was disallowed under Ohio Rev. Code Ann. § 4141.29 (D) (1) (a) (1973). That statute then provided that a worker may not receive unemployment benefits if “[h]is unemployment was due to a labor dispute other than a lockout at any factory, establishment, or other premises located in this or any other state and owned or operated by the employer by which he is or was last employed; and for so long as his unemployment is due to such labor dispute.” The written notification to appellee recited: “A labor dispute started at coal mines owned and operated by U. S. Steel Corporation and claimant is unemployed because of this labor dispute.” App. i. Other notifications to Hodory for subsequent unemployment weeks contained similar recitals. Id., at ii and iii. Appellee promptly filed a request for reconsideration. In accord with the provisions of Ohio Rev. Code Ann. § 4141.28 (G) (1973), his request, along with a number of others, was referred on March 7 to the Board of Review. Meanwhile, on January 27, Hodory filed a complaint in the United States District Court for the Northern District of Ohio against the Bureau and its director, Albert G. Giles. The complaint was based on 42 U. S. C. § 1983 and sought declaratory and injunctive relief on behalf of appellee and “all others similarly situated” who had been or in the future would be denied benefits under § 4141.29 (D) (1) (a). Record, Doc. 3, pp. 1 and 3. Hodory asserted, among other things, that the Ohio statute was in conflict with §§ 303 (a)(1) and (3) of the Social Security Act of 1935, as amended, 42 U. S. C. §§ 503 (a)(1) and (3), and that the statute as applied was irrational and had no valid public purpose, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The gravamen of Hodory’s complaint was the assertion that the State may not deny benefits to those who, like him, are unemployed under circumstances where the unemployment is “not the fault of the employee.” A three-judge court was requested. Appellants in their answer asserted, among other things, that Hodory had failed to exhaust his state administrative remedies. A three-judge court was convened. The case was tried on the pleadings and interrogatories. In its opinion filed March 5, 1976, 408 F. Supp. 1016, that court concluded that abstention was not required and would not be proper; that the action was properly maintained as a class action; and that the appellants had failed to demonstrate a rational and legitimate interest in discriminating against “individuals who were unemployed through no fault of their own and neither participated in nor benefited from the labor dispute involving another union and their employer.” Id., at 1022. The court then held that §4141.29 (D)(1)(a), as applied to Hodory and the class members, violated the Equal Protection and Due Process Clauses. The Bureau and its director took a direct appeal here pursuant to 28 U. S. C. § 1253. In their jurisdictional statement appellants argued only that (1) the “labor dispute” disqualification provision is not unconstitutional as applied to appellee and the class; (2) the disqualification provision is not in conflict with the Social Security Act; (3) a state system of unemployment compensation may predicate disqualification upon any reasonable basis; and (4) USS and Republic, as employers of the class members, were denied substantive and procedural due process by the failure of the District Court to order them joined as parties defendant. Appellants made no claim therein based on abstention. We noted probable jurisdiction. 429 U. S. 814 (1976). A claim that the District Court should have abstained from deciding the case has been raised, however, in the brief amicus curiae filed by the AFL-CIO. A like claim is at least suggested. by Republic Steel. Brief as Amicus Curiae 16-17. We feel those claims merit consideration. We follow the proper course for federal courts by considering first whether abstention is required, then whether there is a statutory ground of resolution, and finally, only if the challenge persists, whether the statute violates the Constitution. II Abstention There are, of course, two primary types of federal abstention. The first, usually referred to as Pullman abstention, involves an inquiry focused on the possibility that the state courts may interpret a challenged state statute so as to eliminate, or at least to alter materially, the constitutional question presented. Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941). See Bellotti v. Baird, 428 U. S. 132 (1976). The second type is Younger abstention, in which the court is primarily concerned, in an equitable setting, with considerations of comity and federalism, both as they relate to the State’s interest in pursuing an ongoing state proceeding, and as they involve the ability of the state courts to consider federal constitutional claims in that context. Younger v. Harris, 401 U. S. 37 (1971). See Huffman v. Pursue, Ltd., 420 U. S. 592 (1975); Juidice v. Vail, 430 U. S. 327 (1977); Trainor v. Hernandez, ante, at 448 (concurring opinion). A. In the present case, appellants, who in effect are the State of Ohio, argued before the District Court that appellee was free to pursue his pending administrative appeal and have his constitutional claim adjudicated in the Court of Common Pleas, and that principles of comity therefore required abstention. Although appellants in their written submission to that court cited Pullman, the argument was clearly to the effect that Younger abstention should apply. The District Court held that abstention was unwarranted. It first asserted that in Gibson v. Berryhill, 411 U. S. 564 (1973), this Court “stated specifically that administrative remedies need not be exhausted where the federal court plaintiff states a good cause of action under 42 U. S. C. § 1983.” 408 F. Supp., at 1019. The court then stated that § 4141.29 (D)(1)(a), “on its face, would appear to except the plaintiff from unemployment benefits for the period he was laid off due to coal miners' strike,” and that “the Employment Bureau has denied benefits to plaintiff . . . solely on the basis of the challenged labor dispute disqualification.” 408 F. Supp., at 1019. The court held that exhaustion of administrative remedies would be futile because the administrative appeal process would not permit a challenge to the constitutionality of the statute, and the Ohio courts had held the statute to be constitutional. Id., at 1019, and n. 1. Although the court observed that Huffman v. Pursue, Ltd., supra, broadened the Younger doctrine “to include a prohibition against federal court interference with certain ongoing civil proceedings in the state courts,” 408 F. Supp., at 1019-1020, the court held that Huffman “was limited to‘the enjoining of ongoing state-initiated judicial proceedings,” 408 F. Supp., at 1020 (emphasis in original), and did not apply to a challenge to administrative actions. Finally, the court held that abstention, along the Pullman line, “would not be proper in this case” because the challenged statute is not an ambiguous one “involving unsettled questions of state law which could be rendered constitutionally inoffensive by a limiting construction in the state courts.” 408 F. Supp., at 1020. The court concluded that it would be improper to require the appellee “to undertake three administrative appeals” before he could challenge the statute in state court “where, moreover, the issue as to the constitutionality of the labor dispute disqualification has apparently been settled.” Ibid. In this Court, as has been noted, appellants have not argued that Younger requires a remand with directions to the District Court to abstain, and at oral argument they resisted the suggestion of such a remand. Tr. of Oral Arg. 9-10. Instead, it is amicus Republic Steel that has made the suggestion. Younger v. Harris reflects “a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.” 401 U. S., at 44. See Huffman v. Pursue, Ltd., 420 U. S., at 604; Juidice v. Vail, 430 U. S., at 334; Trainor v. Hernandez, ante, at 441-443, 445-446, and id., at 448 (concurring opinion). Younger and these cited cases express equitable principles of comity and federalism. They are designed to allow the State an opportunity to “set its own house in order” when the federal issue is already before a state tribunal. It may not be argued, however, that a federal court is compelled to abstain in every such situation. If the State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State’s own system. In the present case, Ohio either believes that the District Court was correct in its analysis of abstention or, faced with the prospect of lengthy administrative appeals followed by equally protracted state judicial proceedings, now has concluded to submit the constitutional issue to this Court for immediate resolution. In either event, under these circumstances Younger principles of equity and comity do not require this Court to refuse Ohio the immediate adjudication it seeks. B. Amicus ABL-CIO argues that Pullman abstention is proper here. The basis for the claimed applicability of Pullman is found in the facts that there were other steelworkers, at other Ohio facilities, laid off at the same time as appellee and assertedly for the same reason, and yet they were awarded unemployment compensation by the Bureau. See Brief for Appellants 3. Benefits were granted on the ground that the company-owned coal mines did not supply a sufficient amount of fuel to the plants there involved to effect a plant shutdown. Amicus argues that if appellee were to pursue his administrative appeal, he might be granted benefits on the same ground. The problems with this approach, however, are several. First, appellee did not press any such claim before the Bureau or on administrative appeal, Tr. of Oral Arg. 9, and there is no indication that a claimant may be awarded benefits on the basis of a claim not made to the Bureau or Board of Review. Second, there is no indication that the plant at which appellee worked is situated similarly to the plants as to which benefits were granted. The Bureau apparently applied a test under which the closing of a plant was held not to be “due to” the labor dispute if the plant received less than 50% of its coal from the employer’s struck mines. Id., at 7-8. There has been no claim or showing that the 50% test is unreasonable or improper and there has been no claim that appellee’s plant was not dependent on the struck mines for more than 50% of its coal. What amicus suggests is that the court abstain on the basis of speculation that the unchallenged facts may not be as the Bureau obviously saw them, or that the Board might overturn an unchallenged standard of causation, or that the Board might even come up with a hitherto unknown and unclaimed reason for awarding benefits to appellee, such as a theory that because the coal strike was nationwide it was not “ ‘at the employers’ mines.’ ” See Brief for AFL-CIO as Amicus Curiae 8. None of these suggestions is based on fact or solid legal precedent. As has been noted, Pullman abstention is an equitable doctrine that comes into play when it appears that abstention may eliminate or materially alter the constitutional issue presented. There is a point, however, at which the possible benefits of abstention become too speculative to justify or require avoidance of the question presented. That point has been reached and surpassed here. We conclude that Pullman abstention is not appropriate. Ill Pre-emption Appellee argues that the Ohio statute is in conflict with, or pre-empted by, certain provisions of the Social Security Act, 42 U. S. C. § 501 et seq., and the Federal Unemployment Tax Act, 26 U. S. C. §§ 3301-3311. This argument was raised in the District Court but was not resolved there. It would have been preferable, of course, for that court to have dealt with this statutory issue first. See Hagans v. Lavine, 415 U. S. 528, 543-545 (1974). The issue, however, entails no findings of fact and has been fully briefed here by both parties. We therefore perceive no need to remand to the District Court, and we proceed to decide the question. Appellee points to two statutes as the source of his claimed federal requirement that he be paid unemployment compensation. The first is 42 U. S. C. § 503 (a)(1), to the effect that the Secretary of Labor shall make no certification for payment of federal funds to state unemployment compensation programs unless state law provides for such methods of administration “as are found by the Secretary of Labor to be reasonably calculated to insure full payment of unemployment compensation when due.” Appellee’s argument necessarily is that payment is “due” him. Appellee cites only a single page of the voluminous legislative history of the Social Security Act in support of his assertion that the Act forbids disqualification of persons laid off due to a labor dispute at a related plant. That page contains the sentence: “To serve its purposes, unemployment compensation must be paid only to workers involuntarily unemployed.” Report of the Committee on Economic Security, as reprinted in Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 1311, 1328 (1935). The cited Report was one to the President of the United States and became the cornerstone of the Social Security Act. On its face, the quoted sentence may be said to give some support to appellee’s claim that “involuntariness” was intended to be the key to eligibility. A reading of the entire Report and consideration of the sentence in context, however, show that Congress did not intend to require that the States give coverage to every person involuntarily unemployed. The Report recognized that federal definition of the scope of coverage would probably prove easier to administer than individualized state plans, id., at 1323, but it nonetheless recommended the form of unemployment compensation scheme that exists today, namely, federal involvement primarily through tax incentives to encourage state-run programs. The Report’s section entitled “Outline of Federal Act” concludes with the statement: “The plan for unemployment compensation that we suggest contemplates that the States shall have broad freedom to set up the type of unemployment compensation they wish. We believe that all matters in which uniformity is not absolutely essential should be left to the States. The Federal Government, however, should assist the States in setting up their administrations and in the solution of the problems they will encounter.” Id., at 1326. See also id., at 1314. Following this statement, the Report contains a section entitled “Suggestions for State Legislation.” It reads: “Benefits. — The States should have freedom in determining their own waiting periods, benefit rates, maximum-benefit periods, etc. We suggest caution lest they insert benefit provisions in excess of collections in their laws. To arouse hopes of benefits which cannot be fulfilled is invariably bad social and governmental policy.” Id., at 1327. This statement reflects two things. First, it reflects the understanding that unemployment compensation schemes generally do not grant full benefits immediately and indefinitely, even to those involuntarily unemployed. The States were expected to create waiting periods, benefit rates, and maximum-benefit periods, so as to bring the amount paid out in line with receipts. Second, the statement reflects concern that the States might grant eligibility greater than their funds could handle. By way of advice on particular statutes, the Report’s “Suggestions” contains the following: “Willingness-to-work test. — To serve its purposes, unemployment compensation must be paid only to workers involuntarily unemployed. The employees compensated must be both able and willing to work and must be denied benefits if they refuse to accept other suitable employment. Workers, however, should not be required to accept positions with wage, hour, or working conditions below the usual standard for the occupation or the particular region, or outside of the State, or where their rights of self-organization and collective bargaining would be interfered with.” Id., at 1328. c This, as has been noted, is the origin of appellee’s argument that all persons involuntarily unemployed were intended to be compensated. Placed in context, however, it is clear that the single sentence is only an expression of caution that funds should not be dispensed too freely, and is not a direction that funds must be dispensed. Appellee’s claim of support in the legislative history accordingly fails. Indeed, that history shows, rather, that Congress did not intend to restrict the ability of the States to legislate with respect to persons in appellee’s position. See also H. R. Rep. No. 615, 74th Cong., 1st Sess., 8-9 (1935); S. Rep. No. 628, 74th Cong., 1st Sess., 12-13 (1935). Appellee would find support in the “labor dispute disqualification” contained in § 5 (d) of draft bills issued by the Social Security Board shortly after passage of the Social Security Act. Social Security Board, Draft Bills for State Unemployment Compensation of Pooled Fund and Employer Reserve Account Types (1936). Appellee argues that this proposed section evinced an intention that “innocent” persons not be disqualified from unemployment compensation. The Social Security Board, however, on the cover page of the draft bills booklet explicitly stated: “These drafts are merely suggestive .... Therefore, they cannot properly be termed ‘model’ bills or even recommended bills. This is in keeping with the policy of the Social Security Board of recognizing that it is the final responsibility and the right of each state to determine for itself just what type of legislation it desires and how it shall be drafted.” We therefore are most reluctant to read implications of the draft bills into the Social Security Act. More important, however, appellee’s argument fails on its face. The draft bills themselves denied “innocents” certain compensation. They did so not only in the various provisions as to minimum time spent at the job, waiting periods, and maximum benefits, but also in the labor dispute disqualification itself. The labor dispute provisions are triggered by a dispute at the same “establishment” and they disqualify any member of a “grade or class of workers” any of whose members were interested in the dispute. As the commentary and case law in jurisdictions that adopted versions of the draft bills immediately recognized, this division could serve to disqualify even a person who actively opposed a. strike and could extend to persons laid off because of a dispute at another plant owned by the same employer. The law Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_numappel	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Marco Antonio RODRIGUEZ-RODRIGUEZ, Defendant-Appellant. No. 84-5035. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 7, 1984. Decided Sept. 17, 1984. Kathryn D. Freeman, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Kathryn D. Freeman, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiffappellee. Larry Ainbinder, Federal Defenders of San Diego, San Diego, Cal., for defendant-appellant. OPINION Appeal from the United States District Court for the Southern District of California. Before ELY and GOODWIN, Circuit Judges, and RYMER, District Judge. PER CURIAM. This appeal from a misdemeanor conviction (8 U.S.C. § 1325) challenges the denial of a jury trial and the failure to give Miranda warnings before asking an alien about his immigration status. We affirm. The alleged collateral consequences that may flow from future illegal behavior do not convert the border-crossing misdemeanor into a “serious offense” for which the Sixth Amendment requires a trial by jury. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). The appellant relies on United States v. Craner, 652 F.2d 23 (9th Cir.1981), for the proposition that the collateral consequences of a misdemeanor conviction make the case a “serious offense” and therefore mandate a jury trial. The Craner court looked to state law and found that the probable loss of a driver’s license made drunk driving a “serious offense.” The Craner court also looked to state law and found that only five of the United States deny a jury trial in such cases if demanded by the defendant. We held that the administrative burden on the federal courts would not justify denial of trial by jury to those rare federal defendants who are charged with driving on federal reservations while under the influence of intoxicants. Craner does not create a per se rule that the collateral consequences of a misdemeanor conviction automatically create a constitutional right to trial by jury. We recognize the gravity of the collateral consequences of this misdemeanor conviction if Rodriguez should choose to make another illegal border crossing. But the collateral consequences of future crime are easily distinguishable from the collateral consequences in Craner which were the probable result of the charged offense. In United States v. Arbo, 691 F.2d 862 (9th Cir.1982), we held that the penalty is ordinarily the dividing line between “petty” offenses and “serious” offenses for Sixth Amendment purposes. We noted that in the absence of collateral consequences of the kind illustrated by Craner, the bright-line rule looks to the maximum authorized penalty as the guideline. See e.g., Duncan v. Louisiana, 391 U.S. 145, 160, 88 S.Ct. 1444, 1453, 20 L.Ed.2d 491 (1968). The inquiry in the San Diego railway station about immigration status did not, in the circumstances of this case, approach the level of custodial interrogation contemplated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Berkemer v. McCarty, — U.S. —, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Affirmed. The Honorable Pamela A. Rymer, United States District Judge for the Central District of California, sitting by designation. Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_majvotes	3	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. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 66, A, B & C, AFL-CIO. No. 15202. United States Court of Appeals Third Circuit. Argued Sept. 21, 1965. Decided March 9, 1966. Michael N. Sohn, N. L. R. B., Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Melvin J. Welles, Attorney, N. L. R. B., on the brief), for petitioner. Joseph Mark Maurizi, Pittsburgh, Pa. (Gatz, Cohen, O’Brien & Maurizi, Pittsburgh, Pa., on the brief), for respondent. Before McLAUGHLIN, HASTIE and FREEDMAN, Circuit Judges. FREEDMAN, Circuit Judge. The National Labor Relations Board, pursuant to § 10(e) of the National Labor Relations Act, as amended (29 U.S.C. § 160(e)), petitions for the summary enforcement of its order issued against the respondent, Local 66. The question presented to us is whether a respondent charged with an unfair labor practice who appeared and participated in the proceedings before the Trial Examiner but filed no exceptions to his report may now defend on the ground that the decision of the Trial Examiner, which automatically became the decision of the Board, was erroneous. The General Counsel of the Board alleged in his complaint that respondent, Local 66, and International Association of Bridge Structural and Ornamental Iron Workers, Local 772, AFL-CIO, had committed an unfair labor practice by engaging in a secondary boycott condemned by § 8(b) (4) (i) (B) and (ii) (B) of the Act (29 U.S.C. § 158), in picketing a secondary employer, West Penn Power Company, with an object of forcing or requiring it to cease doing business with a primary employer, Irvin-McKelvy Company. The Complaint was heard before the Board’s Trial Examiner, pursuant to due notice. Respondent was represented by counsel and was an active participant in the hearing. On October 28, 1964, the Trial Examiner filed his decision containing findings of fact, conclusions of law and a recommended order. He found that respondent’s primary dispute was with Irvin-McKelvy, whose employees were not members of the unions, that respondents had picketed West Penn with an object of forcing or requiring it to cease doing business with Irvin-McKelvy, and that they had therefore engaged in “secondary picketing” or a “secondary boycott”. The Trial Examiner considered and explicitly rejected respondent’s defense that West Penn and Irvin-Mc-Kelvy were allies. He found that the only evidence of an alliance between them was a provision in their contract for the installation of equipment by Irvin-Mc-Kelvy at West Penn’s power station to the effect that Irvin-McKelvy’s employees used on the job should be subject to the approval of West Penn. He found that this did not alter Irvin-McKelvy’s status as an independent contractor or make it an ally of West Penn, or its men the employees of West Penn. Local 772 specifically agreed to comply with the Trial Examiner’s decision. Respondent, Local 66, filed no exceptions to the decision, and the Board therefore on November 26, 1964, automatically adopted the findings, conclusion and recommended order of the Trial Examiner with respect to it, pursuant to § 10(c) of the Act (29 U.S.C. § 160(c)) and the Board’s Rules and Regulations. Respondent now urges us to refuse enforcement of the Board’s order on the ground that it was erroneous to hold that West Penn did not, by virtue of the contract, become an ally of Irvin-McKelvy and therefore a primary employer. The Board maintains that respondent has lost the right to persist in this claim by failing to except to the Trial Examiner’s decision. Section 10 of the Administrative Procedure Act (5 U.S.C. § 1009) provides for judicial review of all questions of law relevant to agency decisions except where precluded by statute. We are brought, therefore, to the provisions of the National Labor Relations Act. Section 10(e) of the Act, which deals with judicial enforcement of Board decisions, provides: “No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” (29 U.S.C. § 160(e)). In 1947 the Taft-Hartley Act added the following provision to § 10(c): “In case the evidence is presented before a member of the Board, or before an examiner or examiners thereof, such member, or such examiner or examiners as the case may be, shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the Board, and if no exceptions are filed within twenty days after service thereof upon such parties, or within such further period as the Board may authorize, such recommended order shall become the order of the Board and become effective as therein prescribed.” (29 U.S.C. § 160 (c)). The Board’s Rules and Regulations, promulgated under power expressly granted it by Congress make detailed requirements for the filing of exceptions to the Trial Examiner’s decision and expressly provide that if exceptions are not filed, the findings, conclusions and recommendations of the Trial Examiner shall automatically become the findings, conclusions and order of the Board and all objections and exceptions thereto shall be deemed waived for all purposes. The Supreme Court has consistently held, both before and after the TaftHartley Act, that subsection (e) prohibits the raising in the courts of objections not made to the Board unless relief may be granted under the statutory exception of excuse because of extraordinary circumstances, or because the Board has patently travelled outside the orbit of its authority. Marshall Field & Co. v. N. L. R. B., 318 U.S. 253, 256, 63 S.Ct. 585, 586, 87 L.Ed. 744 (1943); May Department Stores Co. v. N. L. R. B., 326 U.S. 376, 386-387, 66 S.Ct. 203, 90 L.Ed. 145 (1945); N. L. R. B. v. Cheney California Lumber Co., 327 U.S. 385, 388-389, 66 S.Ct. 553, 90 L.Ed. 739 (1946); N. L. R. B. v. Seven-Up Bottling Co., 344 U.S. 344, 350, 73 S.Ct. 287, 290, 97 L.Ed. 377 (1953); N. L. R. B. v. District 50, United Mine Workers of America, 355 U. S. 453, 463-464, 78 S.Ct. 386, 2 L.Ed.2d 401 (1958); N. L. R. B. v. Ochoa Fertilizer Corp., 368 U.S. 318, 82 S.Ct. 344, 7 L.Ed.2d 312 (1961). In Marshall Field, the Court declared that § 10(e) expresses “the salutary policy * * * of affording the Board opportunity to consider on the merits questions to be urged upon review of its order.” The purpose of this policy is to give full recognition to the “function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess.” Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). Respondent does not claim that it is excused from its failure to file exceptions to the Trial Examiner’s report because of extraordinary circumstances, or that the Board’s order is patently outside the scope of its authority. It claims that the Supreme Court decisions are inapplicable because it has satisfied the requirement of § 10(e) of the Act in urging its contention before an “agent” of the Board, i. e,, the Trial Examiner. The decisions cited are indeed in strictness distinguishable on close examination, for in them the issue proposed to the courts was not raised at any stage of the administrative proceedings. Moreover, respondent’s contention is not without its literal justification. In a general sense, a Trial Examiner may well be described as an “agent” of the Board. We must, however, look to the dynamic purpose which the statute seeks to effectuate in this area. It must not be permitted to be distorted by the chance repetition of words which in a different setting might have a broader meaning. See Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 489, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The history of subsections (c) and (e) in the context of the plan for the functions of the Trial Examiner and the Board makes it clear that the Trial Examiner cannot be considered the “agent” of the Board in regard to objections that must be made to it. Under the Board’s original plan of operation, developed under the Wagner Act, the Trial Examiner filed an intermediate report which was merely advisory, much like an inter-office memorandum to the Board, which independently decided the case de novo after it had its own staff review the report and the underlying record. While as an administrative matter the Trial Examiner’s intermediate report was made available to the parties so as to enable them to present their views to the Board, the Board was required to decide the case whether exceptions were filed or not. This procedure meant that an issue raised before the Trial Examiner inevitably was also presented to the Board. The Trial Examiner might well be described under the Wagner Act as an “agent” for purposes of the pertinent sentence of subsection (e), since he assembled the evidence and the contentions of the parties and submitted it to the Board with his recommendation. See N. L. R. B. v. Botany Worsted Mills, 133 F.2d 876, 882 (3rd Cir. 1943), cert. denied, 319 U.S. 751, 63 S.Ct. 1164, 87 L.Ed. 1705 (1943). See generally, Jaffe, Administrative Law (1961), pp. 717-21. This is the reason that the decisions under the Wagner Act did not distinguish between failure to object before the Trial Examiner and failure to object before the Board. In the Taft-Hartley Act of 1947 Congress expressed its dissatisfaction at the lack of independence of the Trial Examiner which had followed from the Board’s unlimited review of all cases heard by him. By the additional provision in subsection (c) it limited the Board’s examination of cases to those in which the unsuccessful party specifically appealed to it for review of the decision of the Trial Examiner. See N. L. R. B. v. Stocker Mfg. Co., 185 F.2d 451, 454 (3rd Cir. 1950). Compare Building Material Teamsters, etc. v. N. L. R. B., 275 F.2d 909, 913 (2nd Cir. 1960). Where no exceptions are filed to the Trial Examiner’s decision, his findings of fact, conclusions of law and recommended order how automatically become those of the Board. Accordingly, under the present plan if a Trial Examiner were to be deemed an “agent”, a dissatisfied litigant could bypass the Board and raise an issue in the Court of Appeals without the Board having had an opportunity to reconcile the Trial Examiner’s decision with its general policy, fashioned in its expert view of federal labor law. It would require a concrete expression in an unmistakable manner to show that Congress intended this result, which would mean abandonment of its important design in which the Board was to develop the national labor policy. The legislative history contains no such expression. Opponents of the Taft-Hart-ley Act did complain that the result of the amendment of § 10(c) would be to allow litigants to bypass the Board. Senator Taft, in answering this criticism in a formal analysis of the Conference Bill, stated: “Several checks would present this happening. Section 10(e) provides, ‘No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the Court.’ In addition, the attorney trying the case would presumably file exceptions to such a report and the General Counsel in any event would not go forward with enforcement if the order was erroneous.” To us this statement seems sufficiently ambiguous to leave the answer to the question in doubt, although Chief Judge Parker in N. L. R. B. v. Pugh & Barr, Inc., 194 F.2d 217, 219 (4th Cir. 1952), construed it to mean that challenge in the courts was foreclosed to one who did not make objection to the Trial Examiner’s report. In these circumstances of legislative uncertainty the fact that Congress did not undertake to make a complex revision of subsection (e), expressing in specific language the requirement of successive objection to the Trial Examiner and then to the Board, is of no real significance. In a long line of decisions by most of the Courts of Appeals it has been held that under the existing statutory provisions objections not raised before the Board are waived, notwithstanding their having been presented before the Trial Examiner. Congress has not intervened in this judicial construction, and its inaction, especially in so sensitive an area, is an acceptable element of guidance, and indicates that the judicial view is not out of harmony with its intention. Finally, respondent urges that if the failure to object to the Board is to be deemed a waiver, the rule should be restricted to issues of fact and not include issues of law. It points out that many of the decisions which have held the objection waived, dealt with issues of fact. It seeks support in the language in subsection (e), following that dealing with waiver, which provides that “[t]he findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive”, and suggests that it indicates that the waiver provision therefore was intended to apply only to questions of fact. The boundaries between “fact” and “law” are not so sharply delineated that we would encourage the use of such distinctions in determining the need to file exceptions to the Trial Examiner’s decision. Indeed the question whether Irvin-McKelvy’s employees were employees also of West Penn or were under their control to the extent that the two companies became allies, superficially appears to call for factual determination, and illustrates the typical ambiguities which pervade distinctions between questions of fact and questions of law. Where the issue is the scope of review such uncertainty may be tolerable, but it would be destructive of the effective administration of the Act if the right of review depended on such a distinction. Moreover, the distinction, even if it could be workably maintained, would violate the recognized policy of the courts to accord initial recognition to the administrative agency’s determinations of law in the complex factual settings in which they usually occur. The recognized administrative role of the Board is not limited to factual determinations; it has an equally important place in the application of labor law to the facts thus ascertained. Only, therefore, if the language of the Act required it would we recognize such an artificial distinction. The language does not compel such a conclusion; indeed, the absence of the limitation to questions of fact in the provision requiring objections to be made points clearly to the opposite conclusion. The waiver rule of § 10(e) must therefore be applied without any artificial distinction between questions of fact and law. We therefore conclude that respondent lost the right to complain of errors in the Trial Examiner’s decision when it failed to file exceptions with the Board. This is the result required by the long course of decisions which Congress has left unchanged, by the consistent position of the Board reflected in its Rules and Regulations, and by the policy which requires that the Board’s expert judgment should be brought into play by a dissatisfied litigant before recourse is had to the courts. The petition of the Board therefore will be granted and its order enforced. . National Labor Relations Act, § 6 (29 U.S.C. § 156). . Rules & Regulations, Series 8, as amended, 29 C.F.R. Part 102. § 102.46 states: “ * * * (b) Each exception (1) shall set forth specifically the questions of procedure, fact, law, or policy to which exceptions are taken * * . Any exception to a ruling, finding, conclusion, or recommendation which is not specifically urged shall be deemed to have been waived. * ” “(h) No matter not included in exceptions or cross-exceptions may thereafter be argued before the Board, or in any further proceeding.” Section 102.48(a) provides: “In the event no timely or proper exceptions are filed as herein provided, the findings, conclusions, and recommendations of the trial examiner as contained in his decision shall, pursuant to section 10(c) of the act [29 U.S.C. § 160(c)], automatically become the decision and order of the Board and become its findings, conclusions, and order, and all objections and exceptions thereto shall be deemed waived for all purposes.” . In Seven-Up, supra, where the company’s exceptions to the Trial Examinerls report had specified only that the recommendations as to the remedy were contrary to law, Mr. Justice Frankfurter said: “ * * This is not adequate notice that the Company intends to press the specific issue it now raises. * * * ” It was therefore held that the company’^ objections were foreclosed. See also N. L. R. B. v. McCloskey & Co., 255 F.2d 68 (3rd Cir. 1957); Allegheny Pepsi-Cola Co. v. N. L. R. B., 312 F.2d 529 (3rd Cir. 1962). . See also, Garner v. Teamsters, Chauffeurs and Helpers Local Union, 346 U.S. 485, 490, 74 S.Ct. 161, 98 L.Ed. 228 (1953); San Diego Building Trades Council v. Garmon, 359 U.S. 236, 242-243, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Marine Engineers Beneficial Ass’n v. Interlake Steamship Co., 370 U.S. 173, 178-181, 82 S.Ct. 1237, 8 L.Ed.2d 418 (1962). Compare Hennesey v. S. E. C., 285 F.2d 511 (3rd Cir. 1961). . Section 5 of the Act permits the Board to designate “agents or agencies” to prosecute inquiries necessary to its functions. The present separation of the judicial and prosecutorial functions of the Board and its staff would of course preclude the Trial Examiner from being deemed to be authorized to prosecute inquiries, even though he might for other purposes be an “agent” of the Board. Subsections (b) and (c) of § 10 authorize the Board to delegate to an “agent or agency” the authority to hold hearings and take testimony; § 11 gives the Board or its “agent” access to documents, power to administer oaths and to examine witnesses; and § 10(e) authorizes the court to order additional testimony to be taken before the “Board, its member, agent, or agency.” These provisions clearly fall within the scope of the duties of a Trial Examiner. . S.Rep. No. 105, 80th Cong. 1st Sess., pp. 9, 20 (1947); Universal Camera Corp. v. N. L. R. B., supra, 340 U.S. at 493-495, 71 S.Ct. 456, 95 L.Ed. 456. . While Congress clearly intended to limit the role of Board expertise as a substitute for evidence (See H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., p. 53 (1947), U.S.Code Cong.Serv.1947,. p. 1135), its decision not to abolish the Board or to create a labor court indicates an acknowledgment of the utility of the Board’s expert knowledge. See Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); cases cited at note 4, supra. . See, e. g., H.R.Rep. No. 425, 80th Cong., 1st Sess., Minority Views, at 93 (1947); Speech of Senator Morse, 93 Cong.Rec., 80th Cong., 1st Sess., p. 6456 (1947); Speech of Senator Murray, id., p. 6506. . 93 Cong.Rec. 6860. . First Circuit: N. L. R. B. v. Izzi, 343 F.2d 753 (1965). Second Circuit: Building Material Teamsters etc. v. N. L. R. B., 275 F.2d 909, 913-914 (1960); N. L. R. B. v. Ra-Rich Mfg. Corp., 276 F.2d 451, 455 (1960); contra, International Ladies Garment Workers’ Union, etc. v. N. L. R. B., 339 F.2d 116, 121, n. 1 (1964). N. L. R. B. v. Lundy Mfg. Corp., 286 F.2d 424, 426 (1960) is not contrary; it relies on the extraordinary circumstances under § 10(e) because respondent did not include a specific criticism of the then existing law. Third Circuit: In N. L. R. B. v. Marshall Maintenance Corp., 320 F.2d 641 (1963) , the court refused summary enforcement of a Board order because the Board had refused to consider exceptions it had received one day late, in circumstances which we deemed extraordinary and an excuse for the untimely filing. Fourth Circuit: N. L. R. B. v. Pugh & Barr, supra; N. L. R. B. v. Community Motor Bus Co., Inc., 335 F.2d 120 (1964) ; N. L. R. B. v. Kotarides Baking Co., Inc., 340 F.2d 587 (1965). Fifth Circuit: N. L. R. B. v. Mooney Aircraft, Inc., 310 F.2d 565 (1962). Sixth Circuit: N. L. R. B. v. Globe-Wernicke Systems Co., etc., 336 F.2d 589 (1964); N. L. R. B. v. Richard W. Kaase, 346 F.2d. 24, 28-29 (1965); N. L. R. B. v. Ferraro’s Bakery, Inc., 353 F.2d 366 (1965). Seventh Circuit: Kovach v. N. L. R. B., 229 F.2d 138, 143-144 (1956); Kick-haefer Corp. v. N. L. R. B., 273 F.2d 314, 316, cert. denied, 362 U.S. 950, 80 S.Ct. 861, 4 L.Ed.2d 868 (1960). Ninth Circuit: N. L. R. B. v. Noroian, 193 F.2d 172 (1951); N. L. R. B. v. Essex Wire Corp., 245 F.2d 589, 591 (1957); N. L. R. B. v. Giustina Bros. Lumber Co., 253 F.2d 371, 374 (1958). The contrary view in N. L. R. B. v. Red Spot Electric Co., 191 F.2d 697 (1951) is dictum and has not survived the later 9th Circuit cases. D.C. Circuit: Puerto Rico Drydock & Marine Terminals, Inc., v. N. L. R. B., 109 U.S.App.D.C. 78, 284 F.2d 212, 215-216 (1960), cert. denied, 364 U.S. 883, 81 S.Ct. 172, 5 L.Ed.2d 104 (1960). . See, e. g., F. C. C. v. A. B. C., Inc., 347 U.S. 284, 296, 74 S.Ct. 593, 98 L.Ed. 699 (1954); Apex Hosiery Co. v. Leader, 310 U.S. 469, 487-489, 60 S.Ct. 982, 84 L.Ed. 1311 (1940). Compare Cleveland v. United States, 329 U.S. 14, 22, 67 S.Ct. 13, 91 L.Ed. 12 (1946) (Rutledge, J., concurring); Wong Yang Sung v. McGrath, 339 U.S. 33, 47, 70 S.Ct. 445, 94 L.Ed. 610 (1950). . See 4 Davis, Administrative Law Treatise (1958), § 30.01, et seq.; Jaffe, Judicial Review: Question of Law, 69 Harv. L.Rev. 239 (1955); Question of Fact, id., at 1020 (1956); N. L. R. B. v. Marcus Trucking Co., Inc., 286 F.2d 583, 590-592 (2nd Cir. 1961) (Friendly, J.); see also Hartsfield v. Gulf Oil Corp., 29 F.R.D. 163 (E.D.Pa.1962). . See N. L. R. B. v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944). . See, e. g., Garner v. Teamsters Chauffeurs and Helpers Local Union, supra; San Diego Building Trades Council v. Garmon, supra; cf. Radio Officers Union, etc. v. N. L. R. B., 347 U.S. 17, 48-52, 74 S.Ct. 323, 98 L.Ed. 455 (1954). . See Puerto Rico Drydock & Marine Terminals, Inc. v. N. L. R. B., 109 U.S.App.D.C. 78, 284 F.2d 212, 216 (D.C. Cir. 1960), cert. denied,. 364 U.S. 883, 81 S.Ct. 172, 5 L.Ed.2d 104 (1960). Question: What is the number of judges who voted in favor of the disposition favored by the majority? 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. LOCKMAN FOUNDATION, Plaintiff-Appellant, v. EVANGELICAL ALLIANCE MISSION; Evangelical Alliance Mission of Japan; Kenneth G. McVety, Defendants-Appellees. No. 89-56230. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 8, 1991. Decided April 18, 1991. Charles S. Treat, Latham & Watkins, Los Angeles, Cal., John F. Flannery, Fitch, Even, Tabin & Flannery, Chicago, Ill., Richard A. Clark, Parker, Milliken, Clark, O’Hara & Samuelian, Los Angeles, Cal., for plaintiff-appellant. Edmond M. Connor, Dean J. Zipser, Paula Perez-Pena and David A. Delman, Morrison & Foerster, Irvine, Cal., for defendants-appellees. Before GOODWIN, BOOCHEVER and RYMER, Circuit Judges. RYMER, Circuit Judge: This case involves a dispute over the translation of a version of the Bible into several Asian languages, particularly Japanese. The Lockman Foundation (“Lock-man”) sued The Evangelical Alliance Mission (“TEAM”), TEAM’S alleged alter ego in Japan, called TEAM/Domei, and McVety, a TEAM/Domei representative in Japan, in federal district court in California, alleging various copyright and noncopy-right counts, including a RICO violation, arising under United States, Japanese and California law. The district court dismissed the case on the ground of forum non conveniens. Lockman challenges the dismissal of its noncopyright claims and contends the district court erred in not allowing it to amend its complaint to drop the copyright counts. Because the district court did not abuse its discretion in concluding that Japan is the more convenient forum for these claims and because granting leave to amend would have been futile, we affirm. I Lockman owned an English translation of the Bible and sought to have its version translated further into several Asian languages. It established a relationship with TEAM to organize and accomplish the translating effort. Lockman and TEAM maintained a relationship for over 30 years, which led to the publishing of a new Japanese version of the Bible (“Shinkaiyaku Seisho”) distributed almost exclusively in Japan. The Lockman and TEAM cooperation also led to ongoing projects to produce more translations into several other Asian languages. The relationship eventually soured and Lockman brought this suit, alleging various claims for copyright infringement, unfair competition, and tort, contract and RICO violations. TEAM/Domei brought its own suit in Japan seeking a declaratory judgment that it owns the Japanese copyright to the Shin-kaiyaku Seisho. Loekman has appeared in that Japanese action. II The district court had jurisdiction over this suit under 28 U.S.C. § 1331 (federal question), § 1332(a) (diversity) & § 1338 (copyright). This court has jurisdiction under 28 U.S.C. § 1291. We review the district court's dismissal for abuse of discretion. “The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419, 436 (1981) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511-12, 67 S.Ct. 839, 844-45, 91 L.Ed. 1055, 1064 (1947)); Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1448-49 (9th Cir.1990). This standard presents Loekman with an uphill battle. A party moving to dismiss on grounds of forum non conveniens must show two things: (1) the existence of an adequate alternative forum, and (2) that the balance of private and public interest factors favors dismissal. Contact Lumber, 918 F.2d at 1449. This showing must overcome the “great deference ... due plaintiffs because a showing of convenience by a party who has sued in his home forum will usually outweigh the inconvenience the defendant may have shown.” Contact Lumber, 918 F.2d at 1449 (citing Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985)). Loekman stresses that plaintiffs presumptively may choose their forums. See Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062 (“unless the balance [of private and public interest factors] is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed”). The deference due to plaintiffs, however, is far from absolute. We have recognized that “[t]he presence of American plaintiffs ... is not in and of itself sufficient to bar a district court from dismissing a case on the ground of forum non conveniens.” Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir.), cert. denied, 464 U.S. 1017, 104 S.Ct. 549, 78 L.Ed.2d 723 (1983); Contact Lumber, 918 F.2d at 1449. In practice, “the cases demonstrate that defendants frequently rise to the challenge” of showing an alternative forum is the more convenient one. Contact Lumber, 918 F.2d at 1449. “A citizen’s forum choice should not be given dispositive weight_ [I]f the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper.” Piper Aircraft, 454 U.S. at 256 n. 23, 102 S.Ct. at 266 n. 23, 70 L.Ed.2d at 436 n. 23. A. Adequate Alternative Forum “At the outset of any forum non conve-niens inquiry, the court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is 'amenable to process’ in the other jurisdiction.” Id. at 254 n. 22, 102 S.Ct. at 265 n. 22, 70 L.Ed.2d at 435 n. 22 (citing Gulf Oil, 330 U.S. at 506-07, 67 S.Ct. at 842, 91 L.Ed. at 1061). Because the record shows that TEAM has agreed to submit to Japanese jurisdiction, .and because TEAM/Domei and McVety reside in Japan, the threshold test is satisfied. The initial requirement may not be satisfied, however, in “rare circumstances ... where the remedy offered by the other forum is clearly unsatisfactory.” Id.; see also Cheng, 708 F.2d at 1411 (“[T]he burden of proving an alternative forum is the defendant’s and ... the remedy must be clear before the case will be dismissed.”). Dismissal is not appropriate “where the alternative forum does not permit litigation of the subject matter of the dispute,” such that “the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all.” Piper Aircraft, 454 U.S. at 254 & n. 22, 102 S.Ct. at 265 & n. 22, 70 L.Ed.2d at 435 & n. 22. Lockman’s allegations as to why Japan would be an inadequate forum fail to show that a Japanese remedy would be “clearly inadequate.” Lockman takes issue with several aspects of Japanese court procedure, none of which suggest that courts in that country are an inadequate forum. First, Lockman claims that there is no pretrial discovery in Japan. TEAM’S experts, however, said Japanese discovery procedures, though not identical to those in the United States, would be adequate. The district court considered both sets of opinions and found that those of TEAM’S experts were more persuasive. The district court did not abuse its discretion in finding that TEAM’S assertion that Japan was an adequate forum was supported by sufficient evidence. See Cheng, 708 F.2d at 1410-11 (no error where district court found one set of experts more persuasive). Second, Lockman objects to the lack of jury trials in Japan. This fact does not render Japanese courts an inadequate forum. See In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195, 199, 202 (2d Cir.), cert. denied, 484 U.S. 871, 108 S.Ct. 199, 98 L.Ed.2d 150 (1987); Danser v. Firestone Tire and Rubber Co., 86 F.R.D. 120, 122 (S.D.N.Y.1980). Third, Lockman claims that Japanese appellate courts exercise de novo review of facts as well as law. Even assuming such a difference in standards of review would harm Lockman, this difference does not render Japan an inadequate forum. See Piper Aircraft, 454 U.S. at 250, 102 S.Ct. at 263, 70 L.Ed.2d at 432 (unfavorable change in law should not be given substantial weight). Fourth, Lockman contends that the statute of limitations would bar “many” of its claims. TEAM has satisfied this objection by waiving any statute of limitations defenses to Lockman’s claims that would not have been otherwise available to TEAM the day Lockman filed this suit in California. Lockman also complains of possible changes in substantive law. If forced to pursue its action in Japan, Lockman contends, it would be unable to litigate its RICO and Lanham Act claims and would lose the opportunity to recover treble damages and attorney’s fees. TEAM’S experts disagree, claiming that Japanese courts will apply the substantive law of the United States to Lockman’s counterclaims against TEAM in TEAM'S Japanese copyright action. There was evidence on both sides of this question and, again, Lockman fails to show how the district court’s crediting TEAM’S experts over its own amounted to an abuse of discretion. Even if the RICO and Lanham Act claims were unavailable in Japan, that would not furnish a sufficient reason to preclude dismissal. The “possibility of an unfavorable change in the law” is not to be given conclusive or substantial weight in a forum non conveniens inquiry. Piper Aircraft, 454 U.S. at 249-51, 102 S.Ct. at 262-64, 70 L.Ed.2d at 431-33; see also Borden, Inc. v. Meiji Milk Products Co., 919 F.2d 822, 829 (2d Cir.1990) (“ ‘the prospect of a lesser recovery does not justify refusing to dismiss on the ground of forum non conve-niens’ ”) (quoting Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147, 159 (2d Cir.) (en banc), cert. denied, 449 U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d 116 (1980)). Other courts of appeals have held, and we agree, that the inability to assert a RICO claim in a foreign forum does not preclude a forum non conveniens dismissal. See Kempe v. Ocean Drilling & Exploration Co., 876 F.2d 1138, 1143-44 (5th Cir.), cert. denied, - U.S. -, 110 S.Ct. 279, 107 L.Ed.2d 259 (1989); Transunion Corp. v. Pepsico, Inc., 811 F.2d 127, 129 (2d Cir.1987) (per curiam); cf. TAAG Linhas Aereas de Angola v. Transamerica Airlines, Inc., 915 F.2d 1351, 1353 n. 1 (9th Cir.1990) (leaving open question of whether federal policy requires that RICO claims be brought in federal court). Similarly, the presence of a Lanham Act claim does not preclude forum non conveniens dismissal. See Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 431 (9th Cir.1977) (dictum) (district court on remand could decide Nevada “is not a convenient forum in which to litigate part or all of the possible actions,” which included Lanham Act claims (emphasis added)). Even if a Japanese court were to reject these claims, Lockman has not shown that possible recovery on the other tort and contract claims would be “so clearly inadequate or unsatisfactory that it is no remedy at all.” Piper Aircraft, 454 U.S. at 254, 102 S.Ct. at 265, 70 L.Ed.2d at 435. The district court did not clearly err in its consideration and weighing of the evidence to determine that Japan provides an adequate alternative forum. B. Balance of Private and Public Interest Factors Given the existence of an adequate alternative forum, a district court must consider the balance of private and public interest factors to determine whether to dismiss on grounds of forum non conveniens. Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. at 843, 91 L.Ed. at 1062-63; Contact Lumber, 918 F.2d at 1449, 1453. Lockman, by conceding the dismissal of its copyright claims, attempts to recharacterize the case and thus invites this court to recalculate the balance. This attempt fails, though, because even the noncopyright claims are related to the copyright ones. 1. Private interest factors “Private interest factors include: ease of access to sources of proof; compulsory process to obtain the attendance of hostile witnesses, and the cost of transporting friendly witnesses; and other problems that interfere with an expeditious trial.” Contact Lumber, 918 F.2d at 1451 (citing Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062); see also Nebenzahl v. Credit Suisse, 705 F.2d 1139, 1140 (9th Cir.1983). a. Sources of proof Conceding the district court’s dismissal of its copyright claims, Lockman contends that the sources of proof for its remaining claims, which arise under tort, contract and federal statutes, are in English and in the United States. Lockman argues that relevant agreements were made in English in California and that TEAM, through McVety, made its allegedly fraudulent representations to Lockman in meetings in California during various visits over the course of many years. Lockman’s argument about sources of proof falls short because it relates only to how Lockman intends to present its case and ignores how TEAM intends to defend itself. The district court appropriately considered, in its balancing, TEAM’S defense as well as Lockman’s case in chief; in doing that, the Japanese copyright claim cannot be ignored. The court then correctly concluded that the balance tips strongly in favor of Japan as the more convenient forum. If Lockman’s noncopyright claims went forward, one of TEAM’S defenses would be that it owned the Japanese copyright to the Shinkaiyaku Seisho. TEAM has demonstrated that the copyright issue is integral to Lockman’s remaining claims. First, Lockman predicates its specific performance claim on TEAM’S refusal to acknowledge Lockman as copyright owner of the translations; if TEAM turns out to be the rightful owner of the copyright, then it need not specifically turn over copyrights. Similarly, TEAM need not account for funds due as royalties for works on which Lockman owns a copyright if, in fact, TEAM owns the relevant copyrights. Regarding the conversion claim, there is neither a conversion of a copyright nor funds due from one if TEAM is the copyright holder. The copyright claims are related to the others and the sources of proof on TEAM’S anticipated Japanese copyright defense are overwhelmingly in Japan. The breach of fiduciary relationship and fraud claims involve the alleged misuse of funds in Japan, particularly misappropriation to purchase Japanese real estate. For those claims, the district court concluded, a Japanese trial court might need to hear from “scores” of Japanese “bankers, accountants and church officials.” In addition, “[w]hen fraud charges are made, it is desirable that the factfinder have the benefit of demeanor testimony of witnesses.... ” Fustok v. Banque Populaire Suisse, 546 F.Supp. 506, 511 (S.D.N.Y.1982). In this case, the alleged defrauders are in Japan. TEAM contends the Lanham Act claim involves activities in Japan because all formal distribution channels for the works were in Asia. Lockman maintains that its Lanham Act claim pertains to distribution of the Shinkaiyaku Seisho in the United States, however limited such distribution was. Once again, Lockman fails to demonstrate why the district court’s conclusion was so clearly incorrect as to amount to an abuse of discretion. b. Availability of witnesses All or nearly all of the witnesses relating to TEAM’S claim of copyright are in Japan, several of whom are apparently elderly and infirm and who would have a difficult time traveling to the United States. More importantly, TEAM cannot force them to testify in the United States. On the other side of the coin, Lockman cannot compel its witnesses to appear in Japan. There will be unavoidable inconvenience regardless of the eventual forum. The inconvenience to Lockman, however, is mitigated because Lockman is already participating in TEAM/Domei’s Japanese copyright action. c. Policy favoring an expeditious trial This factor weighs in favor of a Japanese forum, because trying all claims in one case there would prevent fragmented litigation. Because Lockman does not challenge the dismissal of its copyright claims, it must pursue them in Japan, if at all. Were the district court to keep the noncopyright claims, there would be lawsuits on both sides of the Pacific arising out of related matters. The district court credited the expert testimony TEAM presented that Lockman could litigate its actions in Japan by counterclaiming against TEAM/Domei in the copyright suit and joining TEAM and McVety as defendants. Given the district court’s dismissal of the copyright claims, Japan remains the only forum in which the entire case may be tried. Cf. Contact Lumber, 918 F.2d at 1452-53 (Philippines being only forum with jurisdiction over all related cases counseled in favor of forum non conveniens dismissal). 2. Public interest factors “Public interest' factors encompass court congestion, the local interest in resolving the controversy, and the preference for having a forum apply a law with which it is familiar.” Id. at 1452; see also Nebenzahl v. Credit Suisse, 705 F.2d 1139, 1140 (9th Cir.1983). The district court considered public interest factors and concluded that the nature of the relationship of the parties showed that the controversy had a large connection to Japan and little connection to California because all claims were related to the translation and distribution of Bibles in Japan. Both Japan and California have interests in this dispute, California because of its interest in seeing its citizens compensated for torts committed against them, and Japan because of its interest in matters relating to Japanese copyrights. It is unclear what law Japan would apply to Lock-man’s tort claims. The balance of public interest factors might tip somewhat in favor of California, given that United States courts are more competent to decide questions of United States federal law, such as the RICO and Lanham Act claims. Nevertheless, the record shows that the district court considered public interest factors and because there is no reason for this court to form “a definite and firm conviction that the [district court] committed a clear error of judgment in the conclusion it reached,” Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir.1976) (citations omitted), its decision should remain undisturbed. There was no abuse of discretion in this case. C. Choice of Law Lockman claims that the district court erred in dismissing its tort and contract claims because California law applies to them and in dismissing its federal statutory claims because they arise under federal law. It relies on Zipfel v. Halliburton Co., 832 F.2d 1477, 1486 (9th Cir.1987), cert. denied, 486 U.S. 1054, 108 S.Ct. 2819, 100 L.Ed.2d 921, amended, 861 F.2d 565 (1988), to support its contention that the forum non conveniens doctrine is inapplicable where local law applies. That reliance is misplaced. Zipfel involved a claim under the Jones Act, which applies to injuries to seamen. Where the Jones Act applies, forum non conveniens dismissal is precluded. Id. Thus, the district court in Zipfel had to make a choice of law determination initially: did the Jones Act apply? If it did, then the inquiry would have ended as to those plaintiffs to whom it applied. Likewise, in Contact Lumber, we examined COGSA, another maritime statute, to determine whether, if applicable, that law would dictate retention of the case by an American court. 918 F.2d at 1450-51. We concluded that “even assuming the applicability of U.S. law, appellants have no entitlement to have their case heard in a U.S. court,” id. at 1451, and that, therefore, “choice of law is not a dispositive consideration in [that] dispute.” Id. at 1453 (emphasis added). These cases considered whether any particular choice of law determination mandated a certain forum, thus ending the forum non conveniens dispute. See id. at 1449 (“If appellant, however, can demonstrate that choice of law requires retaining the case, the motion to dismiss will be denied.” (emphasis added) (citing Zipfel, 832 F.2d at 1486)). In this case, there is no arguably applicable law that would end the forum non conveniens inquiry, so no potentially dispositive choice of law determination need have been made. Ill On September 11, 1989, after the district court had orally ruled dismissing Lock-man’s action on forum non conveniens grounds, Lockman moved to amend its complaint, seeking to drop the copyright counts. The district court entered its order dismissing Lockman’s complaint on September 29. On October 2, Lockman filed a notice of cancellation of its hearing on its motion for leave to amend. The district court took that matter under submission without oral argument and denied leave to amend on October 16. “This court reviews a district court’s denial of a motion for leave to amend under an abuse of discretion standard.” Contact Lumber, 918 F.2d at 1454 (citing Klamath-Lake Pharmaceutical Ass’n v. Klamath Medical Serv. Bureau, 701 F.2d 1276, 1292 (9th Cir.), cert. denied, 464 U.S. 822, 104 S.Ct. 88, 78 L.Ed.2d 96 (1983)). A. Sufficiency of Lockman’s Notice of Appeal TEAM contends that Lockman failed to appeal the denial of its motion for leave to amend because its notice of appeal failed to specify that particular order. See Fed.R.App.P. 3(c) (“The notice of appeal ... shall designate the judgment, order or part thereof appealed from”). Because Lockman’s notice of appeal designates only the September 29 order of dismissal, TEAM argues, it has failed to appeal the decision denying leave to amend. The amendment issue is properly before this court. We liberally construe Rule 3(c). See Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1422-23 (9th Cir.1989) (citing numerous Ninth Circuit cases), cert. denied, - U.S. -, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). “[A] mistake in designating the judgment appealed from should not bar appeal as long as the intent to appeal a specific judgment can be fairly inferred and the appellee is not prejudiced or misled by the mistake.” United States v. One 1977 Mercedes Benz, 708 F.2d 444, 451 (9th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 981, 79 L.Ed.2d 217 (1984). Where the appellee has argued the merits fully in its brief, it has not been prejudiced by the appellant’s failure to designate specifically an order which is subject to appeal. United States v. Walker, 601 F.2d 1051, 1058 (9th Cir.1979). TEAM fully briefed the merits of the leave to amend issue in its brief on appeal. It has not been prejudiced, so we consider the leave to amend issue. B. Leave to Amend Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given when justice so requires.” The district court may decline to grant such leave, though, where there is “any apparent or declared reason” for doing so, including undue delay, undue prejudice to the opposing party or futility of the amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222, 226 (1962) (emphasis added). Even though the district court did not give reasons for its denial, it is apparent from the record that granting leave to amend in this case would have been futile because the nonco-pyright claims are intertwined with TEAM’S Japanese copyright defense. The late request for leave to amend here appears “to be nothing more than a desperate effort at persuading the [district] court to retain jurisdiction,” such as the one we rejected in Contact Lumber, 918 F.2d at 1454. The district court did not abuse its discretion in denying leave to amend after it had made its dismissal ruling from the bench. IV Japan is an adequate alternative forum and the district court did not abuse its discretion in weighing the relevant factors before deciding that Japan is the more convenient forum. Lockman’s belated attempt to sever its copyright claims in order to save its California suit fails, because even the noncopyright claims are related to copyright issues, for which the balance of conveniences strongly favors resolution of the dispute in Japan. The district court did not abuse its discretion in denying Lock-man leave to amend because an amendment would have been futile. For these reasons, the decisions of the district court are AFFIRMED. . TEAM was the only defendant properly served and is therefore the only defendant that has appeared in this action. . Lockman alleged 11 counts, which are: (1) copyright infringement under United States law, based on its ownership of English translations of the Bible; (2) copyright infringement under Japanese law, based on a claimed ownership of the copyright to the new Shinkaiyaku Seisho; (3) specific performance of agreements through which TEAM would transfer copyrights to Loekman; (4) accounting for royalties and payments due from sales of Bibles to which Loekman owned a copyright; (5) false designation of origin relating to the United States copyright claim, alleging TEAM improperly used Lockman’s name on Bibles it sold after licensing agreements terminated; (6) unfair competition under the Lanham Act, alleging TEAM improperly traded on Lockman’s name by distributing Bibles in the United States; (7) conversion, of money, copyrights and translation works in progress; (8) breach of fiduciary duty, specifically mismanagement of funds to be used for translations, including an allegation that TEAM used translation funds to purchase real estate in Japan; (9) conspiracy to defraud Loekman of money and copyrights; (10) fraud, by misappropriating funds earmarked for translations, by misrepresenting that translations were being diligently made and by converting copyrights belonging to Loekman; and (11) RICO claims. . Federal courts have consistently found that Japan provides an adequate alternative forum to litigation in the United States. See, e.g., Philippine Packing Corp. v. Maritime Co. of Philippines, 519 F.2d 811, 812 (9th Cir.1975) (per curiam); Paterson, Zochonis (U.K.) Ltd. v. Compania United Arrows, 493 F.Supp. 626, 630 (S.D.N.Y.1980); Del Monte Corp. v. Everett Steamship Corp., 402 F.Supp. 237, 244 (N.D.Cal.1973). We have found no reported cases holding Japan to be an ¿«adequate forum. . The matters are related because of TEAM'S anticipated copyright defense. Furthermore, Lockman itself has alleged, in this case, that the claims are related. Lockman asserted before the district court, in its amended complaint, that the common law claims were pendant to the copyright claims "because these claims and the federal law claims arise out of a common nucleus of operative facts." On appeal, though, Lock-man urges us to divorce the copyright claims from the others, contending that they are ««related. This we cannot do. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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. HELVERING, Commissioner of Internal Revenue, v. BROOKLYN CITY R. CO. No. 340. Circuit Court of Appeals, Second Circuit. July 16, 1934. Frank J. Widoman, Asst. Atty. Gen., and Sewall Key and John MaeC. Hudson, Sp. Assts. to the Atty. Gen.., for appellant. Sigourney B. Olney, of Brooklyn, N. Y., and Raymond B. Goodell, of New York City, for appellee. Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges. L. HAND, Circuit Judge. This is an appeal from (petition to review) an order of the Board of Tax Appeals which expunged a deficiency fixed hv the Commissioner for the calendar year 1921. The taxpayer is a street railway, subject to the jurisdiction of the Public Service Commission of the State of Now York, and on July 10, 1890, its executive committee and directors, in ■pursuance of a recent statute of the state requiring it to do so, fixed its fiscal year to end June thirtieth; and thereafter it made its reports to the commission on the basis of such a fiscal year. It did not however do the same in its income tax returns, but until 1930 filed these on the basis of the calendar year. In accordance with this practice, on or about March 15, 3922, it filed a return Cor the whole calendar year 1921, on which the Commissioner assessed a deficiency of $154,000; on August 6, 1926, for reasons not necessary to consider. On October 2 of that year it filed with the Board of Tax Appeals a petition to review this assessment; which it amended in April, 1931. In the amendment it insisted that its return should have been for the fiscal year ending June 30, 1921, in which event there would have been no deficiency; as the original petition is not in the record, we cannot know whether or not it took the same position also. The Commissioner contested the taxpayer’s right to vary the period voluntarily selected by it; but the Board decided that the statute made compulsory the actual fiscal year, if there was one, and that neither the taxpayer, nor the Commissioner, had power to adopt any other. The Commissioner then appealed. Three questions arise. First, whether the books were in fact kept on a fiscal year basis; second, whether if they were, the return must follow the fiscal year; third, whether the taxpayer is estopped to raise the question for the first time on a petition to the Board to review the deficiency. We have no doubt that the books were in faet kept on a fiscal year basis; and indeed, the Commissioner substantially conceded as much before flic Board. Be that as it may, the hooks were themselves in evidence, and showed a closing date of June thirtieth in all cases. Specifically, the cash was balanced as of that date, and only then; this is also tiue of the “accounts receivable,” the “suspense account,” and the “general office building account.” The “operating and maintaining” account was indeed kept on a quarterly basis, one quarter ending December thirty-first; but these quarterly balances were carried over to the profit and loss account, which was itself balanced only on June thirtieth, and was finally carried into the surplus account, where the significant entry appears, “To transfer debit balance of Profit and Loss a/e to Surplus a/c at termination of Fiscal year June 30th, 3921.” The same entry was made for the next year. The surplus account was balanced as of June thirtieth. All this would be conclusive, even though we were hearing the causa de novo; after a finding by the Board it is quite beyond our review. The books being so kept, the statute required the return to bo made as of the fiscal year and that alone. “The net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year, as the ease may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer.” Section 212, Revenue Act of 1921 (42 Stat. 237); Great West Printing Co. v. Com’r, 60 F.(2d) 749 (C. C. A. 8). The taxpayer had no election; section 226 (a) of 1921 (42 Stat. 251) refers only to a change in bookkeeping, not to a change in the period of the return, which must always conform with the books. The only remaining question, therefore, is whether the taxpayer’s consistent but mistaken course of conduct has estopped it from raising the objection in its challenge of the deficiency assessed. The Commissioner argues that the opportunity to reassess the income both before and after 1921 has long since expired, and that he has lost this right because he relied upon the return as filed. This he must prove, for estoppel is an affirmative defence. In the first place it docs not appear that he did not have immediate access to all the books of the taxpayer in every year in which a return was filed; he may have actually examined them. Therefore the record does not establish an estoppel, even though we assume that a return for a calendar year indicated that the books are kept on that basis, as perhaps we should do. Again, nobody can. say that if the income of the taxpayer had been assessed on a fiscal year basis from 1918 on, it would have been greater than that returned, except for the omission of the last six months of 1921. A party invoking an estoppel mnst show that he has been damaged. As to the last six months of 1921, it does seem to be true that as things are, they have escaped taxation, hut we cannot say that this is because the Commissioner was misled by the return for that year. He assessed the deficiency on August 6, 1906, more than four years after the return was filed (section 277 (a) (2) of the Aet of 1926, 26 USCA § 1057 (a) (2); presumably his time to assess had been extended. The original petition to the Board to review the deficiency was filed on October 2,1926, and that was within four years of the presumptive filing date of the return for 1922, which, being for a calendar year, would have been about March 15, 1923. The time to assess the income for the last six months of 1921 did not Ipegin to run until then, because only then did the Commissioner have the facts on which to assess a tax for the fiscal year, July 1, 1921, to June 30, 1922. Paso Robles Mercantile Co. v. Com’r, 33 F.(2d) 653 (C. C. A. 9) ; Mann v. U. S., 44 F.(2d) 1005, 1010 (Ct. Cl.); United States v. National T. & E. Co., 45 F.(2d) 1005 (C. C. A. 5); National Shirt Shops v. U. S., 57 F.(2d) 925, 927 (Ct. Cl.). Not having before us the petition of October 2, 1926, we cannot assume that it did not raise this question; and it is therefore possible that the Commissioner was advised of the taxpayer’s position in season to assess the income for the last six months of 1921. The burden being upon him to establish his defence, he fails. Order 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_casetyp1_7-2	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". In re LEGG. LEGG v. ST. JOHN. No. 6906. Circuit Court of Appeals, Sixth Circuit. April 15, 1935. Henry Roberts, of Bristol, Va. (Roberts & Roberts, on the brief), for appellant. Clayton Scyphers, of Bristol, Va., and Robert Burrow, of Bristol, Tenn., for ap-pellee. Before HICKS, SIMONS, and ALLEN, Circuit Judges. ALLEN, Circuit Judge. The District Court affirmed an order of the referee in bankruptcy directing a life insurance company to pay disability benefits accruing to the' bankrupt after adjudication in bankruptcy, to the trustee as assets of the bankrupt’s estate. The bankrupt’s life insurance policy and its cash surrender value, together with $40 of the monthly disability benefits, were held exempt. The sole question is whether the remainder of the monthly total and permanent disability payments, amounting to $134.52 per month, are exempt under sections 8456 and 8458 of the Tennessee Code of 1932, or under title 11, u: S. C. § 110 (a) (5), 11 USCA § 110 (a) (5). Even were we to assume that section 8456 applies notwithstanding the phrase “in case of his < death,” the question presented under sections 8456 and 8458 is the same. The disability payments are exempt only if they are made under a policy of life insurance or annuity. It is appellant’s principal contention that they are made under a life insurance policy. The bankrupt was insured under such a policy. The disability contract, both- by its terms and physically, is “attached to and made part of” the life insurance policy. Considered separately, the disability contract in no sense provides for life insurance. It is effective. before death, upon a contingency, and is payable directly to the insured. However, appellant contends that as the contract is attached to and made part of the life insurance policy, it falls within the statutory exemption. The disability contract contains the following provision: “This Supplementary Contract shall be deemed to be a part of the above numbered Policy and the provisions of said Policy concerning declarations and representations by the insured, restrictions, payment of premiums, change of beneficiary, and assignment, are hereby referred to and by such reference made a part hereof. No other provisions of said Policy shall be held or deemed to be a part hereof He * Hi ” Certain exceptions follow, which have no application here. The disability contract, then, provides that the two contracts should be read together as to certain features, and should be separate as to other features. The payment of disability benefits does not fall within those provisions in which the two contracts are one. The premiums for the two forms of protection are entirely separate. In short, the disability contract is not a life insurance contract, nor is it by its own terms, except in limited particulars, a part thereof. Neither is it an annuity contract. An annuity contract provides for payments to the insured or a named person or persons of a sum or sums 'periodically during life, or for a certain period. While this supplementary contract resembles an annuity in the fact that periodical payments to the insured are now being made thereunder, it does not fall within the definition of an annuity contract, and also it is not issued “upon the life” of the insured (section 8458). Hence the Tennessee statutes have no application. Neither does the contract fall within section 70a (5) of the Bankruptcy Act (section 110 (a) (5), 11 USCA). That provision covers any insurance contract which has either an express cash surrender value or a cash surrender value under the concession or practice of the insurer. Hiscock, Trustee, v. Mertens, 205 U. S. 202, 27 S. Ct. 488, 51 L. Ed. 771. This disability contract has no cash surrender value. Also nothing in the record indicates a practice of the insurer giving it cash surrender value, nor any offer from the company to pay any amount upon the surrender of this disability contract. We grant that Tennessee exemption statutes are to be construed liberally. Terry v. McDaniel, 103 Tenn. 415, 53 S. W. 732, 46 L. R. A. 559; Dawson, Trustee, v. National Life Ins. Co., 156 Tenn. 306, 300 S. W. 567. However, no construction is called for where the contract is clearly not within the terms of the statute. Appellant urges thaj, since the disability contract provides for waiver of premiums and also for the payment of disability benefits, the'effect of the holding of the District Court is inconsistent in that it preserves for the insured his right to a waiver of premiums during disability while applying the disability benefits to the payment of his debts. This contention ignores the fact that each of these provisions is now being performed. The payment of premiums is waived, and the disability benefits are being paid. The judgment of the District Court is affirmed. Section 8456: “Any life insurance effected by a husband on his own life shall, in case of his death, inure to the benefit! of his widow and children; and the money thence arising shall be divided between them, according to the statutes of distribution, without being in any manner subject to the debts of the husband.” Section 8458: “The net amount payable under any policy of life insurance or under1 any annuity contract upon the life of any .person made for the benefit of, or assigned to, the wife and/or children, or dependent relatives of such person, shall be exempt from all claims of the creditors of such person arising out of or based upon any obligation created after the effective date of this Code, whether or not the right to change the named beneficiary is reserved by or permitted to such person.” Section 110 (a) (5), title 11, U. S. C., 11 USCA § 110 (a) (5): “ * * * When any 'bankrupt shah have any insurance policy which has a cash surrender value payable to himself, his estate, or personal representatives, he may, within thirty days after the cash surrender value has been ascertained and stated to the trustee' by the company issuing the same, pay or secure to the trustee the sum so ascertained and stated, and continue to hold, own, and carry such policy free from the claims of the creditors participating in the distribution of his estate under the ' bankruptcy proceedings, otherwise the policy shall pass to the trustee as assets « * * >> Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_respond1_5_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. Stella Beatrice STEWART, Plaintiff-Appellant, v. Robert BERNSTEIN, in his official capacity as Commissioner of the Texas Health Department, et al., Defendants-Appellees. No. 84-2352. United States Court of Appeals, Fifth Circuit. Sept. 3, 1985. East Texas Legal Services, Brenda Gale Willett, Nacogdoches, Tex., for plaintiff-appellant. Bob Wortham, U.S. Atty., Beaumont, Tex., Steven M. Mason, Tyler, Tex., for Heckler. Michael H. Patterson, San Antonio, Tex., Jim Mattox, Atty. Gen., Austin, Tex., for Bernstein, et al. Stephen Greenberg, Sheila Asher, Austin, Tex., for Vaughn, et al. Before GOLDBERG, TATE and JOLLY, Circuit Judges. GOLDBERG, Circuit Judge: Appellant Stella Stewart is a Medicaid recipient who, from May of 1979 to November of 1980, resided at the Kilgore Nursing Center (KNC), a private nursing home located in Texas. On November 18,1980, the administrator of KNC, Steve Vaughn, notified appellant by letter that she would have to leave the facility within three days. Ms. Stewart maintains that on the third day, she was involuntarily taken from the Center and deposited at the Henderson Memorial Hospital, where no one had arranged in advance for her admission. When appellant’s husband and daughter later returned to the Center seeking information about the transfer, they discovered that appellant’s room had been rented out to another resident, her belongings removed. This appeal arises from appellant’s class action suit filed in federal court pursuant to title XIX of the Social Security Act (“Medicaid Act”), 42 U.S.C. §§ 1396-1396q, the Civil Rights Act of 1871, 42 U.S.C. § 1983, and a number of pendent state law theories. Stewart sought damages and declaratory and injunctive relief against the H.H. Holding Co., Inc., d/b/a Kilgore Nursing Center, Steve Vaughn, and the Commissioners of the Texas Department of Human Resources and the Texas Department of Health, alleging that she had been involuntarily discharged from the Center in violation of her federal equal protection, due process, and statutory rights. In particular, she alleged that the private defendants had discharged her on impermissible grounds as set forth in the federal Medicaid regulations, 42 C.F.R. §§ 405.-1101-1137, 442.300-.346, and that the state agencies had facilitated her discharge by failing to promulgate regulations requiring private nursing homes such as KNC to comply with the Medicaid Act and its implementing regulations. Appellant’s chief goal is to obtain state regulations prohibiting private nursing homes from discharging or transferring residents for any reason without at least five days’ notice and an opportunity for a hearing prior to the discharge or transfer. In a series of written orders, the district court dismissed each of appellant’s federal claims under Fed.R.Civ.P. 12(b)(6) for fail- • ure to state a claim upon which relief can be granted. The court eventually dismissed appellant’s pendent state claims as well, though without prejudice to her right to refile these claims in state court. We affirm. I Medicaid is a program whereby participating states work with the federal government to provide medical assistance to qualified recipients. As we previously described the system, Participating states receive a proportional reimbursement from the federal government for expenses incurred in providing medical services for eligible medicaid patients. In order to participate in the Medicaid program, a state must submit a plan to the Secretary of [Health and Human Services (HHS) ] for approval, and the plan must comply with all requirements of 42 U.S.C. § 1396a. The state must also provide for a system under which the single state agency responsible for the program shall be responsible for fulfillment of hearing provisions. Once a state plan is approved, the state agency responsible for the program is authorized to contract with public and private institutions for the rendering of medical services to eligible recipients. Taylor v. St. Clair, 685 F.2d 982, 985 (5th Cir.1982) (citations and footnote omitted). Texas has a federally approved state Medicaid plan, which is administered by the Texas Department of Human Resources (TDHR). Under the state plan, individuals reside in either “skilled nursing facilities” or “intermediate care facilities.” By contract with TDHR, the Texas Department of Health receives and investigates the complaints of Medicaid recipients concerning their nursing home care. In seeking to hold the state defendants liable for her transfer out of KNC, appellant must establish that she was deprived of a federal constitutional or statutory right under color of state law. E.g., Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156-57, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978); Frazier v. Board of Trustees, 765 F.2d 1278, 1282-83 (5th Cir.1985). It is clear, however, that a state cannot be held responsible for the decisions of a private nursing home to discharge or transfer a patient. Blum v. Yaretsky, 457 U.S. 991, 1012, 102 S.Ct. 2777, 2789, 73 L.Ed.2d 534 (1982); Taylor, 685 F.2d at 987-88; cf. O’Bannon v. Town Court Nursing Center, 447 U.S. 773, 787, 100 S.Ct. 2467, 2476, 65 L.Ed.2d 506 (1980) (state’s decertification of private nursing facility has only “indirect and incidental”' impact on residents). Since appellant cannot meet the under-color-of-law requirement of section 1983, her claim against the state defendants must fail. Appellant attempts to avoid this result by asserting that the state lacks regulations sufficient to protect Medicaid recipients from having their federal statutory and regulatory “rights” infringed. In appellant’s words, Plaintiff does not seek to hold the state defendants responsible for the nursing home’s eviction of Stella Stewart, but does seek to hold them responsible for failure to have policies and procedures for protecting the specific rights set out in the federal regulations for the benefit of transferred nursing home patients. [TDHR] has abdicated its responsibility for enforcing those portions of the Medicaid regulations designated as “Patients’ Rights” and has neglected to monitor compliance. Brief for Appellant at 18. Since in Blum the Supreme Court expressly pretermitted the issue of state noncompliance with specific federal or state regulations, 457 U.S. at 1003, 1012 n. 22, 102 S.Ct. at 2785, 2790 n. 22, appellant contends that the state’s regulatory omissions can render it liable in this case. The theory is creative but flawed. While the federal Medicaid regulations do provide that patients be given “reasonable advance notice to ensure orderly transfer or discharge,” 42 C.F.R. § 405.1121(k)(4), our holding that there was no state action in Taylor covered a plaintiff class comprising “all Medicaid patients who have been or are being or will in the future be terminated from nursing home service without the benefit of prior written notice and an evidentiary hearing to determine whether just cause exists under the Patient’s Bill of Rights [42 C.F.R. § 405.1121] for such termination.” 685 F.2d at 984. In Taylor, as here, the private nursing home’s decision to discharge the plaintiff allegedly violated the federal notice and hearing requirements. See id. at 985, 987 n. 13. We nevertheless held that section 1983’s state action requirement of private conduct “fairly attributable” to the state foreclosed the position that the state’s regulatory action or inaction subjected it to civil rights liability. Id. at 987-88; see Blum, 457 U.S. at 1002-03, 102 S.Ct. at 2784-85; Frazier, at 1283-85. As the district court properly noted in this case, appellant effectively relinquishes her claim by “not seekpng] to hold the state defendants responsible for the nursing home’s eviction of Stella Stewart.” Brief for Appellant at 18. Since it is a wrongful eviction of which appellant complains, anything less than state responsibility for that action is insufficient to state a claim for relief under section 1983. Appellant faces another predicament in her claim against the state appellees: article III standing. A plaintiff must “ ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601, 1607, 60 L.Ed.2d 66] (1979), and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision,’ Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450] (1976).” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). In the present case, appellant argues that the state appellees are not “responsible for the ... eviction,” but that they are instead “responsible for failure to have policies and procedures” effectuating patients’ federal regulatory rights. At the same time, however, she recognizes that any relief that might issue against the state appellees mandating new policies and procedures would not necessarily prevent similar conduct by private nursing homes in the future. As the district court observed, Plaintiffs’ argument ... does not allege that the state defendants caused in any way her eviction from KNC. It does not allege that the state defendants failed to perform any existing duty, or that [they] failed to enforce any existing laws or regulations that they were authorized to enforce. Furthermore, plaintiffs concede that, even if this court ordered the state defendants to adopt all the procedures plaintiffs propose, future illegal discharges would still occur if the private nursing home ignored those procedures, just as, it is alleged, KNC ignored its existing responsibilities under 42 C.F.R. § 405.1121(k)(4)-(5) in November of 1980. If private nursing facilities were to illegally discharge members of the plaintiff class in the future, after adoption of the regulations plaintiffs seek, plaintiffs concede that the state defendants could not be held responsible for such “isolated incidents.” By acknowledging the fact that the plaintiffs might still suffer precisely the same injuries even if all the relief they seek were granted, plaintiffs establish that they have “failed to allege a sufficient nexus between [their] injury and the government action which [they] attack[].” Linda R.S. v. Richard D., 410 U.S. 614, 617-18 [93 S.Ct. 1146, 1148-49, 35 L.Ed.2d 536] (1973). Order Upon Plaintiffs’ Motion for Reconsideration, slip op. at 11-12, Record vol. 2 at 164-65. Appellant’s inability to demonstrate state action thus reflects a similar absence of standing to assert her claims against the state appellees. In short, we agree with the district court that “[plaintiffs’ complaint, properly understood, amounts to a naked legislative proposal, addressed to the wrong branch of the wrong government.” Id. at 12, Record vol. 2 at 165. These state agencies cannot be taken to task for decisions in which they played no part. II Appellant claims in addition that the Medicaid Act affords her an implied cause of action against the private appellees, KNC and its administrator, Steven Vaughn. On this view, the Act and its implementing regulations confer substantive rights, such as pre-transfer notice and hearing, that are enforceable in a civil action against private facilities. We again disagree. The threshold question is whether Congress intended to create a judicially enforceable cause of action between Medicaid residents and their private nursing homes. E.g., Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981); Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 15, 101 S.Ct. 1531, 1538, 67 L.Ed.2d 694 (1981); Universities Research Association, Inc. v. Coutu, 450 U.S. 754, 770, 101 S.Ct. 1451, 1461, 67 L.Ed.2d 662 (1981); Touche Ross & Co. v. Redington, 442 U.S. 560, 578, 99 S.Ct. 2479, 2490, 61 L.Ed.2d 82 (1979); see Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975). Appellant has pointed to nothing in either the statute or the legislative history suggesting that Congress intended to create such a remedy. Instead, appellant argues that her right to sue under the Act arises by implication from the availability of section 1983 suits against states for the violation of substantive rights under the Social Security Act. See, e.g., Maine v. Thiboutot, 448 U.S. 1, 5-6, 100 S.Ct. 2502, 2504-05, 65 L.Ed.2d 555 (1980). Since section 1983 could not support claims against states absent an underlying enforceable statutory right, the theory runs, the Act must furnish substantive rights enforceable in civil suits between private parties. We need not address the many troubling issues raised by appellant’s ipso facto reasoning. Suffice it to say that the theory is nothing more than an imprecise bootstrap for the argument that Congress intended to create a private cause of action under the Act enforceable by residents against their private nursing homes. Absent any direct evidence of this intent, appellant has no federal cause of action against-the private appellees. “The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide.” California v. Sierra Club, 451 U.S. 287, 297, 101 S.Ct. 1775, 1781, 68 L.Ed.2d 101 (1981); see also Perry v. Housing Authority of Charleston, 664 F.2d 1210, 1213, 1217 (4th Cir.1981). Such remedies are for Congress to state or to clearly imply, not for us to infer. In a related vein, appellant also contends that if we do not construe the Act to allow private suits such as hers, then the Act will have created rights with no remedies — a result Congress clearly could not have intended. Even if we acknowledge, however, that the Act creates some substantive rights, see generally O’Bannon v. Town Court Nursing Center, 447 U.S. 773, 784-88, 100 S.Ct. 2467, 2474-76, 65 L.Ed.2d 506 (1980) (dismissing “contours of the right[s] conferred by the [Medicaid] statutes and regulations”), the statute does contain numerous provisions short of judicial enforcement that are designed to redress recipients’ grievances. For example, a recipient whose claim for assistance is denied or unreasonably delayed has a right to a hearing before the state Medicaid agency. 42 U.S.C. § 1396a(a)(3). Nursing facilities that fail to meet the requirements of 42 U.S.C. § 1395x0 (skilled nursing facilities) or § 1396d(c) (intermediate care facilities) face termination of their certification to participate in the Medicaid program or suspension of payments. Id. § 1396a(i). The state health agency must periodically inspect nursing facilities to determine if deficiencies exist. Id. § 1396a(a)(26). If the state violates any of the federal statutory or regulatory requirements, a recipient’s remedy is against either the state directly, where the act or omission has caused the grievance, see, e.g., Alabama Nursing Home Association v. Harris, 617 F.2d 388, 396 (5th Cir.1980), or against the federal agency charged with enforcing the Medicaid Act, HHS. See, e.g., Pennhurst, 451 U.S. at 28, 101 S.Ct. at 1545; Estate of Smith v. Heckler, 747 F.2d 583, 589 (10th Cir.1984); 42 U.S.C.A. § 1396b(g)(7) (West Supp.1985). The Medicaid system is a cooperative federal-state venture, see Harris v. McRae, 448 U.S. 297, 308, 100 S.Ct. 2671, 2683, 65 L.Ed.2d 784 (1980); Michael Reese Physicians & Surgeons, S.C. v. Quern, 606 F.2d 732, 735 (1979), adopted en banc, 625 F.2d 764 (7th Cir.1980) (per curiam), cert. denied, 449 U.S. 1079, 101 S.Ct. 860, 66 L.Ed.2d 802 (1981), and if a state chooses to participate, it stands to lose its federal funding if it fails to comply with the federal statute and regulations, Schweiker v. Gray Panthers, 453 U.S. 34, 36-37, 101 S.Ct. 2633, 2636, 69 L.Ed.2d 460 (1981); Mississippi Hospital Association, Inc. v. Heckler, 701 F.2d 511, 515 (5th Cir.1983); Alabama Nursing Home Association, 617 F.2d at 396. The Act contemplates certain kinds of judicial enforcement to secure certain kinds of individual rights; it does not envision suit by a recipient against her private provider of services. "The present situation is typical of congressional plans in which the primary financial and regulatory relationship is between the federal government and participating states; in such cases, the states retain chief enforcement responsibilities, while the federal agency oversees the sufficiency and efficacy of the states’ efforts. See, e.g., Pennhurst, 451 U.S. at 11-14,101 S.Ct. at 1536-38; McRae, 448 U.S. at 308-09, 100 S.Ct. at 2683-84; Rosado v. Wyman, 397 U.S. 397, 420, 90 S.Ct. 1207, 1221, 25 L.Ed.2d 442 (1970); King v. Smith, 392 U.S. 309, 317, 88 S.Ct. 2128, 2133, 20 L.Ed.2d 1118 (1968). Private providers of services, such as the nursing home in this case, derive their obligations from state law and through their contractual agreements with the states, not from title XIX. O ’Bannon v. Town Court Nursing Center, 447 U.S. 773, 787 & n. 20, 100 S.Ct. 2467, 2476 & n. 20, 65 L.Ed.2d 506 (1980); see Bumpus v. Clark, 681 F.2d 679, 682 (1982), withdrawn as moot, 702 F.2d 826 (9th Cir.1983). If appellant merits relief, it lies in these state-based sources. Ill The judgment of the district court is AFFIRMED. . Appellant also sued several other state officials as well as the Secretary of the United States Department of Health and Human Services. She does not, however, contest the dismissal of her claims against these defendants. . Because our holding rests on the absence of action under color of state law, we need not address the nature of the substantive rights available through the Social Security Act that are enforceable against the state under § 1983. See Taylor, 685 F.2d at 988; cf. Mitchell v. Johnston, 701 F.2d 337, 346 (5th Cir.1983) (considering adequacy of state’s compliance with Medicaid Act); Kimble v. Solomon, 599 F.2d 599, 604 (4th Cir.) (considering adequacy of state's compliance with Medicaid regulations), cert. denied, 444 U.S. 950, 100 S.Ct. 422, 62 L.Ed.2d 320 (1979). . Appellant asserts that Blum concerned state action solely for purposes of the fourteenth amendment, without regard to a state’s denial of federal statutory rights under § 1983. Brief for Appellant at 18; see Blum, 457 U.S. at 993, 102 S.Ct. at 2780. Inferring that the appellant’s distinction is meant to define state action more narrowly where constitutional as opposed to statutory deprivations are alleged, we are nonetheless unprepared to say either that the dichotomy holds water or that it is necessitated by the case law. Section 1983’s under-color-of-law requirement may not be congruent with state action, but the fact that these state appellees had nothing to do with Ms. Stewart’s transfer makes this an inappropriate case for confronting so elusive an issue. Cf. id. at 1012 n. 1, 102 S.Ct. at 2790 n. 1 (Brennan, J., dissenting); Frazier, at 1283 n. 7. . Since appellant's transfer was not occasioned by any acts or omissions of the state appellees, we need not consider the adequacy or inadequacy of state administrative procedures regarding such transfers. . The district court misapplied our holding in Taylor to dismiss plaintiffs Medicaid Act claims against the private defendants. In Taylor, we affirmed the dismissal of similar claims against state defendants because there was no state action for purposes of § 1983. 685 F.2d at 688. Since appellant argues for an implied cause of action against private parties, however, this issue cannot be resolved on the ground that proved dispositive in Taylor, where § 1983 was the exclusive statutory route for securing state compliance with the Social Security Act. See Maine v. Thiboutot, 448 U.S. 1, 6, 100 S.Ct. 2502, 2505, 65 L.Ed.2d 555 (1980). . Indeed, appellant concedes that "the legislative history of the Medicaid Act does not explicitly state the Congressional intent with regard to a private cause of action.” Reply Brief for Appellant at 10. While a silent legislative history does not necessarily preclude the existence of an implied remedy, Cannon v. University of Chicago, 441 U.S. 677, 694, 99 S.Ct. 1946, 1956, 60 L.Ed.2d 560 (1979) (quoting Cort v. Ash, 422 U.S. 66, 82, 95 S.Ct. 2080, 2089, 45 L.Ed.2d 26 (1975)), neither does congressional silence create a presumption in favor of a judicial remedy, Perry v. Housing Auth. of Charleston, 664 F.2d 1210, 1213 (4th Cir.1981). The only “rights” cited by appellant appear in the federal regulations and protect, among other things, a patient's ability to refuse medication, to be transferred for good cause, and to receive adequate notice and pre-transfer preparation. 42 C.F.R. § 405.1121(k); see also id. § 442.311 (ICF patients' bill of rights). As we note below, these regulatory rights are enforceable by means other than a civil suit under the Medicaid Act against a private provider of services. In any event, the federal regulations cannot themselves create a cause of action; this is a job for the legislature. Cf. Marshall v. Gibson’s Prods., 584 F.2d 668, 677 (5th Cir.1979) (“A grant of federal rulemaking power is not authority to create federal jurisdiction. That authority lies solely with Congress.” (footnote omitted)); Roberts v. Cameron-Brown Co., 556 F.2d 356, 360 (5th Cir.1977) (administrative handbook could not support an implied cause of action absent independent basis in statute). . Although we sympathize with the concern over “transfer trauma” that often accompanies the displacement of elderly and infirm nursing home residents, title XIX simply does not contain the sort of substantive protection appellant seeks. The most nearly applicable statutory provision appears at 42 U.S.C. § 1396a(a)(19), which requires that a state plan for medical assistance provide such safeguards as may be necessary to assure that eligibility for care and services under the plan will be determined, and such care and services will be provided, in a manner consistent with simplicity of administration and the best interests of the recipients!!] See also id. § 1396a(a)(33) (providing that state health agency must establish plan consistent with federal regulations for reviewing quality of funded care and services). As the Ninth Circuit has observed, however, Section I396a(a)(19) is not the sort of specific condition for receipt of federal funds which can be said to create substantive rights in Medicaid recipients____ Section 1396a(a)(19) speaks to two sometimes conflicting goals: simplicity of administration and the best interests of the recipients. Whether a state plan strikes a proper balance between the two is a decision better left to the Department of Health and Human Services and the state agencies responsible for implementing Title XIX. Bumpus v. Clark, 681 F.2d 679, 683 (1982), withdrawn as moot, 702 F.2d 826 (9th Cir.1983); see also Punikaia v. Clark, 720 F.2d 564, 570 (9th Cir.1983), cert. denied,— U.S.-, 105 S.Ct. 83, 83 L.Ed.2d 30 (1984). . We note that appellant has specifically abjured some of these avenues. Appellant stated below that she did not seek cancellation of KNC's contract, Record vol. 2, at 205, nor did she seek cancellation of the state's Medicaid certification. Moreover, appellant does not raise on appeal the dismissal of her claim against HHS. . In light of our decision today, we further hold that the district court did not abuse its discretion by dismissing without prejudice appellant’s pendent state claims. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_civproc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. Sarah HARMAN, Samuel Golden, Emery Sugar, et al., Plaintiffs-Appellees, v. LYPHOMED, INCORPORATED, John N. Kapoor, Neil Gurwara, et al., Defendants. Appeal of ROBERT S. ATKINS AND ASSOCIATES, Robert D. Allison, Stull, Stull & Brody, Much, Shelist, Freed Denenberg, Ament & Eiger, Berger & Montague, Barrack, Rodos & Bacine, Milberg, Weiss, Bershad, Specthrie & Lerach, Plaintiff Class Counsel-Appellants. No. 90-2032. United States Court of Appeals, Seventh Circuit. Argued June 10, 1991. Decided Oct. 9, 1991. As Amended Oct. 30, 1991. Sarah Harman, Samuel Golden, Emery-Sugar, Emil Sugar, Joseph Harris and Barbara Kay Ament, pro se. John W. Rotunno, William R. Carney, John B. Bitner, Larry L. Thompson, Bell, Boyd & Lloyd, Chicago, Ill., for defendants. Robert D. Allison, pro se. Michael P. Malakoff, argued, Berger, Ka-petan, Malakoff & Myers, Pittsburgh, Pa., for appellant Robert D. Allison. Michael J. Freed, Michael B. Hyman, Much, Shelist, Freed, Denenberg, Ament & Eiger, Chicago, Ill., for appellants. Carole A. Broderick, Berger & Montague, pro se. Leonard Barrack, Barrack, Rodos & Ba-cine, pro se. David J. Bershad, Jerome Congress, Mil-berg, Weiss, Bershad, Specthrie & Lerach, pro se. Geoffrey P. Miller, Chicago, Ill., for Mil-berg, Weiss, Bershad, Specthrie & Lerach. Mark L. Levine, Kirkland & Ellis Chicago, Ill., for appellant Stull, Stull & Brody. Jules Brody, Stull, Stull & Brody, pro se. Robert S. Atkins, pro se. Robert E. Williams, Coleman & Associates, Geoffrey P. Miller, Chicago, Ill., for appellant Robert S. Atkins and Associates. Before CUDAHY, COFFEY and FLAUM, Circuit Judges. CUDAHY, Circuit Judge. Out of a $10.4 million settlement fund, the district court awarded plaintiffs’ counsel $950,000 in fees and $121,277 in expenses, the total of which — $1,071,277—is about 10.3 percent of the fund. On the attorneys’ motion for reconsideration, the court increased the fees to $1,050,000, plus the $121,277 in expenses. Counsel had requested $2,997,000 in fees and $131,900 in expenses. In making the award, the district court relied on the widely accepted lodestar-and-multiplier method and refused to adopt the percentage-of-the-fund approach. The court also declined to award a multiplier. On appeal the attorneys suggest adoption of the percentage-of-the-fund method as a rule of law in common fund cases. They also argue that the district court’s methodology for computing the lodestar figure was improper, that the district court used an improper average for the attorneys’ claimed hourly rates, that class counsel is entitled to a multiplier and that the court improperly denied expenses for computer-assisted legal research. I. The underlying litigation was a class action that consolidated several individual suits and a derivative suit against Ly-phomed for alleged violations of section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b) (1988). The complaint alleged fraudulent disclosures relating to product development and quality control. In 1987 the Food and Drug Administration was investigating alleged deficiencies in the firm’s quality control measures and had alerted the company to possible violations of the Food, Drug and Cosmetic Act. This case was filed in January 1988. Discovery ensued, substantial settlement negotiations began in November 1988, a memorandum of understanding was reached in April 1989 and the parties entered a settlement stipulation in June 1989. On December 21, 1989, the district court approved the $10.4 million settlement. Plaintiffs’ counsel then sought fees and expenses from the common fund. In their December 18, 1989, request, counsel asked for $2,997,000 in fees, or just under thirty percent of the total. They also calculated a lodestar of $1,376,423 and suggested a multiplier of 2.177, yielding the same total. The attorneys claimed that the amount was fair and reasonable and that it did not exceed the thirty percent cap promised to class members. Counsel also requested $131,899.93 in expenses. Documentation of the fee request included summaries of expended time, listings of current hourly rates, work descriptions, biographies, schedules of expenses and depositions from other attorneys attesting to the rates. The request covered sixty-one attorneys — thirty-one partners, twenty-eight associates and two student interns — representing four Chicago, four New York and two Philadelphia law firms. The district court’s decision of February 27, 1990, 734 F.Supp. 294, begins with four assumptions. The first is that the substantive reforms that took place at Lyphomed were the result of the FDA enforcement action and not the class action. Second, the court believed that the settlement was not the “extraordinary damage recovery” claimed by counsel. Third, the court considered it a strike against counsel that the settlement had been structured in a way that might hurt class members holding Ly-phomed stock; whether true or not, the court thought it counsel’s duty to mention this aspect of the settlement. Finally, the court observed that the case “did not involve protracted litigation,” although discovery was somewhat vigorously resisted by the defense. Reviewing the time and rate submissions, the court clearly suspected overbill-ing. The order observes that “a large number of attorneys [are] billing a substantial amount of time and it appears that such circumstances resulted in otherwise unnecessary duplication of effort.” Order at 4. Further, the court requested that counsel provide more detailed billing data for three sample periods of the litigation: preparation of the class certification brief; final settlement approval; and court appearances for twenty-six status and motion calls. The court remained somewhat dissatisfied with the submissions but calculated needed subtotals and totals on its own. To determine the award, the court first calculated a lodestar. Examining the first of the three sample periods, the judge concluded that class certification preparation showed that “much of counsel’s bill consists of unnecessary duplication of work brought about by having an excessive number of attorneys involved in the case.” Order at 7. The judge reduced the requested $58,591 to $30,000. The court then examined the submissions relating to the memorandum in support of final settlement and decided that the $40,441 billed was overstated; he granted $20,000 as “more than adequate compensation for the memorandum.” Id. Finally, the court detected ov-erbilling in the $24,406 requested for ninety-nine hours of court appearance involving twenty-six status and motion calls. Included in the request were court appearances on dates for which the docket showed no court activity. After eliminating the hours of a New York partner the judge thought unwarranted and reducing the rates of a New York associate and two Chicago partners, the court allowed $14,897 of the originally requested $24,406 for appearances. Id. at 8. Based on the 47.4 percent reduction (to $64,897) in the three samplings’ total lodestar request of $123,-438, the court permitted 52.6 percent of the total lodestar requested for the case, netting $783,491. The judge then took another tack. He assumed that 3,500 hours represented a reasonable number of associate hours for the case, which is close to the requested associate hours of 3,472. He also assumed — on what basis, the opinion does not say — that partners should have spent thirty percent as much time as associates, and that paralegals should have spent fifty percent as much. (This 3:10:5 ratio we will call the “staffing ratio.”) Assuming rates of $225 for partners, $175 for associates and $60 for paralegals as “more than adequate,” the court calculated a lodestar of $236,250 for partners, $612,000 for associates and $105,000 for paralegals (total = $953,750). The court believed this a bit high and rounded the figure to $950,000, which the court accepted as the lodestar for the case. The court then assessed the arguments for a muliplier. Counsel contended that a multiplier of more than two was appropriate to attract counsel to contingent, complex litigation of this type. The court concluded that “[s]uch an argument is ludicrous as applied to this case” because plenty of attorneys had found the case worth their time. Id. at 10. Also believing that the quality and complexity of the work had been compensated by the high hourly rates and number of hours, the court denied any multiplier. The court then considered the attorneys’ suggestion to use the percentage-of-the-fund method for calculating the fees. The attorneys argued that the percentage method was simpler and less time-consuming and avoided the lodestar’s incentive to bill excessive hours. But the court believed the lodestar-and-multiplier approach manageable to apply and found unpersuasive the fact that the lodestar method generally results in awards of twenty to thirty percent. The court also found undesirable incentive features in the percentage method: “A percentage award provides incentive to the attorneys to settle relatively cheaply early in the litigation since it can provide them with a larger hourly fee and then free them up to pursue more cases that they can also settle early in the litigation for less than the best value for the class.” Id. at 13 (footnote omitted). The court concluded that in the absence of controlling precedent, it would continue to apply the lodestar-and-multiplier method. As an afterthought, the court remarked that even if required to use the percentage method, a percentage lower than the traditional 20 percent floor would be appropriate in view of the relatively few risks in this case. The court also granted counsel’s request for $131,900 in expenses, except for $10,-623 in computer-assisted research fees, resulting in a total of $121,277. The court believed the computer expense was adequately reflected in the attorney’s fees. On the attorneys’ motion for reconsideration, the court increased the hourly rates used in the staffing ratio-based lodestar to the averages of those requested ($247 for partners, $190 for associates and $71 for paralegals), which increased the lodestar by $100,000. The court did not alter its judgment regarding a multiplier and still excluded the computer-assisted research expense. The final award was therefore $1,050,000 in fees and $121,277 in expenses, plus interest. II. A. Standard of Review Our standard of review in fees cases is a well-established abuse of discretion standard. Dutchak v. Central States, S.E. & S.W. Areas Pension Fund, 932 F.2d 591, 596 (7th Cir.1991); Skelton v. General Motors Corp., 860 F.2d 250, 257 (7th Cir.1988), cert. denied, 493 U.S. 810, 110 S.Ct. 53, 107 L.Ed.2d 22 (1989); Ustrak v. Fairman, 851 F.2d 983, 987 (7th Cir.1988). District courts are far better suited than appellate courts to assess a reasonable fee in light of the case’s history. Abuse of discretion occurs when the court reaches an erroneous conclusion of law, fails to explain a reduction or reaches a conclusion that no evidence in the record supports as rational. We will also review de novo the district court’s methodology to determine whether it reflects procedure approved for calculating awards. B. Percentage-of-the-Fund Method The lodestar method, the most widely cited description of which is found in Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167-69 (3d Cir.1973) {Lindy I), appeal following remand, 540 F.2d 102 (3d Cir.1976) {Lindy II), is regularly used in statutory fee shifting cases, see Hensley v. Eckerhart, 461 U.S. 424, 432-34, 103 S.Ct. 1933, 1938-40, 76 L.Ed.2d 40 (1983), and is frequently employed in common fund cases, see In re Folding Carton Antitrust Litigation, 84 F.R.D. 245 (N.D.Ill.1979). In a common fund case the judge exercises equitable powers to compensate attorneys from the recovery won for plaintiffs. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 257-58, 95 S.Ct. 1612, 1621-22, 44 L.Ed.2d 141 (1975). The district court declined to use the percentage method in making this award. Class counsel argue that the percentage method offers advantages that recommend it over the lodestar method in common fund cases. They argue that the lodestar method is inefficient and burdensome, citing cases where the method has been criticized. See In re Activision Sec. Litigation, 723 F.Supp. 1373 (N.D.Cal.1989) (thirty percent recovery permitted); In re Union Carbide Corp. Consumer Prod. Business Sec. Litigation, 724 F.Supp. 160, 170 (S.D.N.Y.1989) (employing lodestar approach but anticipating return to contingency-type awards) [; see also Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237, 254-59 (1985)]. At least one circuit has approved use of the percentage method in a common fund situation. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir.1989). But cf. Florida v. Dunne, 915 F.2d 542 (9th Cir.1990) (percentage or lodestar method approved). Second, they contend that the percentage method is an efficient and reasonable way to compute fees, since it requires simply discerning the appropriate percentage from similar cases and multiplying. Third, they argue that even if the lodestar method is required for fees awarded under a statutory shifting provision, it need not be used in common fund situations. Although the lodestar approach certainly has problems, we think it premature to banish it now. First, the lodestar process initially responded to concerns that a percentage approach resulted in over-compensation for attorneys. Requiring an explicit accounting of hours and rates provides greater accountability. Second, the separation of multiplier and lodestar provides — in theory at least — a means of accounting both for the hours and rate reasonable in the type of case and for the risk an attorney assumes in undertaking a case. In addition, the lodestar encourages attorneys to assess the marginal value of continuing to work on the case. Assured of recovering a “reasonable fee” if victorious, an attorney will not find it worthwhile to spend time that does not add to the value of the suit, since there is significant risk that the court will in the end disapprove such time. A frequently cited advantage to the percentage method — its alignment of class attorneys’ interests with those of the client — may, as the district court noted, encourage holding out or early settlement on the basis of the expected value of the recovery. These incentive effects are, of course, subject to many other pressures in the actual conduct of litigation, but we think that they indicate at least that the door should not be closed on lodestar awards. We therefore affirm the traditional method for calculating fees. The district court should determine the reasonable number of hours expended by the attorneys. “Reasonable” implies that the judge may reduce the hours if the number requested appears excessive compared to other cases or in light of the work. Next, the judge should determine the reasonable hourly rate allowable for each attorney or class of attorneys involved in the case. These rates should be within narrow bands of rates charged by attorneys of similar experience, competence and specialty. Multiplying the hours reasonably expended by the reasonable hourly rates produces the lodestar. Then comes the issue of multipliers. Judges describe the need for multipliers in a variety of ways, but these explanations have a common theme — compensating in a manner that provides adequate incentive for the attorney to bring this type of case. This means that the judge should view the multiplier from an ex ante perspective; that is, what size risk the attorney assumed at the outset by taking this type of case. Skelton, 860 F.2d at 258 (multiplier computation involves “retroactive calculation of the probability of success as measured at the beginning of litigation”). This requires comparing the attorney’s prospect for success with other cases of similar dimensions. After establishing the lodestar and multiplier, the judge may find it useful to compare the percentage of the fund to contingent arrangements negotiated in other cases of the same type. Because the target is an award that reflects a worthwhile ex ante arrangement for counsel, this final step is a reasonable, though not essential, “check” for the judge. We do not think the judge abused his discretion by rejecting the percentage approach. While we do not rule out use of the percentage method when the district court finds it appropriate, see Gekas v. Attorney Registration & Disciplinary Comm., 793 F.2d 846, 851-52 n. 2 (7th Cir.1986), neither do we require its use in all common fund cases. The decision of whether to use a percentage method remains in the discretion of the district court. Kirchoff v. Flynn, 786 F.2d 320, 329 n. 1 (7th Cir.1986). C. Challenges to the District Court’s Award 1.The District Court’s Methodology The attorneys challenge the district court’s use of the staffing ratio. They claim that it bears no relation to the actual hours expended by the three classes of attorneys in the case and also reflects a bias toward (generally large) law firms, which operate with lower partner/associate staffing ratios. We think that the staffing ratio was an inappropriate procedure for determining the size of the lodestar. The district court’s further assumption of 3,500 associate hours is in line with the requested number (3,472), but this seems inconsistent with the judge’s earlier conclusion from the samplings that time had been overstated. We find no support in the record for the proposition that the staffing ratio mirrors patterns in the case or litigation practice generally. The starting point for the district court’s analysis must be the reasonable number of hours the attorneys claim actually to have spent. If the hours submitted for a particular category of attorneys or a segment of work appear high, the court should adjust them accordingly. Because the district court provided inadequate explanation of the basis for the staffing ratio, it cannot support the award of fees. That said, we find no error in the district court’s use of a “sampling” procedure to estimate the number of hours appropriate for compensation. The court selected three significant segments of the litigation that it felt reflected typical attorney work in the case. It then made findings regarding the attorney billing practices and thought this likely represented billing practices for the entire litigation. The judge’s chosen procedure is a bit perplexing. The admirable precision with which the sampling was conducted appears to have been abandoned for the more amorphous staffing ratio calculations. If the lodestar fails to produce a just fee award, the court may either adjust the multiplier based on the risk involved or set the award on a percentage basis. 2. Hourly Rates The attorneys also dispute the “average” rates used by the judge in computing the lodestar. Specifically, they claim that by using the average rates for partners, associates and paralegals in the case, the judge committed legal error by not taking into account regional and experience differences that affect the rates of individual attorneys. We do not find an abuse of discretion in the judge’s calculation. The “average” rates that he accepts in the award granted on the motion for reconsideration are not hypothetical national averages, as was involved in In re Fine Paper Antitrust Litigation, 751 F.2d 562, 590-91 (3d Cir.1984). They represent the average rates requested by the classes of attorneys in the case— for example, total lodestar for partners divided by hours requested by all partners. The averaging reduces the overall compensation a bit, but counsel appear more concerned that the award does not break down the award by attorney. While this may have been our preferred method for toting up the fees, it was not an abuse of discretion for the district court to leave this job to the attorneys themselves. 3. The Multiplier Counsel contend that the district court erred in not awarding a risk multiplier. A multiplier is, within the court's discretion, appropriate when counsel assume a risk of non-payment in taking a suit. We agree that the counsel is probably entitled to a contingent multiplier, as there was some probability that the suit would not result in success for the plaintiffs. The judge’s conclusion that the case was not particularly risky does not indicate whether this is an ex ante or ex post determination. Moreover, the judge’s conclusion that “the element of complexity is adequately compensated by.the fact that increased complexity results in increased hours which produce a higher lodestar,” Order at 10-11, misses the point that the multiplier is designed to reflect the fact that, no matter how many hours were invested, there was, at the outset, the possibility of no recovery. See Skelton, 860 F.2d at 258 (discussing rationale for risk multiplier and method of assessing). We therefore must remand for reconsideration of the multiplier issue and ask the judge to assess the multiplier with regard to the probability of success in this type of litigation at the outset of the case. Multipliers anywhere between one and four, In re Cenco, Inc. Sec. Litigation, 519 F.Supp. 322, 325 (N.D.Ill.1981) (four, which is quite rare), have been approved. The level selected should, to the extent possible, be without regard to most developments during discovery and litigation because it is designed to reflect the riskiness of the case at the outset. Lindy Bros., 540 F.2d at 117. Subsequent developments affecting the case should be reflected in the hours or rates thought reasonable. D. Computer-Assisted Research The attorneys also claim that the court erred in excluding the roughly $10,-000 expended in computer-assisted research. The court felt that the expense “is part of the amount allowed for attorney’s fees.” We must reverse the district court here. Computer-assisted research fees — so long as reasonably incurred — in theory reduce the number of attorney hours otherwise needed for (presumably) more time-consuming manual research and are therefore compensable. It is, of course, within the judge’s discretion to find the expenses unreasonably incurred. III. The district court fee award is Vacated and Remanded for recalculation consistent with the discussion above. The district court's disallowance of the computer-assisted research expense is Reversed. . The figures we use, from the district court’s opinions and the attorneys’ brief, are in some cases approximate or before interest adjustments. . Class counsel has explained that the "court appearance" category also included time related to preparation for court appearances. . While a weighted average of each set of attorneys would have been more accurate, the simple average did not distort the figure badly enough to amount to an abuse of discretion. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:
sc_authoritydecision	A	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. HUDGENS v. NATIONAL LABOR RELATIONS BOARD et al. No. 74-773. Argued October 14, 1975 Decided March 3, 1976 Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and BlackmüN, Powell, and Rehnquist, JJ., joined. Powell, J., filed a' concurring opinion, in which Burger, C. J., joined, post, p. 523. White, J., filed an opinion concurring in the result, post, p. 524. Marshall, J., filed a dissenting opinion, in which BrennaN, J., joined, post, p. 525. Stevens, J., took no part in the consideration or decision of the case. Lawrence M. Cohen argued the cause for petitioner. With him on the brief were Steven R. Sender and Dow N. Kirkpatrick, II. Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Bork, William L. Patton, Peter G. Nash, John S. Irving, Patrick Hardin, and Robert A. Giannasi. Laurence Gold argued the cause for respondent Local 315, Retail & Wholesale Department Store Union, AFL-CIO. With him on the brief were Morgan Stanford and J. Albert Woll. Muton A. Smith, Richard B. Berman, Gerard C. Smetana, and Jerry Kronenberg filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal. Mr. Justice Stewart delivered the opinion of the Court. A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136, 29 U. S. C. § 151 et seq. The National Labor Relations Board concluded that it did, 205 N. L. R. B. 628, and the Court of Appeals for the Fifth Circuit agreed. 501 F. 2d 161. We granted certiorari because of the seemingly important questions of federal law presented. 420 U. S. 971. t — H The petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Co. Most of the stores, including Butler’s, can be entered only from the interior mall. In January 1971, warehouse employees of the Butler Shoe Co. went on strike to protest the company’s failure to agree to demands made by their union in contract negotiations. The strikers decided to picket not only Butler’s warehouse but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 1971, four of the striking warehouse employees entered the center’s enclosed mall carrying placards which read: “Butler Shoe Warehouse on Strike, AFL-CIO, Local 315.” The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that if they did not leave they would be arrested for trespassing. The pickets departed. The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference. with rights protected by § 7 of the Act, 29 U. S. C. § 157. Relying on this Court’s decision in Food Employees v. Logan Valley Plaza, 391 U. S. 308, the Board entered a cease-and-desist order against Hudgens, reasoning that because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner’s threat of arrest violated § 8 (a)(1) of the Act, 29 U. S. C. § 158 (a)(1). Hudgens filed a petition for review in the Court of Appeals for the Fifth Circuit. Soon thereafter this Court decided Lloyd Corp. v. Tanner, 407 U. S. 551, and Central Hardware Co. v. NLRB, 407 U. S. 539, and the Court of Appeals remanded the case to the Board for reconsideration in light of those two decisions. The Board, in turn, remanded to an Administrative Law Judge, who made findings of fact, recommendations, and conclusions to the effect that Hudgens had committed an unfair labor practice by excluding the pickets. This result was ostensibly reached under the statutory criteria set forth in NLRB v. Babcock & Wilcox Co., 351 U. S. 105, a case which held that union organizers who seek to solicit for union membership may intrude on an employer’s private property if no alternative means exist for communicating with the employees. But the Administrative Law Judge’s opinion also relied on this Court’s constitutional decision in Logan Valley for a “realistic view of the facts.” The Board agreed with the findings and recommendations of the Administrative Law Judge, but departed somewhat from his reasoning. It concluded that the pickets were within the scope of Hudgens’ invitation to members of the public to do business at the shopping center, and that it was, therefore, immaterial whether or not there existed an alternative means of communicating with the customers and employees of the Butler store. Hudgens again petitioned for review in the Court of Appeals for the Fifth Circuit, and there the Board changed its tack and urged that the case was controlled not by Babcock & Wilcox, but by Republic Aviation Corp. v. NLRB, 324 U. S. 793, a case which held that an employer commits an unfair labor practice if he enforces a no-solicitation rule against employees on his premises who are also union organizers, unless he can prove that the rule is necessitated by special circumstances. The Court of Appeals enforced the Board’s cease-and-desist order but on the basis of yet another theory. While acknowledging that the source of the pickets’ rights was § 7 of the Act, the Court of Appeals held that the competing constitutional and property .right considerations discussed in Lloyd Corp. v. Tanner, supra, “burde[n] the General Counsel with the duty to prove that other locations less intrusive upon Hudgens’ property rights than picketing inside the mall were either unavailable or ineffective,” 501 F. 2d, at 169, and that the Board’s General Counsel had met that burden in this case. In this Court the petitioner Hudgens continues to urge that Babcock & Wilcox Co. is the controlling precedent, and that under the criteria of that case the judgment of the Court of Appeals should be reversed. The respondent union agrees that a statutory standard governs, but insists that, since the § 7 activity here was not organizational as in Babcock but picketing in support of a lawful economic strike, an appropriate accommodation of the competing interests must lead to an affirmance of the Court of Appeals’ judgment. The respondent Board now contends that the conflict between employee picketing rights and employer property rights in a case like this must be measured in accord with the commands of the First Amendment, pursuant to the Board’s asserted understanding of Lloyd Corp. v. Tanner, supra, and that the judgment of the Court of Appeals should be affirmed on the basis of that standard. II As the above recital discloses, the history of this litigation has been a history of shifting positions on the part of the litigants, the Board, and the Court of Appeals. It has been a history, in short, of considerable confusion, engendered at least in part by decisions of this Court that intervened during the course of the litigation. In the present posture of the case the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two. It is to that question, accordingly, that we now turn. It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. See Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U. S. 94. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself. This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in Marsh v. Alabama, 326 U. S. 501. In Marsh, a Jehovah’s Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding Corp. It was described in the Court’s opinion as follows: “Except for [ownership by a private corporation] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town’s policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.” Id,., at 502-503. The Court pointed out that if the “title” to Chickasaw had “belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant’s conviction must be reversed.” Id., at 504. Concluding that Gulfs “property interests” should not be allowed to lead to a different result in Chickasaw, which did “not function differently from any other town,” id., at 506-508, the Court invoked the First and Fourteenth Amendments to reverse the appellant’s conviction. It was the Marsh case that in 1968 provided the foundation for the Court’s decision in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308. That case involved peaceful picketing within a large shopping center near Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center’s property in the immediate vicinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment. The Court’s opinion pointed out that the First and Fourteenth Amendments would clearly have protected the picketing if it had taken place on a public sidewalk: “It is clear that if the shopping center premises were not privately owned but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. Lovell v. Griffin, 303 U. S. 444 (1938); Hague v. CIO, 307 U. S. 496 (1939); Schneider v. State, 308 U. S. 147 (1939); Jamison v. Texas, 318 U. S. 413 (1943). The essence of those opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.” 391 U. S., at 315. The Court’s opinion then reviewed the Marsh case in detail, emphasized the similarities between the business block in Chickasaw, Ala., and the Logan Valley shopping center, and unambiguously concluded: “The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh.” 391 U. S., at 318. Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court. There were three dissenting opinions in the Logan Valley case, one of them by the author of the Court’s opinion in Marsh, Mr. Justice Black. His disagreement with the Court’s reasoning was total: “In affirming petitioners’ contentions the majority opinion relies on Marsh v. Alabama, supra, and holds that respondents’ property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets, alleys, sewers, stores, residences, and everything else that goes to make a town. ... I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama. There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a ‘town.’ ” 391 U. S., at 330-331 (footnote omitted). “The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i. e., ‘residential buildings, streets, a system of sewers, a sewage disposal plant and a “business block” on which business places are situated.’ 326 U. S., at 502. I can find nothing in Marsh which indicates that if one of these features is present, e. g., a business district, this is sufficient for the Court to confiscate a part of an owner’s private property and give its use to people who want to picket on it.” Id., at 332. “To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country. . . .” Id., at 332-333. Four years later the Court had occasion to reconsider the Logan Valley doctrine in Lloyd Corp. v. Tanner, 407 U. S. 551. That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968 five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, “to avoid arrest.” Id., at 556. They subsequently brought suit in a Federal District Court, seeking declaratory and injunctive relief. The trial court ruled’ in their favor, holding that the distribution of handbills on the shopping center’s property was protected by the First and Fourteenth Amendments. The Court of Appeals for the Ninth Circuit affirmed the judgment, 446 F. 2d 545, expressly relying on this Court’s Marsh and Logan Valley decisions. This Court reversed the judgment of the Court of Appeals. The Court in its Lloyd opinion did not say that it was overruling the Logan Valley decision. Indeed, a substantial portion of the Court’s opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the hand-billing in Lloyd, the picketing in Logan Valley had been specifically directed to a store in the shopping center and the pickets had had no other reasonable opportunity to reach their intended audience. 407 U. S., at 561-567. But the fact is that the reasoning of the Court’s opinion in Lloyd cannot be squared with the reasoning of the Court’s opinion in Logan Valley. It matters not that some Members of the Court may continue to believe that the Logan Valley case was rightly decided. Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And in the performance of that duty we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court’s decision in the Lloyd case. Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan Valley, 407 U. S., at 562-563, 565; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley: “The basic issue in this case is whether respondents, in the exercise of asserted First Amendment rights, may distribute handbills on Lloyd’s private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only....” 407 U. S., at 567. “Respondents contend . . . that the property of a large shopping center is ‘open to the public,’ serves the same purposes as a ‘business district’ of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town. “The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semiofficial municipal functions as a delegate of the State. In effect, thé owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power.” Id., at 568-569 (footnote omitted). “We hold that there has been no such dedication of Lloyd’s privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. . . Id., at 570. If a large self-contained shopping center is the functional equivalent of a municipality, as Logan Valley held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech’s content. For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, see Cox v. New Hampshire, 312 U. S. 569; Poulos v. New Hampshire, 345 U. S. 395, and may even forbid altogether such use of some of its facilities, see Adderley v. Florida, 385 U. S. 39; what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression, Erznoznik v. City of Jacksonville, 422 U. S. 205. “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95. It conversely follows, therefore, that if the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Co. We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this. Ill From what has been said it follows that the rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Under the Act the task of the Board, subject to review by the courts, is to resolve conflicts between § 7 rights and private property rights, “and to seek a proper accommodation between the two.” Central Hardware Co. v. NLRB, 407 U. S., at 543. What is “a proper accommodation” in any situation may largely depend upon the content and the context of the § 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspicuous contrast to the duty of a court in applying the standards of the First Amendment, which requires “above all else” that expression must not be restricted by government “because of its message, its ideas, its subject matter, or its content.” In the Central Hardware case, and earlier in the case of NLRB v. Babcock & Wilcox Co., 351 U. S. 105, the Court considered the nature of the Board's task in this area under the Act. Accommodation between employees’ § 7 rights and employers’ property rights, the Court said in Babcock & Wilcox, “must be obtained with as little destruction of one as is consistent with the maintenance of the other.” 351 U. S., at 112. Both Central Hardware and Babcock & Wilcox involved organizational activity carried on by nonemploy-ees on the employers’ property. The context of the § 7 activity in the present case was different in several respects which may or may not be relevant in striking the proper balance. First, it involved lawful economic strike activity rather than organizational activity. See Steelworkers v. NLRB, 376 U. S. 492, 499; Bus Employees v. Missouri, 374 U. S. 74, 82; NLRB v. Erie Resistor Corp., 373 U. S. 221, 234. Cf. Houston Insulation Contractors Assn. v. NLRB, 386 U. S. 664, 668-669. Second, the § 7 activity here was carried on by Butler’s employees (albeit not employees of its shopping center store), not by outsiders. See NLRB v. Babcock & Wilcox Co., supra, at 111-113. Third, the property interests impinged upon in this case were not those of the employer against whom the § 7 activity was directed, but of another. The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights “with as little destruction of one as is consistent with the maintenance of the other/’ The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. See NLRB v. Babcock & Wilcox, supra, at 112; cf. NLRB v. Erie Resistor Corp., supra, at 235-236; NLRB v. Truckdrivers Union, 353 U. S. 87, 97. “The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board.” NLRB v. Weingarten, Inc., 420 U. S. 251, 266. For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board, so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone. It is so ordered. Mr. Justice Stevens took no part in the consideration or decision of this case. The Butler warehouse was not located within the North DeKalb Shopping Center. Section 7, 29 U. S. C. § 157, provides: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158 (a) (3) of this title.” Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 192 N. L. R. B. 671. Section 8(a)(1) makes it an unfair labor practice for “an employer” to “restrain, or coerce employees” in the exercise of their § 7 rights. While Hudgens was not the employer of the employees involved in this case, it seems to be undisputed that he was an employer engaged in commerce within the meaning of §§ 2 (6) and (7) of the Act, 29 ü. S. C. §§ 152 (6) and (7). The Board has held that a statutory “employer” may violate § 8 (a) (1) with respect to employees other than his own. See Austin Co., 101 N. L. R. B. 1257, 1258-1259. See also § 2 (13) of the Act, 29 U. S. C. §152 (13). Hudgens v. Local 315, Retail, Wholesale & Dept. Store Union, 205 N. L. R. B. 628. Insofar as the two shopping centers differed as such, the one in Lloyd more closely resembled the business section in Chickasaw, Ala.: “The principal differences between the two centers are that the Lloyd Center is larger than Logan Valley, that Lloyd Center contains more commercial facilities, that Lloyd Center contains a range of professional and nonprofessional services that were not found in Logan Valley, and that Lloyd Center is much more intertwined with public streets than Logan Valley. Also, as in Marsh, supra, Lloyd’s private police are given full police power by the city of Portland, even though they are hired, fired, controlled, and paid by the owners of the Center. This was not true in Logan Valley.” 407 U. S., at 575 (Marshall, J., dissenting). See id., at 570 (Marshall, J., dissenting). This was the entire thrust of Mr. Justice Marshall’s dissenting opinion in the Lloyd case. See id., at 584. Mr. Justice White clearly recognized this principle in his Logan Valley dissenting opinion. 391 U. S., at 339. The Court has in the past held that some expression is not protected “speech” within the meaning of the First Amendment. Roth v. United States, 354 U. S. 476; Chaplinsky v. New Hampshire, 315 U. S. 568. A wholly different balance was struck when the organizational activity was carried on by employees already rightfully on the employer’s property, since the employer’s management interests rather than his property interests were there involved. Republic Aviation Corp. v. NLRB, 324 U. S. 793. This difference is “one of substance.” NLRB v. Babcock & Wilcox Co., 351 U. S., at 113. This is not to say that Hudgens was not a statutory “employer” under the Act. See n. 3, supra. 351 U. S., at 112. This language was explicitly reaffirmed as stating “the guiding principle” in Central Hardware Co. v. NLRB, 407 U. S. 539, 544. 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_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. UNITED STATES v. SPARKS. No. 5532. Circuit Court of Appeals, Seventh Circuit. Nov. 27, 1935. James R. Fleming, U. S. Atty., of Fort Wayne, Ind., Will G. Beardslee, Director, Bureau of War Risk Litigation, of Washington, D. C, Wilbur C. Pickett and Randolph C. Shaw, Sp. Assts. to Atty. Gen., Luther M. Swygert, Asst. U. S. Atty., of Hammond, Ind., and Young M. Smith, of Washington, D. C., for the. United States. Jesse W. Calhoon, of Kokomo, Ind., and Remster A. Bingham, of Indianapolis, Ind., for appellee. Before SPARKS and ALSCHULER, Circuit Judges, and BALTZELL, District Judge. SPARKS, Circuit Judge. This was an action upon a war risk insurance policy issued to appellee while he was in the United States military service from September 19, 1917, until his discharge on March 21, 1919. The policy insured appellee against death and permanent disability. The premiums had been paid until December, 1925, at which time the insurance lapsed for non-payment of premiums. It was reinstated in the following month upon certain conditions hereinafter referred to, which included appellee’s representation as to his condition at that time. In July, 1927, the insurance .was converted by appellee from term form into a government life contract, which, upon rendition of the judgment in this cause, was by order of the court surrendered and can-celled. Appellee had been paid installments on his term insurance contract from December, 1919, until February, 1922. By virtue of those payments the contract of insurance had been reduced to $9,210. Section 301, World War Veterans’ Act 1924, as amended by Act July 3, 1930, § 22, 38 U.S.C.A. § 512; and section 302 of the same act of 1924, 38 U.S.C.A. § 513. The record discloses that when appellee entered the service he had received a partial high school education and had been engaged in farming from which he had received annually on the average of $400, and his health previously had been fair. During his service in France he was gassed, requiring hospitalization both in France and in the United States. He was given a regular, and not a disability, discharge with the notation of “10% disabled.” After he left the army, he lived with his father for several years and did occasional work with a wheat threshing crew, paper hanging, house painting, and automobile repairing, and in the fall of 1921 he engaged in the garage business with a partner to whom he sold out a few months later. He was married in 1922 and has five children. In the spring of that year he moved on a farm of ninety-fivé acres which he rented from his father-in-law under an agreement for an even division of the grain raised, the appellee to retain the other produce and the profits of the livestock. The agreement required him to furnish a hired man, who, it was not denied, did most of the work. That arrangement continued until the father-in-law’s death in 1930, at which time appellee’s wife inherited a half interest in the farm and purchased the other half. Since that time, appellee has not been able to make wages out of the farm, and rented it out by the field. Since 1923 he spent about one hundred days doing auto repair work. He received between $35 and $53 a month compensation during the period he managed the farm, and at one period of that time he received as much as $100 a month. His savings were not used to purchase the farm, but were used to pay for his physician’s services in addition to the services of the government physicians. The medical testimony of appellee disclosed that in 1919 an X-ray examination showed a tubercular condition of appellee’s lung. In 1924 he had a tubercular affection in the upper left apex of one lung, and a curvature of the spine attributed to a tubercular condition. At that time, the diagnosis disclosed pulmonary tuberculosis and chronic thyroiditis, and the prognosis was recorded as fair. The curvature of the spine grew progressively worse until the time of trial, and one doctor testified that it would be progressively worse in the future. Reports of medical examinations during 1924, submitted by appellee, disclose the following diagnoses: April 9, 1924: Pulmonary tuberculosis, chronic incipient, inactive; chronic emphysema. November 14, 1924: Chronic pulmonary tuberculosis, minimal, inactive; pulmonary emphysema; marked kyphosis (curvature) dorsal spine. November 24, 1924: Chronic pulmonary tuberculosis; chronic thyroiditis. July 31, 1925: Hyperthyroidism. March 23, 1926: Hyperthyroidism, moderately severe; kyphosis, thoracic spine, secondary to chest condition. April 18, 1927: X-ray: kyphosis of dorsal vertebra with some arthritic and hyperthrophic changes involving 8th, 9th and 10th. Changes not characteristic of tuberculosis. April 18, 1927: Toxic thyroid moderate; trauma to dorsal cord from kyphosis which is progressive; pulmonary pathology —tuberculosis, minimal, arrested; emphysema, mild. May 9, 1928: Trauma to dorsal cord by kyphosis, secondary to chest condition; no thyroid condition shown. June 11, 1931: Kyphosis marked lumbar region: hyperthyroidism moderate; held as pulmonary tuberculosis arrested. In January, 1926, when appellee filed his application for reinstatement of his lapsed insurance, he stated as one consideration for the reinstatement that he was then in as good health as at the time of the due date of the premium in default, and that at that time he was not totally and permanently disabled. Dr. Carter, a witness for appellee, who examined him on November 14, 1924, and whose diagnosis is hereinbefore referred to, testified that appellee’s disability on November 14, 1924, was temporary and partial. At the trial of this cause appellee’s witness, Dr. Flanagan, testified that he had examined appellee in the early spring of 1924, and had seen him once every two weeks from that time until the time of the trial, and during that time had examined him six or seven times. Thereupon, over appellant’s objection, the witness was permitted to testify that at the time of each of those examinations appellee was not able to pursue any substantially gainful occupation, and do it with a reasonable degree of continuity. Appellant’s first contention is that the court erred in permitting Dr. Flanagan to thus state his opinion. This contention must be sustained under the ruling in United States v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617. See, also, United States v. Price (C.C.A.) 77 F.(2d) 345; United States v. White (C.C.A.) 77 F.(2d) 757; Hamilton v. United States (C.C.A.) 73 F.(2d) 357. Appellee contends, however, that appellant reserved no exception to the court’s ruling on the question which related to appellee’s ability to pursue a substantially gainful occupation with any reasonable degree of continuity in the spring of 1924. Technically, that is true, but that question and answer were immediately followed by substantially the identical question with respect to the time from the spring of 1924 to the time of trial. The same objection was urged to it as was made to the first, and upon the court’s adverse ruling, an exception was saved. Unquestionably, that was a sufficient basis for the assignment of error with respect to the second question, and we think also the first. In any event, we are convinced that under the circumstances it is a plain error which we are not warranted in ignoring. It is further urged by appellee that in the Spaulding Case, supra, it is not disclosed that the reversal was based upon the court’s ruling in admitting the evidence, but because of a lack of evidence to support the verdict. While the court did reverse the judgment stating that the facts conclusively established that the soldier did not become totally and permanently disabled before his policy lapsed, yet in language quite as clear, it held that it was error to admit the evidence. We think it is fair to assume that the court reversed the judgment for both reasons. It would have been futile to order a new trial for the purpose of correcting the error with respect to the admission of evidence, because there was a lack of evidence to support a verdict for appellee in any event. It can not be said fairly that the court in that case considered the admission of the doctor’s testimony a harmless error. In the case at bar we can by no means say that the admission was harmless. The entire evidence is of such a character that the jury might easily have concluded that the doctor’s testimony constituted the preponderance upon which their verdict was based. Appellant further contends that there was no substantial evidence to support the verdict on the question of total, permanent disability. From a reading of the entire record, exclusive of the doctor’s conclusions as to appellee’s total, permanent disability, we are not willing to say as a matter of law that there was no substantial evidence from which it might be reasonably said that he was or was not totally and permanently disabled at the expiration of his policy. We think there should be a re-trial of the facts. For the error in admission of the evidence, the judgment is reversed and the cause is remanded with instructions to grant a new trial and for further proceedings not inconsistent with this opinion. 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_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 16175. United States Court of Appeals Seventh Circuit. March 26, 1969. Lee C. Shaw, Walter P. Loomis, Jr., Chicago, 111., George G. Gallantz, New York City, for petitioner. Marcel Mallet-Prevost, Asst. Gen. Counsel, Richard S. Rodin, Warren M. Davison, Attys., N.L.R.B., Washington, D. C., for respondent. Before CASTLE, Chief Judge, MAJOR and HASTINGS, Senior Circuit Judges, and KILEY, SWYGERT, FAIRCHILD, CUMMINGS and KERNER, Circuit Judges, KILEY, Circuit Judge. The National Labor Relations Board found that State Farm Mutual Automobile Insurance Company violated Sections 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Insurance Workers International Union, AFL-CIO, which had been certified to represent a unit of employees. The Board ordered the Company to bargain with the Union. The Company petitioned this court to review and set aside the Board’s order, and the Board cross-petitioned for enforcement of its order. A panel of this court, in an opinion (one judge dissenting) issued August 8, 1968, set aside the Board’s order. Subsequently, this court granted the Board’s petition for rehearing en banc. We now enforce the Board’s order. Petitioner is a multi-state insurance company. All of its business decisions, such as job benefits, holidays, overtime, sick leave, recruitment and salary ranges are made at its home office in Blooming-ton, Illinois. Petitioner is divided into twenty-one regions across the country. The Northeastern Region, pertinent to this ease, comprises New York, New Jersey, and the New England states, and its headquarters is at Wayne, New Jersey. It is headed by a regional vice-president assisted by two deputy regional vice-presidents. The vice-president directs all operations in the region, including recruitment, interviewing job applicants, promotions, and salaries. The Northeastern Region is divided into four divisions, including two automobile insurance divisions, one covering New York and the other New Jersey and New England. A division manager, who is responsible for overseeing the claim processing operations of the company, heads each division. He also makes salary and employment recommendations to the regional vice-president. The New York automobile division is divided into four districts, each headed by a division claims superintendent, who is in charge of about five offices and supervises about thirty-five adjusters. The responsibilities of a divisional claims superintendent include: supervising the instruction of claims personnel under his jurisdiction; training the claims supervisory personnel; examining claims files; recommending company action concerning promotion, salary changes, hiring, and disciplinary action; interviewing and initially screening applicants for claims agent jobs; administering the over-all day to day claims handling within his jurisdiction; and visiting the claims field offices. The proceedings before us began with a representation petition filed by the Union. The Company moved to dismiss the petition on the ground of inappropriateness of the unit. The Board rejected both the Union’s contention that the smallest appropriate unit was a single claims office, and the Company’s contention that the smallest appropriate unit was the Northeastern Region, or, alternatively, the New York State unit. The Board designated “the divisional unit of employees supervised by a divisional superintendent” as the smallest appropriate unit. Thereafter the Board conducted representational elections in two claims districts in New York. In the unit before us, the Union won the election and was certified as the bargaining representative. The Union then requested the Company to bargain. The Company refused on the ground that the unit found by the Board was inappropriate. The Union filed an unfair labor practice charge alleging an unlawful refusal to bargain. The General Counsel issued a complaint, and the Company’s response admitted the refusal to bargain, reasserting the inappropriateness of the unit. The Board granted the General Counsel’s “Motion for Summary Judgment and Judgment on the Pleadings,” over the Company’s objection that it was entitled to a further hearing on the appropriate unit and issued the order which is now before this court. The Company contends that the order should be set aside because the unit determination is unreasonable and the Board’s refusal to hold the further hearing requested by the Company violated Section 10(b) of the National Labor Relations Act. The Board has a wide discretion in designating appropriate units. It is not required by the Act to choose the most appropriate unit, but only to choose an appropriate unit within the range of several appropriate units in a given factual situation. The Board may look to various factors to determine what units are appropriate. The company organization, the numerical size of the unit, the geographical distribution of the employees in the unit, the type of work done by the employees in the unit, the responsibilities of the unit supervisor, the organizability of the unit, and the extent to which the unit has already been organized, are all revelant considerations and no one factor is determinative. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). Section 9(b) itself states that the unit shall be chosen “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act.” Where the facts underlying a Board determination of an appropriate unit are not contested, the Board’s determination will not be overturned unless it is arbitrary or unreasonable. May Dept. Stores Co. v. NLRB, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945); NLRB v. Krieger-Ragsdale & Co., 379 F.2d 517 (7th Cir. 1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968). The unit chosen by the Board in this case contains about thirty-five employees who do similar work under similar conditions; geographically the unit, on the average, covers one-fourth of New York State; the Union has successfully organized one of the units; the leader of the unit chosen is the Company official who directly controls and supervises the day to day work of the employees; under the Company’s organization the next larger unit would, on the average, cover a multi-state area; the smallest unit under the Company’s organization which has a leader, the regional vice-president, with any formal control over employee policy would cover all of New York, New Jersey, and New England; and the smallest unit where there is substantial control over employee policy, the Bloomington Home Office, is nation-wide. Under these circumstances, the reasonableness of the Board’s determination is clear. The fact that the next largest unit available under the Company’s organizational structure covers a multi-state area is of particular significance. In 1944 the Board adopted a policy of refusing to authorize an appropriate unit in the insurance industry which was less than state-wide, on the theory that this would promote the organization of employees by unions. Metropolitan Life Ins. Co., 56 N.L.R.B. 1635 (1944). The Board, however, subsequently abandoned this rule because As a practical matter * * * such state-wide or company-wide organization has not materialized, and the result of the rule has been to arrest the organizational development of insurance agents to an extent certainly never contemplated by the Act, or for that matter by the Board that decided the Metropolitan Life case. Quaker City Life Ins. Co., 134 N.L.R.B. 960, 962 (1961). Adoption of the Company’s position here would prevent the Board from choosing a less than state-wide unit for bargaining and would therefore “arrest the organizational development of insurance agents” in highly centralized insurance companies and would prevent the employees from enjoying “the fullest freedom in exercising the rights guaranteed by” the National Labor Relations Act, 29 U.S.C. 159(b). The Quaker City rationale also refutes the Company’s alternative contention that the most appropriate unit covers all of New York State. Finally, the Board’s decision is consistent with other Board decisions that the courts have previously approved. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963); Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 12 A.L.R.3d 775 (4th Cir. 1964). In Quaker City the duties of the head of the unit chosen as appropriate by the Board were described by the court as follows: The District Manager generally supervises the day to day operations of the office, operating under general rules set by the home office. He recommends the hiring, firing, and disciplining of the office employees and he may, under certain conditions, fire summarily. He trains the local employees, and, within limits set out by the company, makes recommendations as to promotions, increases and allowances. That authority does not significantly differ from the authority of the divisional claims superintendent in the case before us, and in Quaker City the Board’s choice of an appropriate bargaining unit was approved. Moreover, in Quaker City the district manager had only six employees under him, while the supervisor in this case has approximately five times that number. The head of the unit in Singer also had substantially the same power as the divisional claims superintendent here, and in that case the Board’s unit determination was also approved. The Company relies mainly on NLRB v. Frisch’s Big Boy Ill-Mar. Inc., 356 F.2d 895 (7th Cir. 1966), and on NLRB v. Purity Food Stores, Inc., 376 F.2d 497 (1st Cir.), cert. denied, 389 U.S. 959, 88 S.Ct. 337, 19 L.Ed.2d 368 (1967). In Frisch this court rejected the Board’s determination that a single retail store was an appropriate unit, where the Company had ten stores in Indianapolis, Indiana. The store managers there had considerably less authority than the district managers here. Yet the court recognized that an eleventh store located sixty miles away in Muncie, Indiana, might constitute, a separate bargaining unit. In Purity the First Circuit rejected the Board’s determination that a single retail outlet constituted an appropriate unit where the Company operated a chain of seven outlets, all located within thirty miles of the Company’s central office. The court stated that Purity was “a small, compact, homogeneous, centralized and integrated operation” and that “the ‘independence’ of the stores * * * amounts to no more than a few miles of physical separation.” Neither of these cases is controlling or persuasive on the facts here. The Board states that in each similar case since Quaker City it has relied primarily upon the “autonomous” character of the “single district office” and the “over-all immediate supervision” exercised by the district office manager. In each ease, on different facts, the district office head may possess varying degrees of autonomy depending upon the degree to which he may exercise significant managerial power over the employees he superintends. We think the Board could find sufficient autonomy and supervisory authority here to justify its choice of an appropriate unit. The Board did not abuse its discretion in entering the order before us, and the order does not offend the Act’s limitation that designation of an appropriate unit must not be controlled by the extent to which the unit has already been organized. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963). We conclude that we should not set aside the Board’s order on the ground that the unit chosen was inappropriate. In opposing the General Counsel’s motion for summary judgment, the Company moved for an order transferring the ease to a Trial Examiner for further hearing on the unit issue. The Board denied the motion, finding that no issue had been presented requiring a hearing. In the Board’s view, the factual issues concerning the appropriateness of the unit were resolved in the representation proceeding, and absent newly discovered or previously unavailable evidence, the issues need not be relitigated. The Company insisted that since the Board, in the representation proceeding, chose as appropriate a unit advocated by neither party, the Company did not present evidence in its possession with respect to that unit. The Company claimed it was entitled to an opportunity to present this evidence in the unfair labor practice proceedings. The Board denied the further hearing on two grounds: It stated that the evidence sought to be introduced was available at the representation proceeding, and the Company’s failure to produce it at that time precluded introduction of the evidence on the same issue in the unfair labor practice proceeding. The Board also concluded that the proffered evidence was merely cumulative to evidence heard in the representation proceeding. We agree with the Board. NLRB v. International Die Sinker’s Conference, 402 F.2d 407, 411 (7th Cir. 1968). A representation proceeding is not adversary in the usual sense, but is designed primarily to enable the Board to fulfill its statutory function with respect to the certification of bargaining representatives. Part of the function is, of course, determination of an appropriate bargaining unit. When that determination is an issue in a lepresentation proceeding, all persons concerned have the duty to produce all information relevant to the issue. The Board’s determination is not confined to the units suggested by the parties, but it may choose any unit which it reasonably deems appropriate. Local 620, Allied Industrial Workers of America v. NLRB, 375 F.2d 707, 710-11 (6th Cir. 1967); S. D. Warren Co. v. NLRB, 353 F.2d 494, 499 (1st Cir. 1965). The issue of an appropriate unit was the subject of an extensive hearing in the representation proceeding. There was substantial evidence introduced of the entire organizational structure of the Company. Having failed to produce relevant evidence it possessed in that proceeding, the Company had no right to another opportunity to present evidence at the expense of the exercise of the employees’ collective bargaining rights. Rockwell Mfg. Co., Kearney Div., v. NLRB, 330 F.2d 795, 797-798 (7th Cir. 1964). The evidence proffered in the unfair labor practice hearing was intended to show that the unit chosen in the representation hearing was subject to change in the geographical area supervised by divisional claims superintendents. But in the representation proceeding it was specifically found that “The number of these superintendents in each division is subject to change according to the volume of business and geographic distribution of field claims offices in the division; * * * ” The Board, therefore, did not abuse its discretion in denying the motion for a further hearing, as no useful purpose would have been served by receiving the Company’s evidence. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 157-158, 61 S.Ct. 908, 85 L.Ed. 1251 (1940). Having concluded that none of the grounds urged by the Company for setting aside the order is valid, the Board’s order will be enforced. MAJOR, Senior Circuit Judge, dissents, with which HASTINGS, Senior Circuit Judge, concurs. I feel obliged to dissent from the majority opinion rendered on the Board’s petition for rehearing en banc which allows the Board’s petition for enforcement, thereby nullifying the August 8, 1968 panel decision of this court. This dissent is directed squarely at the decision under review, with the findings and conclusions contained therein. I am not concerned with the many cases which stand for the well recognized proposition that our scope of review is limited and that the Board has a wide discretion in determining an appropriate bargaining unit. Such cases are not controlling here because the Board’s order, in my view, is based upon a fallacious premise and its decision is clearly erroneous, arbitrary and capricious. Furthermore, I am not impressed with the Board’s two-fold argument in support of its unit determination, apparently embraced by the majority, (1) that it is in accordance with its policy, and (2) that owing to the circumstances of the case it would have great difficulty in determining a more appropriate unit. I realize the Board’s policy is entitled to serious consideration but I disagree with the idea that it can be utilized as a substitute for facts, which it appears the Board would have us do. Likewise, the fact that the Board might have difficulty in determining some other unit as appropriate furnishes no justification for its determination that the unit under consideration is appropriate. In the beginning it is well to keep in mind what the Board characterizes as the descending supervisory chain: (1) the company’s home office at Blooming-ton, Illinois; (2) its regional office at Wayne, N. J.; (3) its division managers; (4) its divisional claims superintendents, and (5) its claims superintendents. The functions of each link of this chain are described in the Board’s decision as follows: “National personnel policies are determined at the home office in Bloom-ington ; sick leave, group medical, life, and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, and similar conditions and benefits of employment. These policies are effectively construed and implemented by the several regional offices. Against the background of policies and practices established by the home office, decisions as to the applicability of these policies and procedures to claim representatives are made by the regional supervisory authorities. Ultimately, most of the final decision-making authority in each Region is vested in the office of the Regional Vice-President. For instance, the Region makes annual reviews of the performance of each employee, for the purpose of determining whether he should be granted a salary increase (within a range predetermined by the home office). The Claim Superintendent will fill out a form to initiate such reviews, giving its comments and recommendations. The Divisional Superintendent will then make his recommendation in the portion of the form designed for his entry. Finally, the Division manager will add his recommendation, and the form will then be submitted to the office of the Regional Vice-President, where this official or his deputy will approve or disapprove the increase.” (Italics supplied.) It states: “Looking primarily to the autonomous character of the single district office petitioned for in Quaker City [134 N.L.R.B. 960], and the overall immediate supervision exercised by the district office manager, we concluded that a unit consisting of the employees in the district office was an appropriate bargaining unit. Since that case, we have found appropriate other single-office units which exhibited a similar degree of autonomy, and have also authorized groupings of single offices where considerations of geography or the employer’s administrative structure lent coherence to such multiple-office units.” (Italics supplied.) Then follows the heart of the decision: “The evidence of record in the case before us presents a significantly different picture of field operating procedure from that developed in the insurance agents cases cited above. It seems clear that the smallest component of the Employer’s business structure which may be said to be relatively autonomous in its operation is not the field claims office, but rather the divisional unit of employees supervised by a Divisional Superintendent. By virtue of the managerial authority reposed in the three Divisional Superintendents, who represent a supervisory focal point for their respective groups of 39, 32, and 29 claim representatives, these functionaries appear to exercise powers most closely analogous to those possessed by the district office managers in the earlier cases. A finding, therefore, that bargaining units could properly be demarcated by the supervisory jurisdiction of each Divisional Superintendent would be wholly in keeping with the principles applied in the insurance agents cases.” (Italics supplied.) Thus, the Board concedes that the operating procedure in this case “presents a significantly different picture” from that of the insurance agents cases upon which it relies, but nevertheless concludes that its unit determination “would be wholly in keeping with the principles” applied in such cases. Neither on brief nor in oral argument before this court did the Board criticize or take issue with a statement contained in our panel decision: “The Board’s reasoning rests upon two premises: (1) the unit determination was ‘relatively autonomous in its operation,’ and (2) ‘the managerial authority reposed in the three Divisional Superintendents.’ It is significant to note that the Board did not find that the unit was autonomous but only that it was ‘relatively’ so, without explanation as to why the qualifying word. Perhaps the explanation can be found in the dictionary, which defines ‘autonomous’ as ‘having the right or power of self-government; undertaken or carried on without outside control; existing or capable of existing independently.’ Webster’s Seventh New Collegiate Dictionary.” In my judgment, the record is devoid of any proof that the unit determined by the Board possessed autonomy, “relative autonomy” as found in its decision, or “substantial autonomy” as stated in its brief. On the contrary, the record clearly demonstrates that the unit determined was non-autonomous. The Board in its decision states that “sick leave, group medical, life and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, similar conditions and benefits of employment” are established in the home office and “are effectively construed and implemented by the several regional offices.” The Board further found that “decisions as to the applicability of these policies and procedures” are “vested in the office of the Regional Vice President.” Further support for the view that the divisional claim superintendents were without managerial authority to resolve issues subject to collective bargaining is shown by a statement in the Board’s original brief: “Most of the final decision-making authority in each Region ultimately resides in the office of the regional vice president. Thus, for example, the Region annually reviews each claims representative’s performance for the purpose of determining whether he should be granted a salary increase (within a range established by the home office in Bloomington). The claim superintendent initiates such reviews by filling out a prescribed form, in which he includes comments and recommendations. In turn, the divisional claim superintendent will add his recommendation in the portion of the form designated for such use. Finally, the division manager will add his recommendation, and the form will then be submitted to the office of the regional vice president or his deputy will make the final decision.” (Italics supplied.) In short, the divisional claim superintendents were without authority to make any decisions on matters which might be involved in collective bargaining. On such matters they accepted recommendations from those below (claim superintendents) ; approved or disapproved and passed them on to those above (division managers), and received orders and directions from those above which they executed in an administrative but not in a managerial capacity. There are numerous court decisions which support the view that the autonomous nature of the unit determined and the managerial authority of the divisional claim superintendents, admittedly the basis for the Board’s decision, should be rejected. In N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895, this court refused to enforce the Board’s order concerned with a single restaurant in an integrated chain because the unit designated was inappropriate. The main issue in the case was whether the unit determined was autonomous, as found by the Board. Relative to this issue we stated (page 896): “The only factual contention made by petitioner [the Board] which requires notice is that each restaurant has ‘autonomy’ because each restaurant manager has certain powers. However, the undisputed facts appearing in the record show that a common labor policy affecting all employees is formulated and administered by the president, as chief executive, and certain other officers of the corporations. Reporting to him are three area supervisors each of whom has a share of the Indianapolis restaurants to cover. These area supervisors visit the restaurants frequently.” (Italics supplied.) In deciding this issue we stated (page 897): “It is evident to us that the decisions left to the managers do not involve any significant element of judgment as to employment relations. * * * “It is obvious to us that none of the store managers will be deciding questions affecting the employees in the context of collective bargaining.” (Italics supplied.) The majority opinion, in the attempt to distinguish this case on its facts, states, “The store managers there had considerably less authority than the district managers here.” With this statement I disagree but, in any event, the pertinent point is the court’s reasoning and conclusion, which read as though written for this case. In N.L.R.B. v. Purity Food Stores, Inc., 376 F.2d 497, 501, the First Circuit cited with approval our opinion in Frisch’s and refused to enforce the Board’s order on the ground that its unit determination was inappropriate. The Board found a single supermarket to be an appropriate bargaining unit, based on the authority of the manager and the autonomy of the store. In rejecting the Board’s determination the court stated (page 500): “The Board rested its conclusion basically on lack of store-wide bargaining history and on its view that the Peabody store was so economically independent of the other retail stores and possessed such ‘significant autonomy’ within the respondent’s over-all operation that separation of that store from the others for purposes of collective bargaining would not obstruct centralized control and effective operation of the chain. We cannot agree.” (Italics supplied.) The Board in its brief, in support of the instant petition, states: “ * * * individual cases in which the courts of appeals have set aside such determinations as arbitrary or capricious may be regarded either as proper reversals of administrative action, under all the circumstances, or as aberrational abuses of judicial power.” In a footnote the Board states: “For purposes of the instant petition for rehearing, it is irrelevant whether the Court’s decision in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895 (1966) is regarded as the former or the latter.” While the Board does not state in which category it places this court, the implication is plain. Even so, our feelings are soothed by the opinion of the Fifth Circuit in N.L.R.B. v. Davis Cafeteria, Inc., 396 F.2d 18. In that case the court refused to enforce the Board’s order on the ground that the bargaining unit selected was inappropriate. Referring to Frisch’s and Purity, the court stated (page 20): “In view of the elucidating opinions in the Purity Foods case, in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., supra, * * * it would serve no precedental value for us to repeat what we have previously said, or what the First and Seventh Circuits have already so well said. In the circumstances of this case, labor policy is centrally determined, and where local managers do not have authority to decide questions which would be subjects of collective bargaining, the two respondent cafeterias do not constitute an appropriate bargaining unit.” (Italics supplied.) Called to our attention subsequent to the instant hearing en banc is a decision of the Second Circuit in N.L.R.B. v. Solis Theatre Corp., and Interboro Circuit, Inc., 403 F.2d 381, decided November 14, 1968. In that case the court refused enforcement of the Board’s order on the ground that the Board improperly determined the bargaining unit. Concluding its statement of the facts, the court stated (page 383): “It appears, therefore, that instead of being in a decision making position, the ‘manager’ has little or no authority on labor policy but is subject to detailed instructions from the central office. “The Courts of Appeals have been reluctant to sanction bargaining units whose managers lack the authority to resolve issues which would be the subject of collective bargaining.” Following this statement, the court cites with approval our opinion in Frisch’s, the First Circuit opinion in Purity, and the Fifth Circuit opinion in Dams. I would deny enforcement of the Board’s order for reasons so clearly revealed in its decision. . 29 U.S.C. §160 sjí $ 5}C 8}í }¡í The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. * * * * * . In Singer the Board’s order was denied enforcement on other grounds. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_appel1_7_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). Mahlon C. KIRKPATRICK v. NEW YORK CENTRAL RAILROAD CO. Circuit Court of Appeals, Sixth Circuit. June 3, 1929. No. 5421. Anderson & Lamb, of Youngstown, Ohio, for appellant. D. G. Jaeger, of Cleveland, Ohio, for appellee. PER CURIAM. Dismissed pursuant to stipulation of counsel. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_appel1_1_4	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant. ASPHALT INDUSTRIES, INC., Appellant, v. COMMISSIONER OF INTERNAL REVENUE. No. 17470. United States Court of Appeals Third Circuit. Argued Feb.'4, 1969. Decided May 14, 1969. Daniel Mungall, Jr., Stradley, Ronon, Stevens & Young, Philadelphia, Pa. (Robert M. Taylor, Philadelphia, Pa., on the brief), for appellant. Loring W. Post, Dept, of Justice, Tax Division, Washington, D. C. (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Meyer Rothwacks, Attys., Dept, of Justice, Washington, D. C., on the brief), for appellee. Before KALODNER, GANEY and SEITZ, Circuit Judges. OPINION OF THE COURT KALODNER, Circuit Judge. The critical question presented is whether the Tax Court correctly held that theft losses sustained by the petitioner Asphalt Industries, Inc. by reason of diversion of its funds were deductible as a “loss from theft” under Section 165 (a), (e) of the Internal Revenue Code of 1954 only during the taxable year in which they were discovered. Section 165 “Losses” provides: “(a) General rule. — There shall be allowed as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise. * * * * * * “(e) Theft losses. — -For purposes of subsection (a), any loss arising from theft shall be treated as sustained during the taxable year in which the taxpayer discovers such loss.” These undisputed facts are relevant to our disposition: Petitioner is a Pennsylvania corporation. During the taxable year here involved — the fiscal year ending February 29, I960- — petitioner’s stock was owned in equal shares by its then president, Conrad V. Anderson, Jr. and its secretary-treasurer, Richard Schwoebel. Petitioner’s day-to-day operations were conducted by Anderson and its vice-president and assistant secretary, one Arthur Sanford. Anderson died on November 12, 1960. Thereafter, in December 1960 or January 1961, Schwoebel, who succeeded Anderson as petitioner’s president, discovered that Anderson had cashed for his own use customers’ checks made payable to petitioner during the petitioner’s 1960 fiscal year and for some five preceding years. Petitioner promptly notified the Internal Revenue Service of its discovery since its books and income tax returns had not reflected as corporate “income” the diverted and converted funds. The Internal Revenue Service then made deficiency assessments totalling $96,172.84, and imposed fraud penalties aggregating $52,674.18 for the fiscal years ending February 28, 1955 through February 29, 1960. In sustaining the deficiency assessments and fraud penalties the Tax Court ruled that petitioner was not entitled to theft-loss deductions under Section 165 for the years in question, on the ground that they could be claimed only in the year in which they were discovered. 46 T.C. 622 (1966). This Court, at 384 F.2d 229 (1967), held (p. 235): “ * * * the corporation is not chargeable with Anderson’s fraud and that the assessments for fraud therefore must be set aside,” and ruled that “The decision of the Tax Court will be reversed.” Upon the remand which followed, the Tax Court in a Memorandum Opinion, subscribed to the contention of the Internal Revenue Service that we had at 384 F.2d 229 only reversed the fraud assessments for the years 1955-1960, inclusive, and as a necessary concomitant barred the deficiency assessments for the years 1955-1959, and had let stand the “basic deficiency” of $13,819.39 for the fiscal year ending February 29, 1960. The Tax Court then entered its decision sustaining the 1960 deficiency assessment of $13,819.39. The instant petition for review followed. The sum of petitioner’s position is that (1) this Court did not at 384 F.2d 229 rule with respect to the 1960 deficiency assessment; and (2) it is entitled to claim a theft-loss deduction for the taxable year ending February 29, 1960, even though the loss was not discovered until later. The Commissioner, in reply, contends that we had in our earlier opinion let stand the 1960 deficiency assessment, and assuming arguendo that we had not done so, that the theft-loss deduction could be claimed under Section 165 only for the taxable year in which it was discovered, and not the 1960 taxable year in which it occurred. We must immediately note with respect to the parties’ conflicting views as to what we decided at 384 F.2d 229, that we there made it clear that we were confining our disposition to the question of the imposition of the fraud penalties against the petitioner, and the concomitant question of the deficiency assessments for the years of 1955 to 1959, inclusive. Moreover, we expressly stated that “we put aside the interesting and important question of the effect of the change made by the 1954 Code, which altered the time for deduction from the year in which the theft occurred to the year of its ‘discovery’.” 384 F.2d 233. What has been said brings us to the critical question as to whether the theft losses are deductible only in the year in which they are discovered. Prior to enactment of the 1954 Code, loss deductions were authorized only for losses “sustained during the taxable year.” The Treasury Regulation interpreting this provision provided: “A loss from theft or embezzlement occurring in one year and discovered in another is ordinarily deductible for the year in which sustained.” (emphasis supplied). Thus, the general policy of the Treasury was to treat a loss as sustained in the year in which the theft or embezzlement occurred. Under this Regulation, however, the Treasury in many instances allowed deductions for embezzlement losses in years subsequent to those in which the thefts occurred. Likewise, the courts, faced with the consideration that discovery might be made years after the embezzlement occurred and with the difficulty at times in ascertaining exactly when the embezzlement occurred, adopted a flexible approach in determining when a loss was “sustained.” This problem culminated in the Supreme Court’s decision in Alison v. United States, 344 U.S. 167, 73 S.Ct. 191, 97 L.Ed. 186 (1952), in which the Court eschewed any “inflexible rule.” The Court declared (p. 170, 73 S.Ct. p. 192): “Whether and when a deductible loss results from an embezzlement is a factual question, a practical one to be decided according to surrounding circumstances. * * * An inflexible rule is not needed; the statute does not compel it. For years the Treasury has administered the tax law under regulations saying that deductions shall ‘ordinarily’ be taken in the year of embezzlement. Ordinarily does not mean always.” The IRS responded to the Alison decision by ruling that theft deductions could be taken in the year of discovery in situations in which it was impossible to determine when the embezzlement occurred and in those in which the discovery was “many years” after the embezzlement and “undue hardship or injustice would result if the loss were allowed only in the years the embezzle-ments occurred.” Rev.Rul. 183, Cum. Bull. 1953-2, at 143. The Service was careful to point out, however, that “this exception does not provide taxpayers with an option to select the taxable year in which the deduction of the loss is to be allowed for tax purposes.” The 1954 Code provision dealing with theft losses was thus enacted against a background of existing law in which a taxpayer could not be certain in which year an embezzlement theft loss could be taken. Prior thereto, though relief had been granted on an ad hoc basis in individual cases, the courts and the Treasury were still groping with the problem of what to do when a theft loss was not discovered until after the taxpayer was barred from claiming a deduction in the year of occurrence. “Doubtless in the interest of producing a more realistically enforceable rule, the 1954 Code shifted the focus of deductibility from the year of sustainment to the year of discovery.” Mertens, Federal Income Taxation Commentary: Section 165, at 201-202. After stating the general rule in Section 165(a) that a deduction will be allowed for losses “sustained during the taxable year,” the 1954 Code goes on to provide in Section 165(e): “For purposes of subsection (a), any loss arising from theft shall be treated as sustained during the taxable year in which the taxpayer discovers such loss.” The IRS has construed this as meaning that a theft-loss deduction can be taken only in the year of discovery. Treas.Reg. § 1.-165-8(a). This interpretation of Section 165(e) is not only supported by analysis of the pre-existing law, but by the legislative history relating to that section. Thus, the House Report on the section stated: “The regulations under present law indicate that generally ordinary losses can be taken only in the year in which they are sustained. In embezzlement and other theft losses, however, the taxpayer may not find out about the loss until the statute of limitations has run for the year in which the loss was incurred. “The committee has adopted a provision which provides that theft losses can be deducted in the year in which the taxpayer discovers the loss, and only in that year. ****** “Subsection (e) is a new provision for the treatment of theft losses. There was no comparable statutory provision in the 1939 code. Regulation 118, section 39.43-2 provides that a loss from theft or embezzlement is ordinarily deductible for the year in which sustained. There has been considerable uncertainty and litigation about the application of this rule. Under the new provision, the loss will always be deductible in the year in which the taxpayer discovers the loss, The rule will, of course, also apply to embezzlement, larceny, etc. * * * ” H.R. No. 1337, 83d Cong., 2d Sess., pp. 21 & A46 (1954), reprinted in 3 U.S. Code Cong. & Admin.News 4017, 4045-4046, 4183 (1954) (emphasis supplied). This same language is contained in the Senate Report. Senate Rep. No. 1622, 83d Cong., 2d Sess., pp. 23 & 198 (1954), reprinted in 3 U.S. Code Cong. & Admin. News 4621, 4653, 4833 (1954). See also 5 Mertens, Federal Income Taxation § 28.59, at 244; Mertens, Federal Income Taxation Commentary: Section 165, at 201-202. In view of the clear legislative history and the context in which Section 165(e) was enacted, the Treasury Regulation providing that theft losses can be deducted only in the year of discovery is clearly valid. See Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 92 L.Ed. 831 (1948); Fawcus Machine Co. v. United, States, 282 U.S. 375, 378, 51 S.Ct. 144, 75 L.Ed. 397 (1931). For the reasons stated, the decision of the Tax Court will be affirmed. . 26 U.S.C.A. Sec. 165(a), (e). . Asphalt Industries, Inc. v. Commissioner, T.C. Memo. 1968-155 (July 23, 1968). . The Commissioner also contends that petitioner has not established that Anderson’s conversion of its funds amounted to “embezzlement”, and, further, that there is a reasonable prospect that petitioner will recover the misapplied funds in a suit which it has filed against Anderson’s estate. We do not reach these contentions in the light of our disposition. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant? A. auto industry B. chemical industry C. drug industry D. food industry E. oil & gas industry F. clothing & textile industry G. electronic industry H. alcohol and tobacco industry I. other J. unclear Answer:
songer_appel1_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 appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. CHANCEY v. BAUER et al. No. 8704. Circuit Court of Appeals, Fifth Circuit. June 7, 1938. SIBLEY, Circuit Judge, dissenting in part. C. A. Hiaasen, of Fort Lauderdale, Fla., for appellant. Harold W. Fraser, of Toledo, Ohio, and Bert Winters, of West Palm Beach, Fla., for appellees. Before FOSTER, SIBLEY, and HUT-CHESON, Circuit Judges. Rehearing denied 97 F.2d 994. HUTCHESON, Circuit Judge. Appellant is a lawyer, who, to recover fees claimed to have been earned in connection with a suit in the state court, intervened in a foreclosure proceeding in the Federal court,, claiming a lien upon the bonds involved, and the funds realized therein. His claim was that the services he rendered in the state court suit were rendered for the holders of the bonds under a contract with the bondholders' committee in whom the title to, and authority over the bonds were vested, by a contract authorizing them to employ counsel, and to charge the expenses of the committee, including counsel fees, upon the bonds and their proceeds. The defense was that the claim he made was for services rendered in another suit, under a contract personal in its nature, and carrying no charging lien; that the Federal court suit involved only the distribution of funds realized from the foreclosure, and unless he had a lien he could not maintain his intervention: (1) because his claim was in part against citizens of Florida, and was an effort to litigate in the main suit matters having nothing to do with it, and therefore not suable in it; and (2) because the leave to intervene was granted solely on the ground that he claimed and was asserting a lien, and if he had none, the intervention ought to be dismissed. The claim asserted was for services in a long litigation in the state court, in which appellant had represented several interests, all harmonious, and all arranged for under the same employment. It has two bases, one, that his services have contributed to the recovery of the fund so as to give him a charging lien; the other, that he has a lien by contract. In Florida, as in most states, a lawyer has a retaining lien upon papers in his hands, and, according to the circumstances, a charging or equitable lien on recoveries obtained for his client in the suit for the services in which the charge is made. Carter v. Davis, 8 Fla. 183; Alyea v. Hampton, 112 Fla. 61, 150 So. 242; Scott v. Kirkley, 113 Fla. 637, 152 So. 721, 93 A.L.R. 661; 5 Am.Jur., Attorneys at Law, §§ 219 to 248, incl; 7 C.J.S., Attorney and Client §§ 211 to 217, incl. Federal courts have always recognized and enforced these liens. United States ex rel. Payne v. Call, 5 Cir., 287 F. 520; Cooper v. McNair, D.C., 49 F.2d 778, 779. Cf. Webster v. Sweat, 5 Cir., 65 F.2d 109. In Florida, as elsewhere, the charging lien is an equitable right to have the costs and fees due him for services in the suit secured to him in the judgment, or recovery in that particular suit. 7 C.J.S., Attorney and Client, § 211. It is based on the natural equity that plaintiff should not be allowed to appropriate the whole of a judgment in his favor without paying for the services of his attorney in obtaining such judgment. Graeber v. McMullin, 10 Cir., 56 F.2d 497; Cohen v. Goldberger, 109 Ohio St. 22, 141 N.E. 656. No lien may therefore arise where there have been no proceeds recovered in the suit as to which the services are claimed. 5 Am.Jur. 395; Trustees of Internal Improvement Fund v. Greenough, 105 U.S. 527, 26 L.Ed. 1157. The value therefore of services rendered in one suit cannot be included in a judgment establishing the lien of an attorney for his fees on property recovered by his client in a different suit. Davis v. Webber, 66 Ark. 190, 49 S.W. 822, 45 L.R.A. 196, 74 Am.St.Rep. 81. The proceedings in the state court were defensive throughout. Nothing was, nothing will be, recovered in that suit. No basis upon which a charging lien could attach exists for services rendered in it, indeed this has been specifically adjudicated as to appellant in the state court. “There is no fund arising out of that suit either in this court or the circuit court upon which petitioner [Chancey] could have any lien for his services as attorney, because there was no fund brought into the court in that suit.” Vosges Syndicate v. Everglades Club Co., 122 Fla. 267, 164 So. 881, 886. We do not understand that appellant claims the contrary. We understand his claim to be that the services in the state court suit, which was a controversy for control, permitted the Federal court foreclosure, in which he was also of counsel, to be proceeded with to a successful conclusion, and that he should have a lien on the foreclosure proceeds, on the theory that the state court defense was in effect ancillary and incidental to the Federal court suit, in which the fund was realized. In support of this view he relies upon the text of 5 Am.Jur. at 396, Note 13, Newbert v. Cunningham, 50 Me. 231, 79 Am.Dec. 612, and on Cowdrey v. Galveston, H. & H. R. Co., 93 U.S. 352, 23 L.Ed. 950, and Louisville, Evansville & St. Louis R. Co. v. Wilson, 138 U.S. 501, 11 S.Ct. 405, 34 L.Ed. 1023. We think it plain that none of these reliances will avail him. The state court suit, for services in which he makes claim, was in no sense, within the principles invoked, an ancillary or incidental suit to the Federal court foreclosure. In the Louisville, E. & St. Louis R. Co., Case the only allowance made was for moneys recovered by the attorney under an employment in the suit in which the allowance was made, for moneys recovered in a suit brought by him under that employment. His claims for services other than for the moneys recovered in that suit, and made available in the suit he was employed in, were expressly disallowed. In the Cow-drey Case the allowance was for services in connection with a bond foreclosure, rendered by an attorney employed by the trustee under an agreed fee, the court correctly holding that the bondholders could not displace him in the suit without compensating him. This rule is of universal application. Cf. Vosges Syndicate v. Everglades Club Co., supra. Appellant, then, has not made out a case upon his theory that the facts in connection with the state court services raised a charging lien on the Federal court funds. We think he stands no better upon his other theory, that his employment by the Committee, authorized by the deposit agreement to employ counsel, and to charge the Committee expenses, including counsel fees, against the bond proceeds, gave him an equitable lien thereon. The books are full of cases discussing and laying down the conditions under which equitable liens and assignments will be held to exist, and the rights of lawyer and client thereunder. They make it clear that where it sufficiently appears from the contract that it was understood and agreed that the lawyer was to look to a fund for his compensation, and that he undertook to and did perform the work in that reliance, any words or acts which clearly show an intention to give such a lien or assignment will be so construed and given effect. Texts cited supra, and United States Fidelity & Guaranty Co. v. Levy, 5 Cir., 77 F.2d 972, at pages 975, 976. Here the only contract appellant had was with the Committee under an arrangement by which it was to fix the amount of his recovery. It is true that the Committee was obliged to act reasonably, and that appellant was entitled to a reasonable fee. McGill v. Cockrell, 88 Fla. 54, 101 So. 199; Crichlow v. Doepke, 5 Cir., 56 F.2d 599. Nothing in the contract, however, gives rise to the view that the bonds, or any part of them, were assigned to him, or charged with a lien in his favor. We think it plain that he stands with nothing but a personal contract, to be enforced as such, and that he has no lien upon the funds. So much of the decree, then, as adjudges that he is without lien and dismisses him from the suit, is affirmed. Cf. Lone Star Cement Corp. v. Swartwout, 4 Cir., 93 F.2d 767; Kuppenheimer v. Mornin, 8 Cir., 78 F.2d 261, 264, 101 A.L.R. 75. But this is not all that the decree did. In the course of his efforts to obtain satisfaction appellant, invoking Sec. 5003, Comp.Gen.Laws, 1927 of Florida, filed suit in the state court against absent defendants and a local trust company, trustee for the holders of the bonds, to obtain an order requiring it to withhold, and not to pay over to absent defendants out of funds it should receive under the terms of the Federal court decree, a named sum sufficient to pay appellant’s claim. Upon his petition in that suit the Judge, acting under the terms of the statute, ordered the Trust Company to withhold the sum. Thereupon an order was obtained in the Federal court directing the Trustee to disobey the state court's order, and enjoining appellant from further proceeding with the state court suit. This order was entered on the ground that the funds sought by the state court’s order were in custodia legis in the Federal court, and that appellant’s proceeding, in effect an equitable garnishment, was an interference with the prioi;, custody and control of the Federal court. Thereafter, appellant, having secured a modification of the state court decree so as to expressly provide that it should apply to the funds in the hands of the trustee, after, but not before, they had been taken over by it under the Federal court decree, applied to the Federal court for a dissolution of the injunction against him from further prosecuting that suit. This application was denied, and in the final decree on his intervention, appellant was not' only refused leave to assert claim to the funds there, but was enjoined from asserting claim in the state court. In this the District Court erred. The invoked statute, designed to protect citizens of Florida from being overreached by absent debtors, and to aid them in the collection of moneys due, was within the province of the State Legislature to enact, and of the state court to enforce. The order of the state court certainly as modified, did not seek to, it did not, in any sense interfere with or attach to moneys in custodia legis. As drawn, it had application to, and it affected only, moneys in the hands of the Trust Company, defendant, after they had passed- out of the custody of the court, and into that defendant’s hands for distribution. The funds would then stand, and the Trust Company would stand to them, as custodian or possessor, in the same case as though it had obtained the funds other than by court decree. The equitable seizure of the state court proceeding therefore, would attach to them in the same case. The District Judge, in dismissing appellant’s intervention, should have dissolved the injunction he was under, and remitted him unhampered by the Federal court proceedings, to such remedy as he had in the state court. The judgment, therefore, insofar as it dismissed the intervention, is affirmed. Insofar as it refused'to dissolve the injunc-. tion, it is reversed and the injunction is dissolved. Affirmed in part and reversed in part. “If any suit shall be commenced for relief in equity in any court against any defendant residing out of this State, and any other defendant within the same having in his hands effects of, or being otherwise indebted to, such absent defendant, and the appearance of such absentee be not entered and security given to the satisfaction of the court for performing the decree, upon affidavit that such defendant is out of the State, or that upon inquiry at his usual place of abode he cannot be found go as to bo served with process, the court may make an order and require surety, if it shall appear necessary, to restrain the defendant in this State from paying or conveying away, or secreting the debts by him owing to, or the effects in his hands, of such absent defendants, or to restrain the absent defendant from conveying away or secreting or removing the property in litigation, or make an order sequestrating the property which may be necessary to secure the plaintiff if lie finally succeeds; and may order such debts to be paid, and effects to be delivered up to said plaintiff, upon his giving sufficient security for the return thereof.” Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_opinstat	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. UNITED STATES of America, Plaintiff-Appellee, v. Alexander TOWNS, Defendant-Appellant. No. 87-5602. United States Court of Appeals, Fourth Circuit. Argued March 11, 1988. Decided March 29, 1988. Russell P. Butler (Keiffer, Ditrani, Johnston, Butler & Reinstein, Camp Springs, Md., on brief), for defendant-appellant. Hollis Raphael Weisman, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., Baltimore, Md., on brief), for plaintiff-appellee. Before WIDENER and CHAPMAN, Circuit Judges, and McMILLAN, United States District Judge for the Western District of North Carolina, sitting by designation. CHAPMAN, Circuit Judge: This appeal presents the question of whether the Army and Air Force Exchange Service (AAFES) is an agency of the United States so that theft from the AAFES causes the government to suffer an actual property loss, subjecting the person accused of the theft to prosecution under 18 U.S.C. § 641. We conclude that AAFES is an agency of the United States, and a theft of its property causes property loss to the United States and 18 U.S.C. § 641 is applicable, and we affirm. I Appellant was convicted before a United States Magistrate of the theft of two “Pillow Sacks” from the Army and Air Force Exchange Service at Walter Reed Army Medical Center in Silver Spring, Maryland. He was sentenced to pay a fine of $25, plus a $25 special assessment. Appellant appealed to the United States District Court for the District of Maryland and claimed that property of the AAFES was not property of the United States and that he could not be found guilty under 18 U.S.C. § 641. The district court ruled against the appellant and sustained his conviction, 668 F.Supp. 454. The appellant has raised the same issue on appeal to our court. II There is no contention that theft or shoplifting from an AAFES store does not cause loss to the AAFES. The question is whether such loss constitutes a loss to the United States so that it may be the subject of a prosecution under 18 U.S.C. § 641. The appellant relies upon our decision in Keane v. United States, 272 F. 577 (4th Cir. 1921), in which we held that the Post Exchange at Fortress Monroe was not such a department of the United States and that one who conspired to defraud an agent of the Post Exchange should not be deemed guilty of conspiracy to defraud the United States. The precedential value of Keane ended with Standard Oil Co. of California v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611 (1942). In that case the question presented was whether the Post Exchange constituted an arm of the government of the United States or a department thereof. The court concluded: From all of this, we conclude that post exchanges as now operated are arms of the Government deemed by it essential for the performance of governmental functions. They are integral parts of the War Department, share in fulfilling the duties entrusted to it, and partake of whatever immunities it may have under the Constitution and federal statutes. 316 U.S. 485, 62 S.Ct. 1170. In Brethauer v. United States, 333 F.2d 302 (8th Cir.1964), the court was faced with a criminal prosecution for defrauding the United States under 18 U.S.C. § 1001, and the issue was raised whether an Army Post Exchange constituted an agency of the United States within the false statements statute. The Eighth Circuit found that under Standard Oil Co. of California v. Johnson “it is compellingly clear that a Post Exchange, although created by regulations, is an arm of the Government and an agency within the meaning of 18 U.S.C. § 1001.” Id. at 305. In Champaign-Urbana News Agency v. J.L. Cummins News Co., 632 F.2d 680 (7th Cir.1980), the court concluded that AAFES is an instrumentality of the United States for the purposes of federal antitrust legislation, that it is an integral part of the Department of Defense, and that it is an arm of the United States Government. In United States v. Hopkins, 427 U.S. 123, 96 S.Ct. 2508, 49 L.Ed.2d 361 (1976), the court answered the argument that the exchange services are not agencies of the federal government because they operated with “nonappropriated funds.” The court found that the exchange services are created and administered pursuant to the general authority granted to the Secretary of the Army and the Secretary of the Air Force by 10 U.S.C. §§ 3012 and 8012, that its nonappropriated-fund status did not change its character, and that the employees of the exchange were employees of the United States. Id. at 127, 96 S.Ct. at 2511. In Army and Air Force Exchange Service v. Sheehan, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982), the court stated, The AAFES, like other military exchanges, is an “ ‘ar[m] of the government deemed by it essential for the performance of governmental functions ... and partake[s] of whatever immunities it may have under the [C]onstitution and federal statutes.’ ” 456 U.S. at 733-34, 102 S.Ct. at 2121-22. We find no merit to appellant’s additional claim that 18 U.S.C. § 641 is void for vagueness. AFFIRMED. . Title 18, § 641 reads, in pertinent part: Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; ... if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_genapel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. EDWARD B. MARKS MUSIC CORPORATION, Plaintiff-Appellant, v. COLORADO MAGNETICS, INC., d/b/a Sound Values, Inc., et al., Defendants-Appellees. No. 73-1395. United States Court of Appeals, Tenth Circuit. Submitted Nov. 13, 1973. Decided Feb. 28, 1974. As Modified on Rehearing May 28, 1974. Simon H. Rifkind, New York City (James D. Fellers, Frank A. Gregory, Fellers, Snider, Baggett, Blankenship & Bailey, Oklahoma City, Okl., and of counsel, John C. Taylor, III, Stuart Robinowitz, Sidney S. Rosdeitcher, Steven B. Rosenfeld, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Robert C. Osterberg, John S. Clark, Abeles, Clark & Osterberg, Charles B. Lutz, Jr., Speck, Philben & Fleig, Oklahoma City, Okl., on the brief), for plaintiff-appellant. Jerry J. Dunlap, Oklahoma City* Okl. (Charles A. Codding, Dunlap, Laney, Hessin & Dougherty, Oklahoma City, Okl., on the brief), for defendants-appellees. Before LEWIS, Chief Judge, and MURRAH and- McWILLIAMS, Circuit Judges. McWILLIAMS, Circuit Judge. This is a so-called tape piracy ease. Edward B. Marks Music Corporation, hereinafter referred to as Marks, is an independent music publisher and, as such, is the owner of copyrights in numerous musical compositions. Marks, through its licensing agent, the Harry L. Fox Agency, Inc., has authorized various record companies to make recordings of compositions in which it, Marks, owns the copyright. The recording companies thus licensed by Marks to reproduce or record its copyrighted musical compositions have hired artists who have made recordings of the musical compositions here involved. Such recordings are then offered for sale to the general public. Colorado Magnetics, Inc., hereinafter referred to as Magnetics, with no authorization from Marks, has also made recordings of musical compositions in which Marks owns the copyrights and has offered its recordings for sale to the general public at a price well below the retail price of the recordings produced by those recording companies licensed by Marks to record its copyrighted compositions. Magnetics’ modus operandi is to first purchase on the open market individual “hit” records thus made by those recording companies licensed by Marks to use its copyrighted compositions. Magnetics then duplicates or copies the recording with its own sound equipment on magnetic tape and offers for sale to the general public its duplicated or copied cassette tape recordings. Magnetics, of course, is able to undersell because, by simply copying the records made by others, it avoids the considerable expense incurred by the licensed recording companies in the hiring of arrangers, an orchestra, and the featured recording artists incident to their recordings. It was in this general setting that Marks brought a copyright infringement action against Magnetics, seeking damages and injunctive relief. The gist of Marks’ complaint is that Magnetics is making an unauthorized and unlawful use of musical compositions in which it, Marks, owns the copyrights. Magnetics, by answer, denied copyright infringement, and alleged that its use of Marks’ copyrighted compositions is authorized by the so-called “compulsory license” provisions of the Copyright Law, namely, 17 U.S.C. §§ 1(e) and 101(e). Additionally, and alternatively, Magnetics alleged that Marks was guilty of certain antitrust violations which preclude it from enforcing its copyrights. The case was initially set down for hearing on Marks’ request for a preliminary injunction. However, before such hearing was held, the parties agreed that a hearing on the merits would be combined with the hearing on the preliminary injunction. Upon trial, the only witness called was the president of Marks. Additionally, four depositions were offered, and received into evidence, the two principal owners of Magnetics having been among those thus deposed. Also, considerable documentary material was offered, and received, without objection. And this was the extent of the evidentiary matter before the trial court. At the conclusion of the trial, the trial court asked the respective parties to submit proposed findings and conclusions. Thus the parties did and the trial court elected to adopt, virtually without change, the findings and conclusions submitted by Magnetics, all of which, needless to say, resulted in a smashing victory on all fronts for Magnetics. In this regard, we note that the Supreme Court in United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964), observed that findings and conclusions prepared by counsel and adopted, more or less verbatim, by a trial court are less helpful on review than findings and conclusions drawn with the “insight of a disinterested mind.” We agree. In any event, the trial court specifically found that Magnetics in its use of Marks’ copyrighted musical compositions did not infringe on Marks’ copyrights and that Magnetics’ duplication of records playing Marks’ copyrighted compositions was authorized by the compulsory license provisions of 17 U.S.C. §§ 1(e) and 101(e). Alternatively, and additionally, the trial court went on to find that Marks was guilty of certain antitrust violations which precluded recovery; that because of its “misuse” of the copyrights in question Marks was es-topped; and that Marks’ “unclean hands” also barred recovery. In line with such findings and conclusions, the trial court dismissed the proceedings and awarded Magnetics its costs and attorneys’ fees. The complete findings and conclusions of the trial court are reported in Edward B. Marks Music Corp. v. Colorado Magnetics, Inc., 357 F.Supp. 280 (W.D.Okl.1973). In this regard, we note that though the trial court made written findings and conclusions, it did not render, as such, an opinion. From such judgment Marks now appeals. We reverse. COMPULSORY LICENSE In our view, the central issue in this case relates to the compulsory license provisions of 17 U.S.C. §§ 1(e) and 101(e). If Magnetics’ use of Marks’ copyrighted compositions falls within the ambit of that particular statutory provision, then Marks’ present action must fail. However, if Magnetics’ activities are outside the bounds of that statute, then Marks, as the copyright owner, is entitled to relief. Although prior to 1909 a composer could obtain a copyright on his musical composition, Congress in 1909 considerably extended the copyright interest of the composer to the end that thereafter the copyright owner of a musical composition could himself control the mechanical reproduction of his composition. At the same time, fearful that by permitting a musical composition to be thus copyrighted it was permitting an absolute monopoly, Congress tacked on a proviso or exception to the statute authorizing the copyrighting of musical compositions. It is this proviso, which is a part of 17 U.S.C. § 1(e), with which we are here concerned. Such proviso reads as follows: Provided, . . . as .a condition of extending the copyright control to such mechanical reproductions, that whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of 2 cents on each such part manufactured, to be paid by the manufacturer thereof; . As indicated, Magnetics claims that its use of Marks’ copyrighted composition in its duplication of records made by others is authorized by the foregoing statutory provision, which provides for a so-called compulsory license, in lieu of an express license from the copyright owner. In this general regard, it should be noted that Magnetics did file a notice of intent as required by 17 U.S.C. § 101(e) and did make a tender, of sorts, of the 2 cent royalty called for in 17 U.S.C. § 1(e). Marks refused the tender, and then instituted the present proceeding. We need not here concern ourselves with whether the tender complied with the statute, as, in our view, Magnetics’ use of Marks’ copyrighted compositions necessarily involved in its duplication or copying of the records of others, who are themselves licensed by Marks to record, finds no sanction in 17 U.S.C. § 1(e). At the outset, we note that we are here concerned with a proviso or exception to the statute vesting a copyright interest in the composer of a musical composition and granting him the exclusive right to determine the use to be made of his copyrighted composition. In this regard, it is the general rule that a proviso should be strictly construed to the end that an exception does not devour the general policy which a law may embody. Shilkret v. Musicraft Records, Inc., 131 F.2d 929 (2d Cir. 1942), cert. denied, 319 U.S. 742, 63 S.Ct. 1030, 87 L.Ed. 1699 (1943). As we read the statutory provisions here under consideration, one who owns the copyright in a musical composition has, in the first instance at least, absolute control over who records his composition. He may elect not to allow anyone to record his composition. However, when the composer elects to license another to “use . . . the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work,” then the compulsory license provisions of the statute may be invoked. Specifically, the statute provides that once the composer has licensed another to reproduce by recording the composer’s composition, then, upon payment of the statutory royalty, “ . . . any other person may make similar use of the copyrighted work . ” This means, to us, that one who complies with royalty payment called for by the statute, though not having any authorization from the copyright owner, may nonetheless then “use,” not a third party’s record, but the copyrighted composition, which has been characterized as the “raw material,” in a manner “similar” to that employed by the recording company which did have authorization from the copyright owner. There is, of course, nothing in the statute which affirmatively authorizes Magnetics to duplicate and copy the recording of one licensed by the copyright owner to reproduce his composition. However, under the statute Magnetics may “use” the copyrighted composition in a manner “similar” to that made by the licensed recording company. All of which means, to us, that Magnetics may make its own arrangements, hire its own musicians and artists, and then record. It does not mean that Magnetics may use the composer’s copyrighted work by duplicating and copying the record of a licensed recording company. Such, in our view, is not a similar use. In thus construing the statute, we believe that the legislative history of these particular statutory provisions, from 1909 down to the amendments enacted in 1971, is conflicting and indecisive. More will be said later about the 1971 amendment. We further are aware that the decisions of the several federal district courts which have been faced with this particular question are in conflict. See, for example, Fame Publishing Co., Inc. v. S & S Distributors, Inc., 363 F. Supp. 984 (N.D.Ala.1973), where that court held that a compulsory licensee under 17 U.S.C. § 1(e) acquired no right to duplicate or copy the recordings of another and that one who seeks to rely on the compulsory license provisions of 17 U.S.C. § 1(e) “must hire some musicians, take them into a studio and make his own recording.” For a contrary view, see Jondora Music Publishing Co. v. Melody Recordings, Inc., 351 F.Supp. 572 (D.N.J.1972), where that court held that the Copyright Act of 1909 did not grant to the musical composition copyright holder the power to prevent third persons from copying a particular performance of his composition where (a) with the copyright holder’s permission a performance has already been fixed on a physical object capable of reproducing it, and (b) the third person has complied with the compulsory license provisions of the Act by filing and serving notices of intention and paying statutory royalties to the copyright owner. The only Circuit Court faced with this precise problem is the Ninth. Duchess Music Corporation v. Stern, 458 F.2d 1305 (9th Cir. 1972), pet. for rehearing and rehearing en banc denied, April 26, 1972, cert. denied, 409 U.S. 847, 93 S.Ct. 52, 34 L.Ed.2d 88 (1972), about which more will be said later. And of course the Supreme Court has not yet passed on this particular issue. In our view, the recent case of Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), is not decisive of the present appeal. In Goldstein, the Court was concerned with the relationship between federal copyright law prior to the 1971 amendments and a California statute prohibiting the “piracy” of sound recordings by copying without permission of the recording company. The nature and extent of the interest of one having a copyright in a musical composition was not there considered. As indicated, the Ninth Circuit has considered the meaning of 17 U.S.C. § 1(e). Duchess Music Corporation v. Stern, supra,. There was a strong dissent in Duchess. So, the majority opinion and the dissent in Duchess represent quite well the competing points of view on the meaning of 17 U.S.C. § 1(e). In Duchess, the majority held that the phrase “similar use” within the meaning of the Act of 1909 does not include the “right to copy” the recordings of others. We agree and are generally persuaded that the majority opinion in Duchess sets forth the proper interpretation of the statute. As above indicated, in 1971 Congress amended the Copyright Law by making it possible for the first time to copyright the sound recording of a copyrighted composition, the effective date of this amendment being February 15, 1972. It is suggested that such amendment irrefutably indicates that Congress in 1971, at least, was of the view that the duplication or copying of sound recordings made prior to February 15, 1972, was lawful and in nowise inhibited by the Act of 1909. We do not think that such necessarily follows. In the first place, we are of course not bound by Congress’ interpretation of a prior existing law. Golsen v. C. I. R., 445 F.2d 985 (10th Cir. 1971), cert. denied, 404 U.S. 940, 92 S.Ct. 284, 30 L.Ed.2d 254 (1971). Indeed, whatever merit there may be in the practice of relying on the opinion of a later Congress as to the intent of an earlier one wanes with the length of time which separates the two sessions, which in the instant case was sixty-three years. United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968). For an indication of the interpretation given the Act of 1909 by the judiciary shortly after its enactment, see Aeolian Co. v. Royal Music Roll Co., 196 F. 926 (W.D.N.Y.1912). In that case, it was held that § 1(e) of the Act providing that “any other person may make similar use of the copyrighted work” did not thereby secure the right to a subsequent user to “copy” the perforated piano rolls or records of another. The court then went on to declare that the would-be subsequent user could not avail himself of the skill and labor of the original manufacturer of the perforated roll or record by copying or duplicating the same, but had to resort to the copyrighted composition, and could not “pirate the work of a competitor who has made an original perforated roll.” Secondly, the 1971 amendment created a copyrightable interest in the recording itself, the amendment to be effective February 15, 1972. We are here concerned with the nature and extent of the copyright interest of the composer, not the recording company. Such distinction we believe to be fundamental. Accordingly, we are not here concerned, as such, with the record, and its copying, but with the original composition and the copyright interest therein. This distinction we believe was indicated by us in Tape Head Company v. R. C. A. Corporation, 452 F.2d 816 (10th Cir. 1971). There, it was suggested by counsel that the 1971 amendment manifested an intention to grant persons situated as is Magnetics in the instant case a “carte blanche” to copy records made prior to February 15, 1972, free from any restriction, which in that case referred to state restrictions. In this general connection, however, we went on to say in Tape Head that “it is highly questionable from the authorities presented that the plaintiffs have, as a result of the Act of Congress, acquired a right to convert and use these recordings with impunity prior to February 15, 1972.” It is on this basis, then, that we are of the view that the 1971 amendment does not control the instant controversy. ANTITRUST As indicated, the trial court found, alternatively, that even if Marks had the right to maintain an infringement action, it was barred from obtaining any relief because of its own misconduct, particularly as concerns alleged antitrust violations. Assuming arguendo that an antitrust violation is a defense in a copyright infringement action, the record made in the trial court simply does not support its findings and conclusions. The evidentiary matter on this phase of the controversy is just too sketchy to support the trial court’s drastic and far-reaching findings of antitrust violations. Only certain aspects of this particular phase of the case need comment. One finding of the trial court was that Marks was precluded from any recovery because it, along with the Harry L. Fox Agency, Inc., and others, had conspired to bring the present proceeding in an effort to stifle competition. This particular finding is pretty well undermined by the interpretation we have above given 17 U.S.C. § 1(e). In any event, in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), it was held that groups with common interests may, without violating the antitrust laws, use federal agencies and the courts to advocate their causes respecting resolution of their business and economic interests as opposed to their competitors. We recognize that in Trucking Unlimited the case was remanded to the trial court for, among other purposes, a factual determination as to whether the resort to the California regulatory agency was but a “mere sham” within the meaning of Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). In the instant case, however, any suggestion of sham or bad faith on the part of Marks disappears in view of our determination that Marks in fact and in law has an enforceable copyright interest in its compositions. So, as we said in Semke v. Enid Automobile Dealers Ass’n., 456 F.2d 1361 (10th Cir. 1972), the utilization of the courts in a manner which is in accordance with the spirit of the law continues to be exempt from the antitrust laws. See also Alberto-Culver Company v. Andrea Dumon, Inc., 466 F.2d 705 (7th Cir. 1972), where it was held that a good faith effort to enforce one’s copyright is not the type of exclusionary conduct condemned by § 2 of the Sherman Act. The trial court also found that Marks was estopped from obtaining relief because of its misuse of its copyrights as concerns its pricing policies and the like. In this regard, it is argued that Ampex, for example, is a compulsory licensee and is duplicating and copying records in a manner similar to Magnetics. We do not agree that Magnetics is in a similar position to that of Ampex. Ampex has been duplicating and copying, not the recordings of the licensed recording companies, but the master tapes of the recording companies, all with the latter’s permission and for a fee and with the consent of Marks, the copyright owner. See in this latter regard Colorado Pump & Supply Co. v. Febco, Inc., 472 F.2d 637 (10th Cir. 1973), where we recognized the right of a manufacturer to select the customers to whom he will sell so long as his conduct has no monopolistic or market control purposes. Permeating the entire “antitrust” argument of Magnetics is the belief that Marks comes into court with unclean hands to the end that it is precluded from obtaining equitable relief. The record in our view does not support this position. In this regard, the following language from Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951), is deemed appropriate: . We have here a conflict of policies: (a) that of preventing piracy of copyrighted matter and (b) that of enforcing the antitrust laws. We must balance the two, taking into account the comparative innocence or guilt of the parties, the moral character of their respective acts, the extent of the harm to the public interest, the penalty inflicted on the plaintiff if we deny it relief. As the defendants’ piracy is unmistakably clear, while the plaintiffs’ infraction of the antitrust laws is doubtful and at most marginal, we think the enforcement of the first policy should outweigh enforcement of the second. In this same general connection, see also Hoehn v. Crews, 144 F.2d 665 (10th Cir. 1944), aff’d sub nom, Garber v. Crews, 324 U.S. 200, 65 S.Ct. 600, 89 L.Ed. 870 (1945), where it was noted that it is not required that one who would seek equity must himself possess “spotless hands” and that it is not “every stain” that will bar one from equitable relief. Applying the rationale of such eases as Alfred Bell & Co. and Hoehn, we conclude that Marks is not precluded from relief because of any possible misconduct on its part. The long and short of this entire matter is that Marks owns a copyright to certain musical compositions and Magnetics seeks to use Marks’ property right without Marks’ consent and, in our view, in a manner not authorized by the compulsory license provisions of 17 U.S.C. § 1(e). As is reflected in the trial court’s decision in Edward B. Marks Music Corp. v. Colorado Magnetics, Inc., supra, the “issue of liability” was separated for trial purposes. On the record before it, the trial court erred in entering judgment for Magnetics. Under the circumstances, it should have entered judgment for Marks. Accordingly, the judgment of the trial court is hereby reversed and the cause remanded with directions that it enter judgment for Marks on the “issue of liability.” Subsequent proceedings to determine the relief to which Marks is entitled should be consonant with the views herein expressed. . Act of March 4, 1909, Pub.L.No.349, Chap. 320, 35 Stat. 1075; codified at 17 U.S.C. § 1(e). Congress felt this extension to have been necessary because the Supreme Court had held that perforated piano rolls and records were not “copies” of the composition which they reproduced. White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655 (1908). See 43 Cong.Rec. 3765-3767 (Mar. 3, 1909). . See H.R.Rep.No.2222, 60th Cong., 2d Sess. 7-8 (1909) ; Shapiro, Bernstein & Co., Inc. v. Remington Records, Inc., 265 F.2d 263 (2d Cir. 1959). However, it has been suggested that the breadth of the contemporary record industry belies any concern over monopolistic power. Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess. (H.R.Comm. Print 1961). . Nor will we at the same time permit such a general policy to be obscured by “drastic technological changes” that have arisen since the enactment of the statute. Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968). Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_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. UNITED STATES of America, Plaintiff, Appellee, v. Gerard Peter MOCCIOLA, Defendant, Appellant. No. 89-1471. United States Court of Appeals, First Circuit. Heard Sept. 6, 1989. Decided Dec. 5, 1989. Steven D. Silin, with whom Paul F. Macri and Berman, Simmons & Goldberg, P.A., Lewiston, Me., were on brief, for defendant, appellant. F. Mark Terison, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., was on brief, for .plaintiff, appellee. Before SELYA, Circuit Judge, ALDRICH and GIBSON, Senior Circuit Judges. Of the Eighth Circuit, sitting by designation. BAILEY ALDRICH, Senior Circuit Judge. Defendant-appellant Gerard Peter Mocci-ola, awoke one August morning in 1988 to the sounds of intruders shouting and his dog barking in his home. In the upstairs bedroom where he and his wife had been sleeping, defendant grabbed a loaded Browning Arms semi-automatic pistol and stepped into the darkened hallway. There he confronted the intruders: Maine State Police officers conducting a drug raid. One officer yelled at defendant to drop his gun. He did. In their subsequent search of the bedroom, police discovered three additional weapons, a total of 291 grams of cocaine in four different locations, a set of digital scales, cutting agents, and $35,000 in cash. In the criminal proceedings that followed his arrest, the grand jury issued a five-count indictment charging defendant with various violations of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 924(c)(1). He elected to go to trial on Count V, the weapons charge, and to plead guilty to Count IV, one of the cocaine possession charges. The three remaining counts were dropped. During the trial, defendant testified extensively concerning his cocaine use and dealing and the problems these had caused for his family. He also testified that the pistol had nothing to do with his illegal drug activity, but was present solely to protect his home and family. The jury acquitted. Some months later the court sentenced defendant on Count IV, the cocaine possession charge. Based on the presentence report and applying the Federal Sentencing Guidelines, the court imposed a sentence of 78 months imprisonment, a term of five years of supervised release, a fine of $15,-000 to be paid immediately, an additional fine of $98,400 to be paid during the period of incarceration and supervised release, and a special felony assessment of $50. On this appeal defendant asserts that the court improperly considered uncharged conduct in determining his sentence, and improperly applied the weapons enhancement despite his acquittal on that charge. Defendant also challenges the constitutionality of the Sentencing Guidelines as applied by the district court. We affirm, noting additional facts as needed. 1. Background Since their promulgation by the United States Sentencing Commission pursuant to the Sentencing Reform Act of 1984, codified at 18 U.S.C. §§ 3551 et seq. and 28 U.S.C. §§ 991-998, the Sentencing Guidelines have been the subject of repeated attack. Earlier this year, in Mistretta v. United States, — U.S. —, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), the Court upheld the Guidelines, finding no constitutional infirmity in the legislation or separation of powers problem in Congress’ “placement” of the Sentencing Commission within the judicial branch of government. Id. at 664. Constitutional challenges are now limited to whether the Guidelines are constitutional as applied in a particular case. The purpose of the Guidelines is not to remove the discretion judges historically have exercised when determining the appropriate sentence for an individual offender, but rather to reduce the often “unjustified]” and “shameful” consequences of the indeterminate-sentencing system of the past, when similarly situated offenders frequently received greatly disparate sentences. Mistretta, 109 S.Ct. at 651 (quoting S.Rep. No. 98-225 (1983)). For this reason the Commission promulgated a set of Guidelines based predominantly on a “charge offense” rather than “real offense” system. In other words, the offender would be punished for “the offense for which he was convicted,” as distinguished from the facts of the particular case. United States v. Guerrero, 863 F.2d 245, 248 (2d Cir.1988). This decision was a compromise, see Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1 (1988), and it is widely recognized that the “charge offense” approach is not pure; “it has a number of real elements.” Guerrero, 863 F.2d at 248 (citing Sentencing Guidelines ch. 1, pt. A, § 4(a), at p. 1.5). Some “flexibility [is retained] to provide individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.” Id.; see United States v. Seluk, 873 F.2d 15 (1st Cir.1989) (per curiam). As a general matter, therefore, although weighted toward the charge offense end of the spectrum, the Sentencing Guidelines permit the sentencing court the discretion to consider certain uncharged conduct, within the limits delineated below. 2. Uncharged Conduct There is no dispute concerning the process by which the court arrived at defendant’s sentence. When preparing the pre-sentence report the probation officer reviewed defendant’s sworn testimony at his earlier trial and estimated that during the approximately eighteen months before his arrest, defendant had used or sold between 1291 and 1648 grams of cocaine. According to the Drug Quantity Table contained in U.S.S.G. § 2D1.1, this established a Base Offense Level of 26. Guideline § 2D1.1(b)(1) permits a two-level enhancement for firearms possession, which was then added. Guideline § 3El.l(a) permits a two-level reduction for acceptance of responsibility, which was then subtracted, leaving the final Base Offense Level at 26. The probation officer then computed defendant’s criminal history and set it at category I. Combining these two calculations, the Sentencing Table in U.S.S.G. § Ch. 5, Pt. A established a sentencing range from 63-78 months. Finding defendant “a principal cocaine trafficker in the Androscoggin County Maine area,” and “the magnitude of the trafficking activities [is] deserving of serious punishment,” the court imposed the most severe sentence permitted by the Guidelines. The Sentencing Guidelines specifically provide that the sentencing court consider all “acts or omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). The background commentary further provides that, “in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they are part of the same course of conduct or part of a common scheme or plan as the court of conviction.” Id., comment, (backg’d). Under our deferential standard of review, whether uncharged drugs are part of a common scheme or plan is a factual finding we will disturb only if clearly erroneous. United States v. Wright, 873 F.2d 437, 443-44 (1st Cir.1989). Because the court based its finding that “all of the drugs in question were sold as part of a common scheme or plan” on defendant’s own testimony at his trial on Count V, we find a reasonable basis for the sentence and no clear error. United States v. Ehret, 885 F.2d 441, 444 (8th Cir.1989). The contention that using trial testimony in this manner chills the right to a jury trial and, in effect, penalizes candor, we have already answered. “It is well established that statements made for the purpose of one case are not necessarily immunized from use in other trials.” United States v. Perez-Franco, 873 F.2d 455, 460 (1st Cir.1989). Defendant was not compelled to testify about his illegal drug habit and dealing; he did so freely; the fifth amendment was waived. Id. at 461. So long as the information concerning the quantity of drugs involved has “sufficient indicia of reliability to support its probable accuracy,” the sentencing judge may consider it. United States v. Roberts, 881 F.2d 95, 106 (4th Cir.1989) (quoting U.S.S.G. § 6A1.3(a), p.s.). Defendant’s voluntary sworn testimony clearly meets this standard. 3. The Acquittal Although we have not specifically addressed the issue of whether a sentencing court may consider a prior, related acquittal under the Sentencing Guidelines, several other circuits have done so. See, e.g., United States v. Isom, 886 F.2d 736, 738 & n. 3 (4th Cir.1989). (“A verdict of acquittal demonstrates only a lack of proof beyond a reasonable doubt; it does not necessarily establish defendant’s innocence ... For facts at sentencing, the burden of proof by a preponderance obviously differs in a significant way from proof beyond a reasonable doubt.”); United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir.1989) (per curiam) (“Although the jury may have determined that the government had not proved all of the elements of the weapons offense beyond a reasonable doubt, such a determination does not necessarily preclude consideration of underlying facts of the offense at sentencing so long as those facts meet the reliability standard.”); United States v. Ryan, 866 F.2d 604, 609 (3d Cir.1989) (“Before the guidelines were promulgated, a court was permitted to consider evidence on counts of which a defendant was acquitted in sentencing the defendant ... [T]he guidelines, as we read them, indicate that the Commission intended to permit sentencing courts to continue to consider such information_”). As we recently noted, Guideline § 1B1.3 requires courts to take account of “relevant conduct” — conduct that, very roughly speaking, corresponds to those actions and circumstances that courts typically took into account when sentencing prior to the Guidelines’ enactment. Past practice, and authoritative case law, indicates that the Constitution does not, as a general matter, forbid such consideration. United States v. Wright, 873 F.2d at 441 (citing McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)). The Guidelines establish both the reason for the weapons enhancement and the circumstances in which it should be applied: The enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. For example, an enhancement would not be applied if the defendant, arrested at his residence, had an unloaded hunting rifle in the closet. U.S.S.G. § 2D1.1(b)(l), comment. Two courts of appeals recently ruled that this provision passes constitutional muster. United States v. Restrepo, 884 F.2d 1294 (9th Cir.1989); United States v. McGhee, 882 F.2d 1095 (6th Cir.1989). As in the ease of uncharged conduct, the facts underlying a prior acquittal may be considered by the sentencing court when these facts “appear[] reliable.” United States v. Wright, 873 F.2d at 441. Moccio-la admitted possessing the loaded pistol; state police found three other weapons in his bedroom. The jury’s not guilty verdict simply means that the government did not meet its considerable burden under the reasonable doubt standard. As this court has previously noted, “[c]ase law clearly establishes that the government need not prove facts used for sentencing ‘beyond a reasonable doubt.’ The Supreme Court has held that the ‘preponderance standard satisfies due process.’ ” Id. (quoting McMillan v. Pennsylvania, 477 U.S. at 91, 106 S.Ct. at 2419). That standard has been easily met here; it is not clearly improbable that Moc-eiola’s pistol was connected with the drug possession offense. Defendant’s final argument is that the weapons enhancement permitted by the Guidelines creates a eatch-22: He can plead guilty to the charge and be sentenced for firearms possession, or he can proceed to trial and, if acquitted, still be sentenced for firearms possession. This argument misperceives the distinction between a sentence and a sentence enhancement. Under 18 U.S.C. § 924(c)(1), had defendant been convicted of possessing a firearm in relation to drug trafficking, he would have received a separate, mandatory five-year sentence. Under the Guidelines, in contrast, possessing the firearm in connection to the drug offense added only 15 months to the sentence on the drug charge. Such enhancement is not a double jeopardy situation. United States v. Juarez-Ortega, 866 F.2d 747 (5th Cir.1989); United States v. Bernard, 757 F.2d 1439 (4th Cir.1985). As the preceding discussion has demonstrated, the sentencing court properly applied the Guidelines when determining Moc-ciola’s sentence. Therefore, the judgment of the district court is AFFIRMED. . Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years.... 18 U.S.C. § 924(c)(1). . The probation officer initially also added a two-level increase for obstruction of justice when Mocciola failed to report his ownership of a 40-acre parcel of land in North Monmouth, Maine. After Mocciola challenged this section of the presentence report, the government determined that Mocciola had accounted for this property and withdrew this recommended increase. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
sc_caseorigin	043	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. LUCAS et al. v. FORTY-FOURTH GENERAL ASSEMBLY OF COLORADO et al. No. 508. Argued March 31-April 1, 1964. Decided June 15, 1964. George Louis Creamer and Charles Ginsberg argued the cause and filed a brief for appellants. Anthony F. Zarlengo, Special Assistant Attorney General of Colorado, argued the cause for the Forty-Fourth General Assembly of Colorado et al., appellees. With him on the brief was Duke W. Dunbar, Attorney General of Colorado. Stephen H. Hart argued the cause for Johnson et al., appellees. With him on the brief were James Lawrence White, William E. Murane, Charles S. Vigil and Richard S. Kitchen, Sr. Solicitor General Cox, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Assistant Attorney General Marshall, Bruce J. Terris, Harold H. Greene and David Rubin. Mr. Chief Justice Warren delivered the opinion of the Court. Involved in this case is an appeal from a decision of the Federal District Court for the District of Colorado upholding the validity, under the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution, of the apportionment of seats in the Colorado Legislature pursuant to the provisions of a constitutional amendment approved by the Colorado electorate in 1962. I. Appellants, voters, taxpayers and residents of counties in the Denver metropolitan area, filed two separate actions, consolidated for trial and disposition, on behalf of themselves and all others similarly situated, in March and July 1962, challenging the constitutionality of the apportionment of seats in both houses of the Colorado General Assembly. Defendants below, sued in their representative capacities, included various officials charged with duties in connection with state elections. Plaintiffs below asserted that Art. V, §§ 45, 46, and 47, of the Colorado Constitution, and the statutes implementing those constitutional provisions, result in gross inequalities and disparities with respect to their voting rights. They alleged that “one of the inalienable rights of citizenship ... is equality of franchise and vote, and that the concept of equal protection of the laws requires that every citizen be equally represented in the legislature of his State.” Plaintiffs sought declaratory and injunctive relief, and also requested the Court to order a constitutionally valid apportionment plan into effect for purposes of the 1962 election of Colorado legislators. Proponents of the current apportionment scheme, which was then to be voted upon in a November 1962 referendum as proposed Amendment No. 7 to the Colorado Constitution, were permitted to intervene. A three-judge court was promptly convened. On August 10, 1962, the District Court announced its initial decision. Lisco v. McNichols, 208 F. Supp. 471. After holding that it had jurisdiction, that the issues presented were justiciable, and that grounds for abstention were lacking, the court below stated that the population disparities among various legislative districts under the existing apportionment “are of sufficient magnitude to make out a prima jade case of invidious discrimination . . . .” However, because of the imminence of the primary and general elections, and since two constitutional amendments, proposed through the initiative procedure and prescribing rather different schemes for legislative apportionment, would be voted upon in the impending election, the District Court continued the cases without further action until after the November 1962 election. Colorado legislators were thus elected in 1962 pursuant to the provisions of the existing apportionment scheme. At the November 1962 general election, the Colorado electorate adopted proposed Amendment No. 7 by a vote of 305,700 to 172,725, and defeated proposed Amendment No. 8 by a vote of 311,749 to 149,822. Amendment No. 8, rejected by a majority of the voters, prescribed an apportionment plan pursuant to which seats in both houses of the Colorado Legislature would purportedly be apportioned on a population basis. Amendment No. 7, on the other hand, provided for the apportionment of the House of Representatives on the basis of population, but essentially maintained the existing apportionment in the Senate, which was based on a combination of population and various other factors. After the 1962 election the parties amended their pleadings so that the cases involved solely a challenge to the apportionment scheme established in the newly adopted Amendment No. 7. Plaintiffs below requested a declaration that Amendment No. 7 was unconstitutional under the Fourteenth Amendment since resulting in substantial disparities from population-based representation in the Senate, and asked for a decree reapportioning both houses of the Colorado Legislature on a population basis. After an extended trial, at which a variety of statistical and testimonial evidence regarding legislative apportionment in Colorado, past and present, was introduced, the District Court, on July 16, 1963, announced its decision on the merits. Lisco v. Love, 219 F. Supp. 922. Splitting 2-to-l, the court below concluded that the apportionment scheme prescribed by Amendment No. 7 comported with the requirements of the Equal Protection Clause, and thus dismissed the consolidated actions. In sustaining the validity of the senatorial apportionment provided for in Amendment No. 7, despite deviations from population-based representation, the District Court stated that the Fourteenth Amendment does not require “equality of population within representation districts for each house of a bicameral state legislature.” Finding that the disparities from a population basis in the apportionment of Senate seats were based upon rational considerations, the court below stated that the senatorial apportionment under Amendment No. 7 “recognizes population as a prime, but not controlling, factor and gives effect to such important considerations as geography, compactness and contiguity of territory, accessibility, observance of natural boundaries, [and] conformity to historical divisions such as county lines and prior representation districts . ...” Stressing also that the apportionment plan had been recently adopted by popular vote in a statewide referendum, the Court stated: “[Plaintiffs’] argument that the apportionment of the Senate by Amendment No. 7 is arbitrary, invidiously discriminatory, and without any rationality [has been answered by the] voters of Colorado .... By adopting Amendment No. 7 and by rejecting Amendment No. 8, which proposed to apportion the legislature on a per capita basis, the electorate has made its choice between the conflicting principles.” Concluding, the District Court stated: “We believe that no constitutional question arises as to the actual, substantive nature of apportionment if the popular will has expressed itself. ... In Colorado the liberal provisions for initiation of constitutional amendments permit the people to act— and they have done so. If they become dissatisfied with what they have done, a workable method of change is available. The people are free, within the framework of the Federal Constitution, to establish the governmental forms which they desire and when they have acted the courts should not enter the political wars to determine the rationality of such action.” In dissenting, District Judge Doyle stated that he regarded the senatorial apportionment under Amendment No. 7 as irrational and invidiously discriminatory, and that the constitutional amendment had not sufficiently remedied the gross disparities previously found by the District Court to exist in Colorado’s prior apportionment scheme. Instead, he stated, the adopted plan freezes senatorial apportionment and merely retains the former system with certain minor changes. Equality of voting power in both houses is constitutionally required, the dissent stated, since there is no logical basis for distinguishing between the two bodies of the Colorado Legislature. In rejecting the applicability of the so-called federal analogy, Judge Doyle relied on this Court’s decision in Gray v. Sanders, 372 U. S. 368. He concluded that, although absolute equality is a practical impossibility, legislative districting based substantially on population is constitutionally required, and that the disparities in the apportionment of Senate seats under Amendment No. 7’s provisions cannot be rationalized. Notices of appeal from the District Court’s decision were timely filed, and we noted probable jurisdiction on December 9, 1963. 375 U. S. 938. II. When this litigation was commenced, apportionment of seats in the Colorado General Assembly was based on certain provisions of the State Constitution and statutory provisions enacted to implement them. Article V, § 45, of the Colorado Constitution provided that the legislature “shall revise and adjust the apportionment for senators and representatives . . . according to ratios to be fixed by law/’ at the sessions following the state enumeration of inhabitants in 1885 and every 10 years thereafter, and following each decennial federal census. Article Y, § 46, as amended in 1950, stated that “[t]he senate shall consist of not more than thirty-five and the house of not more than sixty-five members.” Article V, § 47, provided that: “Senatorial and representative districts may be altered from time to time, as public convenience may require. When a senatorial or representative district shall be composed of two or more counties, they shall be contiguous, and the district as compact as may be. No county shall be divided in the formation of a senatorial or representative district.” Article V, § 3, provides that senators shall be elected for four-year terms, staggered so that approximately one-half of the members of the Senate are elected every two years, and that all representatives shall be elected for two-year terms. Pursuant to these general constitutional provisions, the Colorado General Assembly has periodically enacted detailed statutory provisions establishing legislative districts and prescribing the apportionment to such districts of seats in both houses of the Colorado Legislature. Since the adoption of the Colorado Constitution in 1876, the General Assembly has been reapportioned or redistricted in the following years: 1881, 1891, 1901, 1909, 1913,1932, 1953, and, with the adoption of Amendment No. 7, in 1962. The 1932 reapportionment was an initiated measure, adopted because the General Assembly had neglected to perform its duty under the State Constitution. In 1933 the legislature attempted to thwart the initiated measure by enacting its ow.n legislative reapportionment statute, but the latter measure was held unconstitutional by the Colorado Supreme Court. The 1953 apportionment scheme, implementing the existing state constitutional provisions and in effect immediately prior to the adoption of Amendment No. 7, was contained in several statutory provisions which provided for a 35-member Senate and a 65-member House of Representatives. Section 63-1-2 of the Colorado Revised Statutes established certain population “ratio” figures for the apportionment of Senate and House seats among the State's 63 counties. One Senate seat was to be allocated to each senatorial district for the first 19,000 popu-' lation, with one additional senator for each senatorial district for each additional 50,000 persons or fraction over 48,000. One House seat was to be given to each representative district for the first 8,000 population, with one additional representative for each House district for each additional 25,000 persons or fraction over 22,400. Sections 63-1-3 and 63-1-6 established 25 senatorial districts and 35 representative districts, respectively, and allocated the 35 Senate seats and 65 House seats among them according to the prescribed population ratios. No counties were divided in the formation of senatorial or representative districts, in compliance with the constitutional proscription. Thus, senators and representatives in those counties entitled to more than one seat in one or both bodies were elected at large by all of the county’s voters. The City and County of Denver was given eight Senate seats and 17 House seats, and Pueblo County was allocated two Senate seats and four House seats. Other populous counties were also given more than one Senate and House seat each. Certain counties were entitled to separate representation in either or both of the houses, and were given one seat each. Sparsely populated counties were combined in multicounty districts. Under the 1953 apportionment scheme, applying 1960 census figures, 29.8% of the State’s total population lived in districts electing a majority of the members of the Senate, and 32.1% resided in districts electing a majority of the House members. Maximum population-variance ratios of approximately 8-to-l existed between the most populous and least populous districts in both the Senate and the House. One senator represented a district containing 127,520 persons, while another senator had only 17,481 people in his district. The smallest representative district had a population of only 7,867, while another district was given only two House seats for a population of 127,520. In discussing the 1953 legislative apportionment scheme, the District Court, in its initial opinion, stated that “[f] actual data presented at the trial reveals the existence of gross and glaring disparity in voting strength as between the several representative and senatorial districts,” and that “[t]he inevitable effect . . . [of the existing apportionment provisions] has been to develop severe disparities in voting strength with the growth and shift of population.” Amendment No. 7 provides for the establishment of a General Assembly composed of 39 senators and 65 representatives, with the State divided geographically into 39 senatorial and 65 representative districts, so that all seats in both houses are apportioned among single-member districts. Responsibility for creating House districts “as nearly equal in population as may be” is given to the legislature. Allocation of senators among the counties follows the existing scheme of districting and apportionment, except that one sparsely populated county is detached from populous Arapahoe County and joined with four others in forming a senatorial district, and one additional senator is apportioned to each of the counties of Adams, Arapahoe, Boulder and Jefferson. Within counties given more than one Senate seat, senatorial districts are to be established by the legislature “as nearly equal in population as may be.” Amendment No. 7 also provides for a revision of representative districts, and of senatorial districts within counties given more than one Senate seat, after each federal census, in order to maintain conformity with the prescribed requirements. Pursuant to this constitutional mandate, the Colorado Legislature, in early 1963, enacted a statute establishing 66 representative districts and creating senatorial districts in counties given more than one Senate seat. Under the newly adopted House apportionment plan, districts in which about 45.1% of the State’s total population reside are represented by a majority of the members of that body. The maximum population-variance ratio, between the most populous and least populous House districts, is approximately 1.7-to-l. The court below concluded that the House was apportioned as nearly on a population basis as was practicable, consistent with Amendment No. 7’s requirement that “[n]o part of one county shall be added to another county or part of another county” in the formation of a legislative district, and directed its concern solely to the question of whether the deviations from a population basis in the apportionment of Senate seats were rationally justifiable. Senatorial apportionment, under Amendment No. 7, involves little more than adding four new Senate seats and distributing them to four populous counties in the Denver area, and in substance perpetuates the existing senatorial apportionment scheme. Counties containing only 33.2% of the State’s total population elect a majority of the 39-member Senate under the provisions of Amendment No. 7. Las Animas County, with a 1960 population of only 19,983, is given one Senate seat, while El Paso County, with 143,742 persons, is allotted only two Senate seats. Thus, the maximum population-variance ratio, under the revised senatorial apportionment, is about 3.6-to-l. Denver and the three adjacent suburban counties contain about one-half of the State’s total 1960 population of 1,753,947, but are given only 14 out of 39 senators. The Denver, Pueblo, and Colorado Springs metropolitan areas, containing 1,191,832 persons, about 68%, or over two-thirds of Colorado’s population, elect only 20 of the State’s 39 senators, barely a majority. The average population of Denver’s eight senatorial districts, under Amendment No. 7, is 61,736, while the five least populous districts contain less than 22,000 persons each. Divergences from population-based representation in the Senate are growing continually wider, since the underrepresented districts in the Denver, Pueblo, and Colorado Springs metropolitan areas are rapidly gaining in population, while many of the overrepresented rural districts have tended to decline in population continuously in recent years. III. Several aspects of this case serve to distinguish it from the other cases involving state legislative apportionment also decided this date. Initially, one house of the Colorado Legislature is at least arguably apportioned substantially on a population basis under Amendment No. 7 and the implementing statutory provisions. Under the apportionment schemes challenged in the other cases, on the other hand, clearly neither of the houses in any of the state legislatures is apportioned sufficiently on a population basis so as to be constitutionally sustainable. Additionally, the Colorado scheme of legislative apportionment here attacked is one adopted by a majority vote of the Colorado electorate almost contemporaneously with the District Court's decision on the merits in this litigation. Thus, the plan at issue did not result from prolonged legislative inaction. How.ever, the Colorado General Assembly, in spite of the state constitutional mandate for periodic reapportionment, has enacted only one effective legislative apportionment measure in the past 50 years. As appellees have correctly pointed out, a majority of the voters in every county of the State voted in favor of the apportionment scheme embodied in Amendment No. 7’s provisions, in preference to that contained in proposed Amendment No. 8, which, subject to minor deviations, would have based the apportionment of seats in both houses on a population basis. However, the choice presented to the Colorado electorate, in voting on these two proposed constitutional amendments, was hardly as clear-cut as the court below regarded it. One of the most undesirable features of the existing apportionment scheme was the requirement that, in counties given more than one seat in either or both of the houses of the General Assembly, all legislators must be elected at large from the county as a whole. Thus, under the existing plan, each Denver voter was required to vote for eight senators and 17 representatives. Ballots were long and cumbersome, and an intelligent choice among candidates for seats in the legislature was made quite difficult. No identifiable constituencies within the populous counties resulted, and the residents of those areas had no single member of the Senate or House elected specifically to represent them. Rather, each legislator elected from a multimember county represented the county as a whole. Amendment No. 8, as distinguished from Amendment No. 7, while purportedly basing the apportionment of seats in both houses on a population basis, would have perpetuated, for all practical purposes, this debatable feature of the existing scheme. Under Amendment No. 8, senators were to be elected at large in those counties given more than one Senate seat, and no provision was made for subdistricting within such counties for the purpose of electing senators. Representatives were also to be elected at large in multimember counties pursuant to the provisions of Amendment No. 8, at least initially, although subdistricting for the purpose of electing House members was permitted if the voters of a multimember county specifically approved a representative subdistrict-ing plan for that county. Thus, neither of the proposed plans was, in all probability, wholly acceptable to the voters in the populous counties, and the assumption of the court below that the Colorado voters made a definitive choice between two contrasting alternatives and indicated that “minority process in the Senate is what they want” does not appear to be factually justifiable. Finally, this case differs from the others decided this date in that the initiative device provides a practicable political remedy to obtain relief against alleged legislative malapportionment in Colorado. An initiated measure proposing a constitutional amendment or a statutory enactment is entitled to be placed on the ballot if the signatures of 8% of those voting for the Secretary of State in the last election are obtained. No geographical distribution of petition signers is required. Initiative and referendum has been frequently utilized throughout Colorado’s history. Additionally, Colorado courts have traditionally not been hesitant about adjudicating controversies relating to legislative apportionment. However, the Colorado Supreme Court, in its 1962 decision discussed previously in this opinion, refused to consider or pass upon the federal constitutional questions, but instead held only that the Colorado General Assembly was not required to enact a reapportionment statute until the following legislative session. IV. In Reynolds v. Sims, ante, p. 533, decided also this date, we held that the Equal Protection Clause requires that both houses of a bicameral state legislature must be apportioned substantially on a population basis. Of course, the court below assumed, and the parties apparently conceded, that the Colorado House of Representatives, under the statutory provisions enacted by the Colorado Legislature in early 1963 pursuant to Amendment No. 7’s dictate that the legislature should create 65 House districts “as nearly equal in population as may be,” is now apportioned sufficiently on a population basis to comport with federal constitutional requisites. We need not pass on this question, since the apportionment of Senate seats, under Amendment No. 7, clearly involves departures from population-based representation too extreme to be constitutionally permissible, and there is no indication that the apportionment of the two houses of the Colorado General Assembly, pursuant to the 1962 constitutional amendment, is severable. We therefore conclude that the District Court erred in holding the legislative apportionment plan embodied in Amendment No. 7 to be constitutionally valid. Under neither Amendment No. 7’s plan, nor, of course, the previous statutory scheme, is the overall legislative representation in the two houses of the Colorado Legislature sufficiently grounded on population to be constitutionally sustainable under the Equal Protection Clause. 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songer_procdis	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court uphold the dismissal by district court on procedural grounds?" 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". Al MUMFORD et al., Plaintiffs-Appellants, v. James M. GLOVER et al., Defendants-Appellees. No. 73-3037. United States Court of Appeals, Fifth Circuit. Nov. 11, 1974. William L. Irons, James D. Forstman, Birmingham, Ala., for plaintiffs-appellants. William F. Gardner, Sydney F. Frazier, Jr., Birmingham, Ala., for Ala. Pipe, and others. William E. Mitch, Birmingham, Ala., for Local 324, Glover, and others. Before BELL, GOLDBERG and CLARK, Circuit Judges. GOLDBERG, Circuit Judge: This case stands for the proposition that those with a cause of action should not be barred from the fields of advocacy merely because they have trouble making their way through the jurisdictional thicket. We find ourselves cutting the path which will allow plaintiffs to state their case in district court. The district court dismissed the plaintiffs’ complaint “for failure to state a claim upon which relief can be granted.” Upon review here for the limited purpose of determining the validity of the dismissal, we look to see if there are any facts which plaintiffs could prove that would entitle them to relief. Czosek v. O’Mara, 1970, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21; Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; Hooper v. Mountain States Securities Corp., 5 Cir. 1960, 282 F.2d 195, cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693. As a part of this assessment, we must accept the facts alleged to be true. Walker Process Equipment, Inc. v. Food Machinery and Chemical Corp., 1965, 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247; Hargrave v. McKinney, 5 Cir. 1969, 413 F.2d 320. Plaintiffs are members of Local No. 324 of the International Molders and Allied Workers Union [the Union or Local 324] and are employed by the Mead Corporation [Mead or the Company]. The Union and Mead entered into a collective bargaining agreement on February 19, 1972. Article 19 of this agreement carried forward a previous agreement setting up and regulating a pension plan. Section 20 of Article 19 read: “The above plan shall not be subject to renegotiation until June 30, 1972." The Agreement itself was to remain in force through December 31, 1974, and thereafter until one party or the other gave 60 days notice of termination. Plaintiffs-appellants allege that ' the Union scheduled a meeting for June 3, 1972, to elect members to the committee which would bargain for changes in the Pension Plan. Plaintiffs prepared for that meeting by selecting two nominees dedicated to terminating the pension fund from each Mead plant. They also endeavored to insure that a majority of the membership would show up at the meeting so that their nominees would be elected. But when the meeting was held officers of Local 324 announced that they could not get order and then adjourned the meeting. These officers announced that the meeting would be rescheduled. But two days later employees learned that the president of the Union had instead appointed a bargaining committee on his own. At a subsequent union meeting, on June 17, Union officers assured the membership that a vote would be taken on any plan which this committee brought back. During the ensuing weeks various employees demanded of Union leadership orally and in writing that the pension plan not be extended. On August 15 a petition to impeach the Union leadership, signed by 1,000 of the Local’s 1,800 members, was presented to the Union. On August 18 an amendment to the Pension Plan was executed by the Union and Mead without ratification by the Union membership. Subsequently a petition to rescind the agreement was filed by 1,300 of the Local’s membership. Officers of the Local ignored that petition. Plaintiffs filed this suit against Mead, the Union, and trustees of the Pension Trust on July 17, 1972, seeking a termination of the Pension Plan and a refund of involuntary payroll deductions currently being held by the Pension Trust. Subsequent to the dismissal below, the Union and the Company entered into an agreement whereby the Pension Fund refunded $1,700,000 to the class plaintiffs. This sum was made up of employee contributions to the Pension Fund plus interest on those contributions. Thus, at the time of oral argument the appellees had dispersed most of the booty. Except for incremental benefits, infra, and possible attorney’s fees we would have a classic case of mootness. We were not advised of the division of the spoils except by two sentences at the end of Appellant Mead’s brief and in Appellee’s “Alternative Motion for Remand for Determination of Attorney’s Fees.” Disconcerting as this may be, forcing us to judge in a very sensitive area and in a near vacuum, we do so, knowing of possible remaining remnants on the battlefield. What started out as a potential armageddon will end with a minor skirmish requiring us to fire jurisdictional cannon which will be heard on future battlegrounds. Plaintiffs-appellants claim that § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 gives federal district court jurisdiction over this suit. “Plaintiffs further aver that the Pension Plan . . . has expired and contrary to the provisions contained in said Pension Plan and the collective bargaining' agreement . is being maintained in violation of the foregoing agreements. >> A further claim, cognizable under Section 185 when it arises in the context of a collective bargaining agreement, was that the Union leadership abused their duty of fair representation. “Workers further contend that Local 324 . . . failed to fairly represent the employees within the meaning of Section 159 of Title 29, U.S.C. A. ... in executing an agreement contrary to the written and oral demands of employee-members. The affidavits submitted . . . established that bad faith and hostile discrimination in the Union’s breach of their statutory duty by signing an agreement seeking to breathe life into a defunct pension plan.” The contention that the collective bargaining agreement was violated by continuation of the Pension Plan is based on the Appellants’ apparent belief that the phrase in Article 19, Section 20 “shall not be subject to renegotiation” means “shall terminate.” We do not read the agreement as plaintiffs do, and we therefore find that there was no violation of the collective bargaining agreement in the continuation of the Pension Plan after June 30, 1972. The phrase “shall not be open to renegotiation until June 30, 1972” in its plain sense merely prohibits alteration before that date. It does not suggest that renegotiation or any other act is required in order for the plan to remain in effect beyond June 30, 1972. Certainly the documents presented to this Court do not suggest a different intention on the part of those who concluded the first agreement. Nothing in the collective bargaining agreement supports such an interpretation of “renegotiate” and there are no directives for the Pension Fund in the event of termination. The prospect of termination is not covered in the second document submitted, the “Rules and Regulations of the Pension Plan.” Article IX, Section 2 of the Rules and Regulations reads: “If this Pension Plan is discontinued, the assets then remaining in the Pension Fund after providing for the expenses of the Plan, shall be allocated in the following manner. . . .” Rules and Regulations at 20. The section is stated in the conditional; if “renegotiate” was intended to mean “terminate” it is unlikely that the termination provision would have been so worded. Admittedly, when a pension provision provides for renegotiation one of the possibilities opened is that the negotiators may decide to terminate the plan. But the possibility is not the certainty. The only certainty encompassed by the term “renegotiation” is that the parties are permitted to negotiate about the contents of the plan once again. This is what the Union and the Company did, and, in itself, this did not violate the contract between Local 324 and Mead. We therefore agree with the district court that plaintiffs did not state a cause of action when they contended that Union and Company had violated the terms of the collective bargaining agreement in not terminating the Pension Plan on June 30, 1972. We must now address ourselves to the issues raised by the allegation that the Union has abused its duty of fair representation. Such a duty is legally compelled in contexts other than that in which a labor organization and employer are accused of violating contract terms. There is a duty of fair representation in all Union dealings implicit in the Congressional grant to unions, in 29 U.S.C. § 159(a), of the exclusive power to represent all employees in the collective bargaining unit. Vaca v. Sipes, 1967, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842, 850; Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 337, 73 S.Ct. 681, 685, 97 L.Ed. 1048. This Court has never ruled on the question of whether Section 185 might be used as a jurisdictional base for a claim of abuse of the duty of fair representation outside of the contractual context. Today we hold that Section 185 does not provide such jurisdiction. The plaintiffs-appellants’ essential assertion in the instant case is not that any specific term of the collective bargaining agreement, such as the proper operation of a seniority clause, was violated. Rather they claim that the Union had failed to fairly represent them in the administration of the Pension Plan. The existence of a pension plan clause provides the context within which the Union must act, but there is no stipulation in the clause itself which the Union or Mead has violated. See Nedd v. United Mine Workers, 3 Cir. 1968, 400 F.2d 103. Section 185 provides jurisdiction only in “suits for violation of contracts between an employer and a labor organization ... or between any such labor organizations” (emphasis supplied). This section expressly requires a violation of a labor contract before it may be employed as a jurisdictional device. And the literal meaning of the statute is the first reference for Congressional intent. Perry v. Commerce Loan Co., 1966, 383 U.S. 392, 400, 86 S.Ct. 852, 15 L.Ed.2d 827, 833, quoting United States v. American Trucking Associations, 1940, 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed. 1345, 1350; Flora v. United States, 1958, 357 U.S. 63, 65, 78 S.Ct. 1079, 2 L.Ed.2d 1165, 1167; Ray Bailie Trash Hauling, Inc. v. Kleppe, 5 Cir. 1973, 477 F.2d 696, 707. It is on this basis that we decide that Section 185 will not serve to bring this action before a federal court. Accord, Leskiw v. Local 1470, Electrical Workers, 3 Cir. 1972, 464 F.2d 721; Adams v. Budd Co., 3 Cir. 1965, 349 F.2d 368; Palnau v. Detroit Edison Co., 6 Cir. 1962, 301 F.2d 702. This Court has held, however, that federal jurisdiction may be sustained when granted by a federal statute even if the plaintiff has not relied upon that statute in the district court. Paynes v. Lee, 5 Cir. 1967, 377 F.2d 61, 63; see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1206 at 77-78 (1969). Therefore, we conclude that this suit can move forward under the jurisdictional aegis of 28 U.S.C. § 1337. As previously noted, the statutory duty of fair representation is implied under Section 9(a) of the National Labor Relations Act, 29 U.S.C. § 159(a). The N.L. R.A. is an “Act of Congress regulating commerce,” Capital Service, Inc. v. N. L. R. B., 1954, 347 U.S. 501, 504, 74 S. Ct. 699, 702, 98 L.Ed. 887, 891, so that a cause of action for the breach of Section 9(a) is one “arising under” a statute regulating commerce within the meaning of Section 1337. This Court has previously found jurisdiction under Section 1337 for controversies involving the National Labor Relations Act in Templeton v. Dixie Color Printing Co., 5 Cir. 1971, 444 F.2d 1064, 1067 and Boire v. Miami Herald Pub. Co., 5 Cir. 1965, 343 F.2d 17, 20. Four other circuit courts have found that the “arising under” jurisdiction encompasses actions involving the duty of fair representation. Retana v. Local 14, Apartment Operators, 9 Cir. 1972, 453 F.2d 1018, 1021-1022; Waters v. Wiscon. Steel Works, 7 Cir. 1970, 427 F.2d 476, 490; de Arroyo v. Sindicato de Trabajadores Packinghouse, 1 Cir. 1970, 425 F.2d 281, 283 n. 1; Nedd v. United Mine Workers, 3 Cir. 1968, 400 F.2d 103, 106. This conclusion is buttressed by Tunstall v. Brotherhood of Locomotive Firemen, 1945, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187, 193, in which the Supreme Court held that Section 1337 provided a basis for district court jurisdiction over suits for abuse of the duty of fair representation implied from “comparable provisions of the Railway Labor Act.” Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 337, 73 S.Ct. 681, 686, 97 L.Ed. 1048, 1057. The jurisdiction thus bestowed by Section 1337 need not be snatched away by the doctrine of pre-emption. This Court had once upheld the primacy of the N.L.R.B. in duty of fair representation cases. Local 12, Rubber Workers v. NLRB, 5 Cir. 1966, 368 F.2d 12, involved allegations of a breach of the duty of fair representation, predicated directly on Section 9(a) of the Act and not on 29 U.S.C. § 185. In sending the case to the N.L.R.B. for consideration the Court noted: “. . .we are convinced that the rights of the individual employees to be fairly represented can be more fully achieved within the spirit of the act by recognizing the Board as the appropriate body to meet the challenge of uniformly administering standards of fair representation.” 368 F.2d at 23. But this opinion preceded the Supreme Court’s ruling on the matter in Vaca v. Sipes, 1967, 386 U.S. 171, 87 S. Ct. 903, 17 L.Ed.2d 842. In Vaca the plaintiff asserted a Section 185 breach and the question presented was one of state court pre-emption. But the Supreme Court referred to our decision in Rubber Workers, not a Section 185 case, in capsuling the Circuit Court disputes which helped foster its discussion. The issue it then addressed was that of preemption in general and not as limited to the Section 185 context. The reasoning of the Court is worth quoting at length: A primary justification for the pre-emption doctrine — -the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose — is not applicable to cases involving alleged breaches of the union's duty of fair representation. The doctrine was judicially developed in Steele and its progeny, and suits alleging breach of the duty remained judicially cognizable long after the NLRB was given unfair labor practice jurisdiction over union activities by the L. M.R.A. Moreover, when the Board declared in Miranda Fuel that a union’s breach of its duty of fair representation would henceforth be treated as an unfair labor practice, the Board adopted and applied the doctrine as it had been developed by the federal courts. See 140 N.L.R.B., at 184-186. Finally, as the dissenting Board members in Miranda Fuel have pointed out, fair representation duty suits often require review of the substantive positions taken and policies pursued by a union in its negotiation of a collective bargaining agreement and in its handling of the grievance machinery ; as these matters are not normally within the Board’s unfair labor practice jurisdiction, it can be doubted whether the Board brings substantially greater expertise to bear on these problems than do the courts, which have been engaged in this type of review since the Steele decision [T]he duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law. Were we to hold that the courts are foreclosed by the NLRB’s Miranda Fuel decision from this traditional supervisory jurisdiction, the individual employee injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review of his complaint, since the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint. See United Electrical Contractors Assn. v. Ordman, 366 F.2d 776, cert. denied, 385 U.S. 1026 [87 S.Ct. 753, 17 L.Ed.2d 674], The existence of even a small group of cases in which the Board would be unwilling or unable to remedy a union’s breach of duty would frustrate the basic purposes underlying the duty of fair representation doctrine. For these reasons, we cannot assume from the NLRB’s tardy assumption of jurisdiction in these cases that Congress, when it enacted N.L.R.A. § 8(b) in 1947, intended to oust the courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee's statutory representative. 386 U.S. 181-183, 87 S.Ct. 903, 912, 17 L.Ed.2d 852-853 (footnotes omitted). This position was reaffirmed in Amalgamated Assn. of Street Employees v. Lockridge, 1971, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473, wherein the Court noted: “[I]n Yaca v. Sipes . . . we held that an action seeking damages for injury inflicted by a breach of a union’s duty of fair representation was judicially cognizable in any event, that is, even if the conduct complained of was arguably protected or prohibited by the National Labor Relations Act and whether or not the lawsuit was bottomed on a collective agree■ment.” 403 U.S. at 299, 91 S.Ct. at 1924, 29 L.Ed.2d at 490 (emphasis added). This resolution of the pre-emption question is all the more compelled by the treatment of duty of fair representation cases by the N.L.R.B. In Miranda Fuel Co., 1962, 140 N.L.R.B. 181, enforcement denied, 2 Cir. 1963, 326 F.2d 172, a divided Board held that a breach of the duty of fair representation violated Section 8(b) of the Act. The majority held that Section 7 gave employees the right to be free from unfair treatment at the hands of their exclusive bargaining agent and “that Section 8(b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious or unfair.” 140 N. L.R.B. at 185. Since Miranda, however, the Board has been retreating from the application of a broad duty of fair representation criterion. Rather, it has found violations on traditional 8(b)(1)(A) and 8(b)(2) grounds: most generally where there were allegations of racial discrimination or a breach of the “duty of fair dealing,” which duty merely requires notice to a member of his union obligations before the union may request that the employer discharge him for avoiding them. See, generally, Note, Labor Law Preemption and Individual Rights, 51 Tex.L.Rev. 1037, 1074-84 (1973). Thus the application of Miranda might, in practice, rob a plaintiff of his cause of action if the cause does not fit in one of these narrow niches. In the absence of an overriding reason, this Court is loathe to make an empty ritual of a plenary right. On remand, the court below should consider whether the facts alleged by plaintiffs are true, and whether in their full presentation they reveal a breach of the duty of fair representation. A legally cognizable breach in this case could stem from proof of Union hostility towards the plaintiff class. Vaca v. Sipes, supra; Amalgamated Association of Street Employees, supra; Cunningham v. Erie, R.R., 2 Cir. 1966, 358 F.2d 640. It might also stem from proof that Union leadership had treated the wishes of membership in a perfunctory fashion. While perhaps not constituting a breach under the “hostility” classification, evidence of nadiral disinterest in the desires of membership might make out a case of arbitrary treatment. See Local 12, Rubber Workers v. NLRB, 5 Cir. 1966, 368 F.2d 12, 18; Griffin v. U. A. W., 4 Cir. 1972, 469 F.2d 181; Day v. U. A. W. Local 36, 6 Cir. 1972, 466 F.2d 83; de Arroyo v. Sindicato de Trabajadores Packinghouse, 1 Cir. 1970, 425 F.2d 281, cert. denied, 400 U.S. 877, 91 S.Ct. 117, 27 L.Ed.2d 114; Thompson v. Internat. Assn. of Machinists, E.D.Va.1966, 258 F.Supp. 235. Of course, the mere fact that a new plan was negotiated does not in itself indicate that Union leadership was acting with hostility or disregard for membership. Leadership might very well show that they were trying to act in the best interests of all union members and were devoting sufficient energies to that representational effort. On their face, the facts alleged evidence neither invidious classification nor disparate treatment of membership, the other grounds for.finding breach of the duty of fair representation. As noted above, Appellees have already refunded pension contributions, plus interest, to employees. Thus, if hostility or disinterest on the part of the Union towards its members is proven in the district court, relief granted from the Union should be limited. Relief would amount to the incremental damage caused to the membership by the delay in the refund from the time that renegotiation could begin to the time when refunds were actually made. Should plaintiffs-appellants prevail or accept a settlement their attorneys should be awarded a reasonable sum for bringing this appeal and for prosecuting the case upon remand. In addition, if the court below finds that the plaintiffs’ original suit, even though dismissed, precipitated the refund, then counsel is entitled to recover the reasonable costs of bringing the original suit. Kahan v. Rosenstiel, 3 Cir. 1970, 424 F.2d 161. Such fees should be prorated against the funds settled upon each of the plaintiffs by the Pension Plan. Where plaintiff class members are without the funds to reimburse attorneys, such funds may be appropriated from a member’s share of any new fund which might be created by relief in the trial on remand. Reversed and remanded. . 29 U.S.C. § 185(a) reads: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. . Appellants also contend that the collective bargaining agreement violates Ala.Code tit. 26, § 375(5) in that it makes contributions to the pension fund a condition of employment. This argument is completely without merit. Ala.Code tit. 26, § 375(5) reads: “No employer shall require any person, as a condition of employment or continuation of employment, to pay any dues, fees or other charges of any kind to any labor union or labor organization.” The money here was paid into a pension trust and not to, or for the benefit of, the Union. . Remarkably, this point is assumed throughout the Appellants’ Complaint and Brief. Not a sentence argues to the point. . 29 U.S.C. § 159(a) provides: Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay; wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided jnrilier, That the bargaining representative has been given opportunity to be present at such adjustment. . In Deaton Truck Line, Inc. v. Local 612, Teamsters, 5 Cir. 1962, 314 F.2d 418, this Court held that Section 185 is “broad enough to include any agreement significant to the maintenance of labor peace between the employer and the Union.” 314 F.2d at 422. But nowhere does that opinion suggest that a cause of action is provided in the absence of the violation of an agreement. . 28 U.S.C. § 1337 reads: The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies. . Thus, technically, N.L.R.B. Jurisdiction is based on a Section 7 implication of the duty of fair representation whose violation is brought before the Board under Section 8(b)(1)(A). The courts find jurisdiction through a Section 9 substantive violation and 28 U.S.C. § 1337 jurisdiction. But the different grounds do not in themselves appear to compel substantive distinctions in disposition of the cases. . It should be noted that in this case the plaintiffs-appellants allege that they constitute a majority of the Union membership. All previous fair representation cases which have come to the attention of this Court involved the allegation of either an individual or minority of the membership. Majority status is usually sufficient to insure that one’s view is heard. But while this factor greatly increases the probability of fair representation it does not bar a suit when fair representation fails. Other avenues of relief generally open to a majority might not be adequate in the present case. Plaintiffs might not want to institute a decertification action because they may believe that the Union is adequately representing their interests outside of the particular action they are bringing. And internal union democracy, such as election of officers, may not be available in sufficient time to stave off the damage done by Union adherence to an undesirable contract. Question: Did the court uphold the dismissal by district court on procedural grounds? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_usc1	28	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. James W. JOHNSON, Appellant, v. UNITED STATES of America, Appellee. No. 19159. United States Court of Appeals District of Columbia Circuit. Submitted May 12, 1965. Decided Sept. 1, 1965. Appellant filed a brief, pro se, and his case was treated as submitted on the brief. Mr. Patrick H. Corcoran, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief, submitted on the brief for appellee. Before Bazelon, Chief Judge, and Wright and Leventhal, Circuit Judges. PER CURIAM: On January 16, 1956, a two-count indictment was filed in the District Court charging appellant with rape and robbery. After a plea of not guilty, appellant was tried and found guilty of assault with intent to commit rape and robbery. This appeal is from the District Court’s denial without hearing of appellant’s motion, filed pursuant to 28 U.S.C. § 2255, to set aside this 1956 conviction. Appellant’s first contention is that he was convicted of a crime, assault with intent to rape, for which he was not indicted. Assuming for purposes of this appeal that this contention states sufficient grounds for collateral attack, appellant cannot prevail on this point for assault with intent to rape is a lesser included offense in the charge of rape. United States v. Lovely, E.D.S.C., 77 F.Supp. 619, 621, reversed on other grounds, 4 Cir., 169 F.2d 386 (1948); People v. Kimball, 122 Cal.App.2d 211, 264 P.2d 582 (1953). On appeal, appellant makes certain allegations, not made below, which might form the basis for a successful claim of ineffective assistance of counsel. Since the issue was not presented below, we do not reach the question on this appeal. We do note, however, that our judgment here is without prejudice to appellant’s raising the issue in a later motion by proper and sufficient pleadings in the District Court. Affirmed. . 22 D.C.Code § 2801 (1961). . 22 D.C.Code § 2901 (1961). . Compare Ex parte Bain, 121 U.S. 1, 7 S.Ct 781, 30 L.Ed. 849 (1887); and see Crosby v. United States, 119 U.S. App.D.C. 244, 339 F.2d 743 (1964). 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_genapel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. RELIABLE COAL CORPORATION, Petitioner, v. Rogers C. B. MORTON, Secretary of the Interior and his delegate, and the Board of Mine Operations Appeals of the Department of the Interior, Respondents. No. 72-1477. United States Court of Appeals, Fourth Circuit. Argued Dec. 8, 1972. Decided May 3, 1973. Brooks E. Smith, Kingwood, W. Va. (Dailey & Smith, Kingwood, W. Va., on brief), for petitioner. Michael Kimmel, Atty., U. S. Dept, of Justice, Civil Div. (Harlington Wood, Jr., Asst. Atty. Gen., Alan S. Rosenthal, Atty., U. S. Dept, of Justice, Civil Div., J. Philip Smith, Asst. Sol., U. S. Dept, of Interior, on brief), for respondents. Charles L. Widman, Atty., International Union, United Mine Workers of America (Edward L. Carey, and Willard P. Owens, Washington, D. C., on brief), for respondent, International Union, United Mine Workers of America. Before BUTZNER, FIELD and WIDENER, Circuit Judges. FIELD, Circuit Judge: Reliable Coal Corporation seeks review of a decision of the Board of Mine Operations Appeals which affirmed the Hearing Examiner in denying Reliable’s petitions to modify certain mandatory safety standards contained in Sections 303(d)(1) and 303(Z) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 863(d)(1) and 863(Z). Additionally, petitioner complains of the Board’s determination that review of the reasonableness of time for abating a violation of Section 303(d)(1) was rendered moot upon Reliable’s compliance with the standard. 2Jurisdiction for this review is based upon Section 106, 30 U.S.C. § 816. Under Section 301(e) of the Act, 30 U.S.C. § 861(e), the Secretary may, upon petition by an operator or the representative of miners, modify the application of any mandatory safety standard to a mine if he determines that “an alternative method of achieving the result of such standard exists which will at all times guarantee no less than' the same measure of protection afforded * * * by such standard” or that “the application of such standard to such mine will result in a diminution of safety to the miners.” Asserting that its Kanes Creek Mine was entitled to modification of the mandatory standards of Section 303(Z) under both criteria of Section 301(c), Reliable filed its initial petition for modification on January 5, 1971. On January 7, 1971, a preshift inspection resulted in the issuance of an abatement order for violating Section 303(d)(1) of the Act to take effect January 22, 1971 Subsequent to this order Reliable filed separate petitions challenging the reasonableness of time of the order as well as the application of Section 303(d)(1) on the basis that it was in compliance with the standard by an alternative method that attains the same result and assures no less than the same measure of protection to the miners. These petitions were consolidated for hearing by the Examiner. In both instances, the modifications sought by Reliable pertain to testing devices used to detect methane in a mine. Section 303(d)(1) requires the use of a methane detector to check for accumulations of methane within three hours immediately preceding the beginning of the shift. In lieu of the detector, Reliable would test with a permissible flame safety lamp, a device commonly used for this purpose prior to the 1969 Act. Section 303(i) requires as an additional methane detecting device that a methane monitor be installed on any electric face cutting equipment, continuous miner, longwall face equipment, and loading machine, except that no monitor is required to be installed on the equipment prior to the date such equipment is required to be permissible under Section 305(a), 30 U.S.C. § 865(a). Reliable seeks to avoid the mandate of this provision of the Act by making what it terms “continuous routine periodic checks” with a methane detector or permissible flame safety lamp. The Examiner, whose decision was affirmed by the Board, concluded that neither of the modifications proposed by Reliable would meet the requirements of Section 301(c) that they guarantee the same measure of protection to the miners as the mandatory standards. In reaching this conclusion, the Examiner rejected Reliable’s argument that he should determine whether the Kanes Creek Mine is not gassy or potentially gassy. While permitting evidence on this question at the hearing, he concluded that the Act abolished the gassy/nongassy distinction and therefore it was unnecessary for him to make a factual finding relative to the potential for methane accumulations in Reliable’s Kanes Creek Mine. Reliable’s position on this review rests on the premise that Sections 301(c) and 305(a) of the 1969 Act, when read together, indicate that it retained the distinction of the 1952 Federal Coal Mine Safety Act between gassy and nongassy mines. Under the prior Act, a nongassy mine, a classification based on the amount of methane detected in a mine, was subject to less stringent safety standards than those imposed on a gassy mine. See, e. g., Sections 209(d) (5), (6), (7), (9), (10), and (11) of the 1952 Act, 66 Stat. 703. Reliable concedes that all mines are initially regulated by the same standards under the 1969 Act, but argues that the debate in Congress on the question of retaining the distinction resulted in a compromise provision, namely Section 301(c), which they feel permits an operator to obtain a modification upon a factual showing that there is no potential for gas accumulation in the operator’s mine. Reliable reasons that once this is established, the mine satisfies the criteria for modification as enunciated in Section 301(c). They contend that Section 301(c) does not require a finding that the alternative method of measuring methane proposed by the operator must have the same degree of refined measurement as the statutory standard, but only that it achieve the same result. From this premise Reliable argues that since no methane exists in the Kanes Creek Mine, the alternative method will guarantee no less than the same protection since the result of using either device will be the same —a zero reading of methane. Reliable also refers to Section 305(a)(2) as an indication of Congressional intent to retain the gassy/nongassy distinction since this section extends to mines not previously classified as gassy and located above the watertable substantial grace periods within which to convert their present equipment to permissible status. Under the 1952 Act, it was primarily in regard to the requirement pertaining to the use of permissible electrical equipment that the distinction between gassy and nongassy mines was significant. In sum, based on a showing that the Kanes Creek Mine is not gassy or potentially gassy, Reliable asserts that Section 301(c) should countenance the use of a permissible flame safety lamp in lieu of a methane detector; and either of these devices in lieu of the methane monitor. The argument is flawed in every aspect, the most conspicuous being the contention that the 1969 Act retained the distinction between gassy and non-gassy mines. A review of the legislative history of the Act as contained in House Comm, on Ed. and Labor, Legislative History Federal Coal Mine Health and Safety Act, Comm.Print, 91st Cong., 2d Sess. (1970) [hereinafter cited as Leg. Hist.], convinces us that, aside from the extension periods provided for in the Act, Congress intended to eliminate any distinction between gassy and nongassy mines. While the debate in Congress relative to Section 305(a) focused on the requirement of maintaining permissible equipment, it clearly indicates a rejection of the classification as related to all safety standards since obviously the means prescribed to detect methane provides greater protection for the miners than the mere elimination of one source of igniting the gas once its presence is discovered in a working area. As in the case of prior coal mine legislation, the 1969 Act was precipitated by a tragic mining incident, an explosion which entombed seventy-eight coal miners in the Farmington No. 9 mine located in West Virginia. Leg.Hist. at 558. Immediately, Senate and House Subcommittees conducted extensive hearings to propose new legislation designed to raise the health and safety standards of the coal mining industry and one of the major areas of concern and controversy involved the elimination of the gassy/nongassy distinction. Aside from the dust standard, no issue received as much time or attention before the Senate Subcommittee. Leg.Hist. at 222. Significantly, of the bills introduced in the Senate Hearings on S. 355, S. 467, S. 1094, S. 1178, S. 1300, and S. 1907 Before a Subcommittee of the Comm, on Labor and Public Welfare, 91st Cong. 1st. Sess. 7-447 (1969), only Senator Cook’s proposal retained the distinction, id. at 283. The Committee, which during the deliberations had rejected an amendment submitted by Senator Cooper which would have retained the gassy/nongassy classification, Leg.Hist. at 35, explained in their report accompanying the composite bill S. 2917, that “[they] followed the recommendation of the Department of Interior that all mines be treated alike, in providing these new and additional safeguards to control methane and prevent ignitions.” Leg.Hist. at 27. During the Senate debate on the Committee Bill, Senator Cooper again introduced an amendment to retain the distinction. Leg.Hist. at 397. To accommodate the Senator’s views with respect to the financial imposition on the small mines, the substitute amendment was offered which provided mines previously classified as nongassy additional time within which to comply with the requirements of procuring permissible electrical equipment. Leg.Hist. at 474-77. The amendment recognized the economic impact on the small operator if required to convert to permissible equipment on the operative date of the Act, as well as the industrial reality that manufacturers were incapable of producing the requisite equipment within a relatively short period of time. It is manifestly clear that Section 305(a) was a compromise measure incident to the elimination of the prior classification, Leg.Hist. at 690, 742. During the debate Senator Cooper himself recognized that except for the extension periods the adoption of the substitute amendment would remove the gassy/nongassy classification, LegHist. at 481. The substitute amendment was passed and contained in the final Senate Bill, Leg.Hist. at 482, 530. The House likewise rejected the proposals of the small mine operators urging the retention of the distinction. The House Committee, after extensive hearings on the issue, Hearings on H.R. 4047, H.R. 4295, and H.R. 7976 Before the Comm, on Ed. and Labor, 91st Cong., 1st Sess. (1969), submitted a bill, H.R. 13950, which contained provisions similar to the Senate Bill regarding the elimination of the distinction, but did provide an extended grace period for compliance. While the Bill was on the House floor members of the House were advised that acceptance of the proposed Bill contemplated the elimination of the gassy/nongassy classification. Leg.Hist. at 690. The statement of the Managers of the House relative to the Bill accepted in conference explained that Section 305(a) which eliminated the distinction adopted the language of the Senate Bill, but accepted the time provisions of the House Bill. Leg.Hist. at 1045. In the Senate debate on the conference Bill, Senator Williams submitted a summary of the major provisions of the Bill in which he unequivocally stated that “[305(a)] eliminates the distinction be-tweén gassy mines and the so-called non-gassy mines.” Leg.Hist. at 1130. The history of the Act demonstrates beyond any doubt that Congress carefully evaluated the issue and determined that the gassy/nongassy distinction should be eliminated. Yet, Reliable contends that Section 301(c), which was not contained in the Senate Bill, but was placed in the House Bill and conference Bill, was a compromise provision which in effect affords the small mine operator the statutory means to perpetuate the distinction. Again the legislative history as well as the plain language of the Act refutes this contention. Under the statutory pattern the Secretary is directed to “develop, promulgate and revise, as may be appropriate, improved mandatory safety standards for the protection of life and the prevention of injuries in a coal mine * * This authority and the procedure incident thereto is delineated in Section-101 of the Act, 30 U.S.C. § 811. However, recognizing the urgent need for improved safety measures, interim mandatory safety standards applicable to all underground coal mines are prescribed by Sections 302 through 318 of Title III of the Act, 30 U.S.C. §§ 862-878. These provisions were designed to prescribe immediate mandatory standards without undergoing the ’lengthy administrative process for the promulgation of such standards by the Secretary under Section 101, Leg.Hist. at 50. The expeditious application of these standards to the entire coal mining industry necessarily presented a variety of problems, technical in nature, and it was necessary to give the Secretary a degree of flexibility to adjust the many detailed requirements of Title III to the particular problems of individual coal mines. This is the plain purpose of Section 301(c), but it was never intended by the Congress that modifications thereunder would be employed to dilute the statutory standards or resurrect the “gassy/nongassy” distinction. The safety standards embodied in Title III of the Act represent an attempt by the Congress to maximize the protection of the miners based on the current knowledge and technology of the industry. These standards, however, are not to be static, but constantly upgraded to provide increased safety and, when necessary, to meet changes in technology and mining conditions. Leg.Hist. at 1040. The methane testing devices challenged by Reliable were designed by the Act to provide reasonable interim protection for the miners and assuredly it would frustrate the legislative purpose to construe Section 301(c) in a manner which would permit these standards to be lowered. In St. Marys Sewer P. Co. v. Director of U. S. Bureau of Mines, 262 F.2d 378, 381 (3 Cir. 1959), which involved an interpretation of the 1952 Act, the Court stated: “The statute we are called upon to interpret is the out-growth of a long history of major disasters in coal mines. * * * It is so obvious as to be beyond dispute that in construing safety or remedial legislation narrow or limited construction is to be eschewed. Rather, in this field liberal construction in light of the prime purpose of the legislation is to be employed.” We find this observation equally appropriate to the case at hand and conclude that the Board’s interpretation of the Act carries out the plain intent of the Congress and should not be disturbed. The order of the Board will be affirmed. Affirmed. . We agree with the Board’s ruling on this point and do not feel the question necessitates further discussion. . As a result of petitioner’s purchase order for methane detectors the period of abatement was extended several times until .Tune 14, 1971. On that date, the Bureau of Mines issued a notice of abatement since the detectors had then been procured b.v Reliable. . The methane detector is a small portable instrument about the size of a transistor radio which measures the concentration of methane in the sampled air. . Section 303(d) (1) requires testing for methane “[with] means approved by the Secretary.” This provision was implemented by regulation, 30 C.F.R. 75.304r-3, which permitted the use of the flame safety lamp until December 31, 1970, on and after which date a methane detector was required; however, the flame safety lamp may still be used as a supplementary testing device. The express language of the statute rejecting the use of the flame safety lamp, coupled with protests in subcommittee hearings against the rejection of the lamp as an adequate testing device, indicates a Congressional determination that the flame safety lamp, when used exclusively, is inadequate for the purpose of testing for methane. See Hearings on H.R. 4047, H.R. 4295 and H.R. 7976, before a Subcommittee of the House Committee on Education and Labor, 91st Cong. 1st Sess. 138-39 (1969). . The methane monitor is similar to the methane detector, except that it tests on a continuous basis rather than at periodic intervals, and is designed to be attached fo electrically powered mine machinery. Section 303(i) requires that the monitor be set to automatically give a warning when the methane concentration reaches one percent, and to automaticaly de-ener-gize the machinery when the methane concentration reaches two percent. . As applied to electric face equipment, “permissible” means “the electric parts of which * * * are designed, constructed, and installed, in accordance with the specifications of the Secretary, to assure that such equipment will not cause a mine explosion or mine fire, and the other features of which are designed and constructed, in accordance with the specifications of the Secretary, to prevent, to the greatest extent possible, other accidents in the use of such equipment * * *.” Section 318 (i) of the Act, 30 U.S.C. § 878 (i). . Section 305(a) which will be discussed in detail infra, authorizes grace periods for certain mines to comply with the mandatory standards as related to permissible equipment. With respect to the Kanes Creek Mine, the required date for installation of the methane monitors will be March 30, 1974. . The mine was sealed ten days after the explosion and its cause remains unknown. . St Recognition of the interim standards as the minimal protective measures acceptable to Congress is evident in the language of Section 101(b), 30 U.S.C. § 811(b) : “No improved mandatory health or safety standard promulgated under this sub-chapter shall reduce the protection afforded miners below that provided by any mandatory health or safety standard.” Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. OHIO CASUALTY INS. CO. v. WELFARE FINANCE CO. No. 9915. Circuit Court of Appeals, Eighth Circuit. Dec. 20, 1934. James R. Claiborne, of St. Louis, Mo. (John W. Joynt and Bishop & Claiborne, all of St. Louis, Mo., on the brief), for appellant. George C. Wilson, of St. Louis, Mo. (Daniel G. Taylor, Jacob Chasnoff, Hugo Monnig, Jr., and James V. Frank, all of St. Louis, Mo., on the brief), for appellee. Before STONE, GARDNER, and VAN VALKENBURGH, Circuit Judges. Certiorari denied 55 S. Ct. 645, 79 L. Ed. —. STONE, Circuit Judge. This is an appeal from a recovery on a policy of liability insurance. The policy insured appellee “against loss by reason of liability imposed by law upon the assured for damages on account of bodily injuries * * * accidentally sustained * * * by any person or persons, other than employes of the assured. * * * ” During the life of the policy an action was brought against the assured by Florence Dauster for personal injuries arising from backing a truck, operated by a servant of the insured, out of a garage while she was standing on the running board without leaving sufficient clearance, and thereby throwing her to the ground. The negligence alleged was in this movement of the truck. In addition to a prayer of $25,000 for actual damages, punitive damages were sought in the same amount because “the aforesaid acts of defendants were unlawful, wrongful, wanton and done in a reckless disregard of plaintiff’s rights and safety.” There was a recovery of $5,500 actual damages and $10,-000 punitive damages. Appellant was promptly notified of the bringing of the above suit, and assumed entire defense thereof for appellee. Subsequent to the above recovery, appellant raised the question that it was not liable for more than $10,000 upon its policy and in no event liable for punitive damages. Subsequently the parties hereto ascertained that the above judgment could be settled for a total payment of $9,000 and costs. • This they did through an arrangement which embodied the payment of costs and $3,000 by appellant and the payment of $6,000 by appellee; it being further agreed that, if the above policy should be held to cover punitive damages, there should be recovery by appellee of $5,-000 (of the above $6,000 paid by it). To recover the above $5,000, this action was brought on the policy. Jury was waived, the court made findings of fact, and stated, as a conclusion of law, that the policy did insure appellee “against loss by reason of liability imposed by law for exemplary damages, under the facts shown in evidence.” The position of appellant and its argument is along two lines, as follows: First, that the policy insured only against “accidentally sustained” injuries, and that this did not include anything but compensatory damages; and, second, that, if the policy should be held to include punitive damages, it would be against public policy. The argument of the appellee is that the appellant is foreclosed here to raise the first point under the above settlement agreement between the parties and the facts, and that, as to the second point, the law is not as stated by appellant, for the reason that the liability of ap-pellee in the personal injury suit was purely one of respondeat superior in a matter where it had not authorized or known of the act causing the injury and had no knowledge of any propensities of its servant which would put it upon its guard against such actions. It seems to us appellee is wrong in its contention that appellant cannot raise the point of the meaning of the policy. This contention is based upon the assertion that the agreement between the parties at the time of settlement of the Dauster judgment was that the only defense to a suit upon the policy would be that to allow recovery thereunder for punitive damages would be against public policy. While there is testimony to the above effect by Mr. Chasnoff, who was a witness for plaintiff, the transcript includes an agreement in open court as to what the above settlement agreement was. That statement is that liability for the $5,000 should depend upon whether the policy covered punitive damages, and was in no wise limited to any particular reason (such as being against public policy) why it should not be so regarded. We must take this statement as embodying the agreement and particularly so as the finding of the court on that point is that recovery should be had herein “unless defendant herein could defeat such recovery on the defense that defendant’s policy did not cover or insure plaintiff against loss by reason of liability for exemplary damages in the Dauster suit” —the above quotation is from finding 4, and there is a similar expression in finding No. 6. The contention of appellant that exemplary damages are outside of the language and meaning of the policy is not well taken. The policy insured “against loss by reason of liability imposed by law upon the assured for damages on account of bodily injuries * * * accidentally sustained. * * * ” The basis of the Dauster action was negligence and nothing more than negligence. Obviously, negligence is covered in the term of the policy “accidentally sustained.” The assessment of punitive damages was a “liability imposed by law upon the assured” in connection with and because of the bodily injuries and the aggravated conduct of the servant in causing such injuries. Under the Missouri law, where injuries are negligently caused and the negligence is of such an aggravated form or attended by such circumstances as to be wanton and reckless in character, punitive damages are authorized. Reel v. Consolidated Inv. Co. (Mo. Sup.) 236 S. W. 43, 46; Parsons v. Mo. P. Ry. Co., 94 Mo. 286, 297, 299, 6 S. W. 464; Seibel v. Siemon, 72 Mo. 526, 531; Franz v. Hilterbrand, 45 Mo. 121,123; Kennedy v. North Mo. R. R. Co., 36 Mo. 351, 365; Leahy v. Davis, 121 Mo. 227, 232, 25 S. W. 941, 942. And see Hudson v. L. & N. R. Co., 30 F.(2d) 391, 392 (C. C. A. 5), and Westre v. C. M. & St. P. Ry. Co., 2 F.(2d) 227, 229 (C C. A. 8). As a basis for recovery of punitive damages, the Dauster petition alleged that the negligent acts were “unlawful, wrongful, wanton and done in a reckless disregard of plaintiff’s rights and safety.” The words of this quotation which are significant are “wanton and done in a reckless disregard of plaintiff’s rights and safety.” The real meaning of this statement is that the negligence amounted to recklessness, since that is the meaning of wanton when used in connection with negligence. Mayes v. Metropolitan Street Ry. Co., 121 Mo. App. 614, 621, 97 S. W. 612, 613; Cody v. Gremmler, 121 Mo. App. 359, 363, 364, 99 S. W. 46, 47; Cleveland, C. C. & St. L. Ry. Co. v. Tartt, 64 F. 823, 825, 826 (C. C. A. 7). Also see Strough v. Central R. R. Co., 209 F. 23, 26 (C. C. A. 3) ; Western Union Tel. Co. v. Catlett, 177 F. 71, 75 (C. C. A. 4); Hazle v. Southern Pacific Co., 173 F. 431, 432 (C. C. Ore.); Seago v. Realty Co., 185 Mo. App. 292, 299, 170 S. W. 372; Plummer v. Kansas City, 48 Mo. App. 482, 484. Since this policy clearly covers bodily damage through negligence and since these punitive damages are imposed because of the aggravated circumstances or form of this negligence, such punitive damages must be regarded as coming within the meaning of the policy. If punitive damages are within the meaning of the policy there arises the second point urged by appellant, to wit, that such a provision is unenforceable as againsl public policy. The public policy so invoked is thus expressed by appellant in its brief: “To allow one to insure oneself against the punishment intended in a verdict for punitive damages would be to defeat the pur-' pose of the law in such case made and provided. To enforce the contract sued on in this case and to protect the appellee against punishment would be the same as to permit a defendant in a criminal case, after having been tried and convicted and sentenced to confinement either in a jail or a penitentiary, to substitute another in his stead.” If this- provision in the policy must be construed as having the above effect, it should be held invalid. The policy is general in its terms, and on its face imports no protection from illegal acts. Appellant cites several cases supporting its position which are cases of willful injury perpetrated by the person protected by the insurance there involved. In the situation presented by such cases it is obvious that a grave question of validity would arige, since it might well be said that it would be against public policy to permit a person to protect himself in advance against the .consequences of intentional wrongdoing injurious to others. A different situation is present where the sole liability of the insured arises out of the relation of master and servant. If the master participates in, authorizes, or knows in advance that his servant will probably commit the unlawful injurious act, then the situation may be analogous to where the insured himself commits an intentional act with an intended injury and the same reasons for holding a protecting policy invalid as to such acts would exist. However, the court has here found that there was no evidence that the servant causing the injury here “had been instructed by plaintiff to act in a negligent, wanton, wrongful or unlawful manner towards Florence Dauster, nor that the alleged negligence or wrongful acts of Keith were necessary to the performance by Keith of his duties as the employee of plaintiff, nor that he had ever previously been guilty of such or similar actions.” In this situation where there was no direct or indirect-volition upon the part of the master in the commission of the act, no public policy is violated by protecting him from the unauthorized and unnatural act of his servant. 36 C. J. p. 1060; Messersmith v. American Fidelity Co., 187 App. Div. 35, 175 N. Y. S. 169; Taxicab Motor Co. v. Pacific Coast Casualty Co., 73 Wash. 631, 132 P. 393; Georgia Casualty Co. v. Alden Mills, 156 Miss. 853, 127 So. 555, 73 A. L. R. 408; Robinson v. U. S. Fidelity & Guaranty Co., 159 Miss. 14, 131 So. 541. We hold that the punitive damages under the facts here must be held to be within the meaning and protection of this policy; that there is no public policy, under the circumstances of this case, requiring such provision to be held invalid; therefore, that the judgment should be and is affirmed. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_casetyp1_7-3-5	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits". Walter N. TOBRINER et al., Appellants, v. John J. O’DONNELL, Jr., Appellee. No. 18317. United States Court of Appeals District of Columbia Circuit Argued May 14, 1964. Decided June 18, 1964. Mr. Richard W. Barton, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellants. Mr. Joseph B. Calandriello, Washington, D. C., with whom Mr. Joseph Sit-nick, Washington, D. C., was on the brief, for appellee. Before Bazelon, Chief Judge, Edger-ton, Senior Circuit Judge, and Washington, Circuit Judge. PER CURIAM: Appellee became disabled, not in performance of duty, after serving four years and nearly ten months as a member of the Metropolitan Police Department of the District of Columbia. Read in connection with § 4-521(1), D.C.Code (1961) § 4-526 provides that when a member of the Police or Fire Department “completes five years of police or fire service and is * * * disabled due to injury received or disease contracted other than in the performance of duty”, he shall be retired on an annuity of at least 40 per cent of his salary. Appellee contends that former military service should be counted and that he therefore has five years of “police or fire service.” This contention contradicts the plain meaning of the quoted words. Moreover, § 4-521(10) of the Code defines “police or fire service” as “honorable service in the Metropolitan Police Department, White House Police force, Fire Department of the District of Columbia, the United States Park Police force, and the United States Secret Service * * * ” The District Court erred in entering summary judgment for appellee. Summary judgment should be entered for appellants. Reversed. Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"? A. social security benefits (including SS disability payments) B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps) C. state or local economic regulation D. federal environmental regulation E. federal consumer protection regulation (includes pure food and drug, false advertising) F. rent control; excessive profits; government price controls G. federal regulation of transportation H. oil, gas, and mineral regulation by federal government I. federal regulation of utilities (includes telephone, radio, TV, power generation) J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government K. civil RICO suits L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above) M. admiralty - seamens wage disputes N. admiralty - maritime contracts, charter contracts O. admiralty other Answer:
sc_adminaction	071	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. DONOVAN, SECRETARY OF LABOR, et al. v. LONE STEER, INC. No. 82-1684. Argued November 29, 1983 Decided January 17, 1984 Alan I. Horowitz argued the cause for appellants. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Geller, Karen I. Ward, and Charles I. Hadden. Richard G. Peterson argued the cause for appellee. With him on the brief was James Patrick Barone. Briefs of amid curiae urging affirmance were filed for the National Restaurant Association by Robert W. Hartland; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calió. Robert E. Williams, Douglas S. McDowell, and Stephen C. Yohay filed a brief for the Equal Employment Advisory Council as amicus curiae. Justice Rehnquist delivered the opinion of the Court. Section 11(a) of the Fair Labor Standards Act of 1938 (FLSAor Act), 52Stat. 1066, 29 U. S. C. § 211(a), authorizes the Secretary of Labor to investigate and gather data regarding wages, hours, and other conditions of employment to determine whether an employer is violating the Act. Section 9 of the FLSA, 29 U. S. C. § 209, empowers the Secretary of Labor to subpoena witnesses and documentary evidence relating to any matter under investigation. Pursuant to those provisions, an official of the Department of Labor served an administrative subpoena duces tecum on an employee of appellee Lone Steer, Inc., a motel and restaurant located in Steele, N. D. The subpoena directed an officer or agent of appellee with personal knowledge of appellee’s records to appear at the Wage and Hour Division of the United States Department of Labor in Bismarck, N. D., and to produce certain payroll and sales records. In an action filed by appellee to challenge the validity of the subpoena, the District Court for the District of North Dakota held that, although the Secretary of Labor had complied with the applicable provisions of the PLSA in issuing the subpoena, enforcement of the subpoena would violate the Fourth Amendment of the United States Constitution because the Secretary had not previously obtained a judicial warrant. We noted probable jurisdiction of the Secretary’s appeal, 462 U. S. 1105 (1983), and we now reverse the judgment of the District Court. On January 6, 1982, A1 Godes, a Compliance Officer with the Wage and Hour Division of the Department of Labor, telephoned Susanne White, appellee’s manager, to inform her that he intended to begin an investigation of appellee the following morning and to request that she have available for inspection payroll records for all employees for the past two years. White telephoned Godes later that day to inform him that it would not be convenient to conduct the inspection on the following morning. After some preliminary skirmishing between the parties, during which appellee inquired about the scope and reason for the proposed investigation and appellants declined to provide specific information, Godes and Gerald Hill, Assistant Area Director from the Wage and Hour Division in Denver, arrived at appellee’s premises on February 2, 1982, for the purpose of conducting the investigation. After waiting for White, Godes served the administrative subpoena at issue here on one of appellee’s other employees. The subpoena was directed to any employee of appellee having custody and personal knowledge of the records specifically described therein, records which appellee was required by law to maintain. See 29 CFR §§ 516.2(a), 516.5(c) (1983). The subpoena directed the employee to appear with those records at the Wage and Hour Division of the Department of Labor in Bismarck, N. D. Appellee refused to comply with the subpoena and sought declaratory and injunctive relief in the District Court, claiming that the subpoena constituted an unlawful search and seizure in violation of the Fourth Amendment. Appellants counterclaimed for enforcement of the subpoena. The District Court concluded that the actions of appellants in issuing the administrative subpoena “unquestionably comport with the provisions of the Fair Labor Standards Act, as amended, 29 U. S. C. §201, et seq.” App. A to Juris. Statement 6a. Relying on our decision in Marshall v. Barlow’s, Inc., 436 U. S. 307 (1978), however, the District Court held that the applicable provisions of the FLSA violate the Fourth Amendment insofar as they authorize the Secretary of Labor to issue an administrative subpoena without previously having obtained a judicial warrant. In Barlow’s this Court declared unconstitutional the provisions of the Occupational Safety and Health Act of 1970 (OSHA) which authorized inspectors to enter an employer’s premises without a warrant to conduct inspections of work areas. The District Court rejected appellants’ arguments that Barlow’s is not dispositive of the issue here by stating: “It is reasonable to conclude that the exigencies of an entry upon commercial premises for the purpose of conducting a safety and health inspection designed to protect the personal well-being of employees supply more compelling bases for proceeding without a warrant than the circumstances presented here, where entry is sought for the purpose of determining compliance with wage and hour regulations. The reasoning of the Supreme Court in Barlow’s applies with equal — if not greater— force in the instant situation. “In sum, I hold that the Secretary of Labor may not proceed to enter upon the premises of Lone Steer, Inc., for the purpose of inspecting its records under Section 11 of the Fair Labor Standards Act without first having obtained a valid warrant.” App. A to Juris. Statement 8a. We think that the District Court undertook to decide a case not before it when it held that appellants may not “enter upon the premises” of appellee to inspect its records without first having obtained a warrant. The only “entry” upon appel-lee’s premises by appellants, so far as the record discloses, is that of Godes on February 2, 1982, when he and Gerald Hill entered the motel and restaurant to attempt to conduct an investigation. The stipulation of facts entered into by the parties, App. 11-17, and incorporated into the opinion of the District Court, App. A to Juris. Statement 2a-8a, describe what happened next: “They asked for Ms. White and were told she was not available but expected shortly. They were offered some coffee, and waited in the lobby area. After 20-30 minutes, when Ms. White had not appeared, Mr. Godes served an Administrative Subpoena Duces Tecum on employee Karen Arnold.” App. 15. An entry into the public lobby of a motel and restaurant for the purpose of serving an administrative subpoena is scarcely the sort of governmental act which is forbidden by the Fourth Amendment. The administrative subpoena itself did not authorize either entry or inspection of appellee’s premises; it merely directed appellee to produce relevant wage and hour records at appellants’ regional office some 25 miles away. The governmental actions which required antecedent administrative warrants in Marshall v. Barlow’s, Inc., supra, and Camara v. Municipal Court, 387 U. S. 523 (1967), are quite different from the governmental action in this case. In Barlow’s an OSHA inspector sought to conduct a search of nonpublic working areas of an electrical and plumbing installation business. In Camara a San Francisco housing inspector sought to inspect the premises of an apartment building in that city. See also See v. City of Seattle, 387 U. S. 541 (1967) (involving a similar search by a fire inspector of commercial premises). In each case, this Court held that an administrative warrant was required before such a search could be conducted without the consent of the owner of the premises. It is plain to us that those cases turned upon the effort of the government inspectors to make nonconsensual entries into areas not open to the public. As we have indicated, no such entry was made by appellants in this case. Thus the enforceability of the administrative subpoena duces tecum at issue here is governed, not by our decision in Barlow’s as the District Court concluded, but rather by our decision in Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186 (1946). In Oklahoma Press the Court rejected an employer’s claim that the subpoena power conferred upon the Secretary of Labor by the FLSA violates the Fourth Amendment. “The short answer to the Fourth Amendment objections is that the records in these cases present no question of actual search and seizure, but raise only the question whether orders of court for the production of specified records have been validly made; and no sufficient showing appears to justify setting them aside. No officer or other person has sought to enter petitioners’ premises against their will, to search them, or to seize or examine their books, records or papers without their assent, otherwise than pursuant to orders of court authorized by law and made after adequate opportunity to present objections . . . Id., at 195 (footnotes omitted). We cited Oklahoma Press with approval in See v. City of Seattle, supra, a companion case to Camara, and described the constitutional requirements for administrative subpoenas as follows: “It is now settled that, when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” See v. City of Seattle, supra, at 544 (footnote omitted). See also United States v. Morton Salt Co., 338 U. S. 632, 652-653 (1950). Thus although our cases make it clear that the Secretary of Labor may issue an administrative subpoena without a warrant, they nonetheless provide protection for a subpoenaed employer by allowing him to question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court. See v. City of Seattle, supra, at 544-545; Oklahoma Press, supra, at 208-209. Our holding here, which simply reaffirms our holding in Oklahoma Press, in no way leaves an employer defenseless against an unreasonably burdensome administrative subpoena requiring the production of documents. We hold only that the defenses available to an employer do not include the right to insist upon a judicial warrant as a condition precedent to a valid administrative subpoena. Appellee insists that “[t]he official inspection procedure used by the appellants reveal[s] that the use of the administrative subpoena is inextricably intertwined with the entry process,” Brief for Appellee 11, and states that it is appellants’ established policy to seek entry inspections by expressly relying on its inspection authority under §11 of the FLSA. Id., at 12. We need only observe that no non-consensual entry into protected premises was involved in this case. The judgment of the District Court is accordingly Reversed. Section 11(a), as set forth in 29 U. S. C. § 211(a), provides: “The Administrator or his designated representatives may investigate and gather data regarding the wages, hours, and other conditions and practices of employment in any industry subject to this chapter, and may enter and inspect such places and such records (and make such transcriptions thereof), question such employees, and investigate such facts, conditions, practices, or matters as he may deem necessary or appropriate to determine whether any person has violated any provision of this chapter, or which may aid in the enforcement of the provisions of this chapter. Except as provided in section 212 of this title and in subsection (b) of this section, the Administrator shall utilize the bureaus and divisions of the Department of Labor for all the investigations and inspections necessary under this section. Except as provided in section 212 of this title, the Administrator shall bring all actions under section 217 of this title to restrain violations of this chapter.” Although § 11(a) grants investigatory authority specifically to the Wage and Hour Administrator, pursuant to Reorg. Plan No. 6 of 1950, 3 CFR 1004 (1949-1953 comp.), 64 Stat. 1263, 5 U. S. C. App. p. 743, the functions of all officers of the Department of Labor, including the Wage and Hour Administrator, are transferred to the Secretary of Labor, who may in turn delegate those functions. Section 9 of the FLSA provides that for the purpose of any hearing or investigation under the provisions of the Act, § 9 of the Federal Trade Commission Act of 1914, 38 Stat. 722, as amended, 15 U. S. C. § 49, is made applicable “to the jurisdiction, powers, and duties of the Administrator, the Secretary of Labor and the industry committees.” Section 9 of the Federal Trade Commission Act of 1914, as set forth in 15 U. S. C. § 49, provides in pertinent part: “[T]he Commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any person, partnership, or corporation being investigated or proceeded against; and the Commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Any member of the Commission may sign subpoenas, and members and examiners of the Commission may administer oaths and affirmations, examine witnesses, and receive evidence. “Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the Commission may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence. “Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in ease of contumacy or refusal to obey a subpoena issued to any person, partnership, or corporation issue an order requiring such person, partnership, or corporation to appear before the Commission, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof.” Because the District Court’s order seemed only to bar “entry” onto ap-pellee’s premises, appellants filed a motion to alter or amend the judgment, arguing that the District Court’s order did “not address the relief sought by the Secretary.” App. A to Juris. Statement 15a. They sought to amend the District Court’s order so as to compel appellee to produce documents at appellants’ Bismarck office, emphasizing that compliance with such an order would not require an “entry” onto appellee’s premises. The District Court denied the motion without opinion. Id., at 13a-14a. 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_respondentstate	56	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. RABE v. WASHINGTON No. 71-247. Argued February 29, 1972 Decided March 20, 1972 William L. Dwyer argued the cause and filed briefs for petitioner. Curtis Ludwig argued the cause for respondent. With him on the brief was Herbert H. Davis. Briefs of amici curiae urging reversal were filed by Stanley Fleishman and Sam Rosenwein for the National Association of Theatre Owners, Inc., and by Louis Nizer and James Bouras for the Motion Picture Association of America, Inc. Constantine Regusis filed a brief for Morality in Media, Inc., as amicus curiae, urging affirmance. Per Curiam. Petitioner was the manager of the Park Y Drive-In Theatre in Richland, Washington, where the motion picture Carmen Baby was shown. The motion picture is a loose adaptation of Bizet’s opera Carmen, containing sexually frank scenes but no instances of sexual consummation are explicitly portrayed. After viewing the film from outside the theater fence on two successive evenings, a police officer obtained a warrant and arrested petitioner for violating Washington’s obscenity statute. Wash. Rev. Code § 9.68.010. Petitioner was later convicted and, on appeal, the Supreme Court of Washington affirmed. 79 Wash. 2d 254, 484 P. 2d 917 (1971). We granted certiorari. 404 U. S. 909. We reverse petitioner’s conviction. The statute under which petitioner was convicted, Wash. Rev. Code § 9.68.010, made criminal the knowing display of “obscene” motion pictures: “Every person who— “(1) Having knowledge of the contents thereof shall exhibit, sell, distribute, display for sale or distribution, or having knowledge of the contents thereof shall have in his possession with the intent to sell or distribute any book, magazine, pamphlet, comic book, newspaper, writing, photograph, motion picture film, phonograph record, tape or wire recording, picture, drawing, figure, image, or any object or thing which is obscene; or “(2) Having knowledge of the contents thereof shall cause to be performed or exhibited, or shall engage in the performance or exhibition of any show, act, play, dance or motion picture which is obscene; “Shall be guilty of a gross misdemeanor.” In affirming petitioner’s conviction, however, the Supreme Court of Washington did not hold that Carmen Baby was obscene under the test laid down by this Court’s prior decisions. E. g., Roth v. United States, 354 U. S. 476; Memoirs v. Massachusetts, 383 U. S. 413. Uncertain “whether the movie was offensive to the standards relating to sexual matters in that area and whether the movie advocated ideas or was of artistic or literary value/’ the court concluded that if it “were to apply the strict rules of Roth, the film 'Carmen Baby’ probably would pass the definitional obscenity test if the viewing audience consisted only of consenting adults.” 79 Wash. 2d, at 263, 484 P. 2d, at 922. Respondent read the opinion , of the Supreme Court of Washington more narrowly, but nonetheless implied that because the film had “redeeming social value” it was not, by itself, “obscene” under the Roth standard. Thé Supreme Court of Washington nonetheless upheld the conviction, reasoning that in “the context of its exhibition,” Carmen Baby was obscene. Ibid. To avoid the constitutional vice of vagueness, it is necessary, at a minimum, that a statute give fair notice that certain conduct is proscribed. The statute under which petitioner was prosecuted, however, made no mention that the “context” or location of the exhibition was an element of the offense somehow modifying the word “obscene.” Petitioner’s conviction was thus affirmed under a statute with a meaning quite different from the one he was charged with violating. “It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Cole v. Arkansas, 333 U. S. 196, 201. Petitioner’s conviction cannot, therefore, be allowed to stand. Gregory v. City of Chicago, 394 U. S. 111; Garner v. Louisiana, 368 U. S. 157; Cole v. Arkansas, supra. Under the interpretation given § 9.68.010 by the Supreme Court of Washington, petitioner is criminally punished for showing Carmen Baby in a drive-in but he may exhibit it to adults in an indoor theater with impunity. The statute, so construed, is impermissibly vague as applied to petitioner because of its failure to give him fair notice that criminal liability is dependent upon the place where the film is shown. What we said last Term in Cohen v. California, 403 U. S. 15, 19, answers respondent’s contention that the peculiar interest in prohibiting outdoor displays of sexually frank motion pictures justifies the application of this statute to petitioner: “Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places. ... No fair reading of the phrase ‘offensive conduct’ can be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created.” We need not decide the broad constitutional questions tendered to us by the parties. We hold simply that a State may not criminally punish the exhibition at a drive-in theater of a motion picture where the statute, used to support the conviction, has not given fair notice that the location of the exhibition was a vital element of the offense. The judgment of the Supreme Court of Washington is Reversed. Question: What state is associated with the respondent? 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_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. LADREY et al. v. UNITED STATES. No. 9069. United States Court of Appeals District of Columbia. Argued March 25, 1946. Decided May 20, 1946. Messrs. Joseph A. McMenamin and Robert I. Miller, both of Washington, D. C., for appellants. Mr. Sidney S. Sachs, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, and Cecil R. Heflin, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee. Before GRONER, Chief Justice, and WILBUR K. MILLER and PRETTY-MAN, Associate Justices. WILBUR K. MILLER, Justice. In October, 1943, the grand jury in the District Court of the United States for the District of Columbia indicted Dr. Henry M. Ladrey for criminal abortion alleged to have been performed on one Hazel Queenan. While that charge was pending against him, Dr. Ladrey and his wife, Eva W. Ladrey, were indicted jointly, in January, 1944, under Title 22, § 701, District of Columbia Code (1940) , it being charged that they had offered Hazel Queenan a bribe of $260 to refrain from testifying against Ladrey in the abortion case. Having been convicted of the attempted bribery, Dr. Ladrey and wife appeal. The appellants assign as error the following : (a) improper argument to the jury by the attorney for the United States, (b) admission of evidence concerning the performance of an abortion on Hazel Queenan, (c) admission of evidence concerning statements made by Eva W. Ladrey out of the presence of Henry M. Ladrey, (d) refusal to direct a verdict of not guilty as to Henry M. Ladrey at the close of the evidence for the United States, and at the conclusion of all the evidence. Obviously, the alleged errors summarized above as (c) and (d) have to do only with the case against Henry M. Ladrey. The appellant, Eva W. Ladrey, necessarily must rely upon alleged errors (a) and (b).. Hazel Queenan lived at 2310 Georgia Avenue, N. W., which is near the comer of Georgia Avenue and Trumbull Street in the District of Columbia. She testified that on the evening of January 6th, 1944, defendant Eva Ladrey came to her house and asked her if she was ready. Hazel Queenan replied that she was not as she had to attend a meeting that evening. Eva Ladrey then stated that she would return the following evening. In the meantime Hazel Queenan communicated with Sergeant Scott of the Metropolitan Police Department and on the evening of the 7th, when Eva Ladrey returned, police sergeants Scott and Crooke were concealed in the house where they could hear what was said in the front room. . Eva Ladrey appeared, pursuant to the appointment, and talked with Hazel Quee-nan in the front room within the hearing of the officers. Witnesses for the government said she told Hazel Dr. Ladrey had sent her, and that he wanted her to make arrangements to drop the charges which had been entered against him as a result of the abortion; that she'would pay her $100 then and, after she had left, they would give her another $100 plus the $60 which she had paid as the fee for the operation. Eva opened her pocketbook and displayed an envelope which she said contained $100. The two officers testified that they then entered the room and one asked Eva her name, to which she responded that she was Mrs. Wilkins. The officer said, “Now, Dr. Ladrey sent you up here, is that right, to make arrangements for this girl to drop the case?” She answered, “That is right.” The officer said, “Well, I heard you offer her $60 and expenses to go away if she would drop the case, is that right?” She answered, “Yes.” Thereupon the police placed Eva under arrest but, before taking her to the station, decided to look around in the vicinity to see if anybody was there who had brought Eva to the place. As they started to the nearby corner of 6th and Trumbull Streets, Eva said, “Well, I will tell you, I am Mrs. Ladrey. Dr. Ladrey is waiting at 6th and Trumbull for me.” They proceeded to that corner and found Dr. Ladrey standing near an automobile. One of the officers informed him of his wife’s statement that he had sent her there to offer the girl money to drop the charge, and asked if that were true. Ladrey replied, “Yes, I did bring her up here. I didn’t know what she was going to do and I didn’t know where she was going.” At the time of her arrest Eva’s purse contained an envelope in which were bills aggregating $100. At the trial Ladrey denied that he took his wife to a point near the Queenan home or that he had told the officers he had done so. On the contrary, he said that he had not seen his wife since early morning. He declared that he had never discussed the abortion case with Eva, but there is evidence that his wife knew Hazel Queenan had paid the doctor $60 for the operation. Other circumstances appeared which we think it unnecessary to summarize. Alleged error (a) — improper argument to the jury by the prosecuting attorney. We have carefully examined the transcript of that part of the argument of the assistant United States attorney of which complaint is made. The prosecutor did no more than to suggest to the jury that one who has theretofore borne a good reputation may commit a crime; that is, that proof of a good reputation is not a complete defense. We see no impropriety in that argument. Alleged error (b) — admission of evidence concerning the performance of an abortion on Hazel Queenan. The appellants urge that it was improper and prejudicial for the court to permit Hazel Queenan to testify concerning the illegal operation she said Ladrey performed on her. They say that this was evidence of an offense for which they were not on trial. In the case before us, which is the bribery charge, it was proper to admit evidence of the attempt to bribe, and, as well, evidence tending to show that Hazel Queenan was a material witness in the abortion case. Her testimony concerning the operation was limited to statements to the effect that she was the person upon whom the operation had been performed, and statements showing the nature of the operation. This was no more than the bare necessity of the case for the prosecution required. Consequently it was not error to receive it. As the errors assigned which concern the conviction of Eva Ladrey are without substance, the judgment against her is affirmed. Alleged error (c) — admission of evidence concerning statements made by Eva W. Ladrey out of the presence of Dr. Ladrey. The appellants contend that evidence concerning the statements made to Hazel Queenan by Eva Ladrey were not admissible against Henry M. Ladrey because they were not made in his presence. Those statements include the offer of the bribe to Hazel Queenan, the actual overt act. Consequently, if evidence of these statements was not admissible against Henry M. Ladrey, he was entitled to a directed verdict in his favor. The officers testified that Ladrey said he had let his wife out of his car at Georgia Avenue and Trumbull Street but that he did not know where she was going or what she was going to do. On the witness stand he denied having made that statement and said he had not seen Eva since early morning. In response to the question “Do you know how she happened to bring the officers around to 6th and Trumbull Streets when she was arrested ?” he said, “I don’t— if she brought them there.” Yet he later testified to having arranged to meet his wife that evening at approximately that spot. The jurors had a right to believe the statements of the officers as to what Lad-rey said to them, and they could well have regarded as incredible the declaration of a man who lived in Alexandria, Virginia, that he had let his wife out of the car in the darkness of a winter evening at Georgia Avenue and Trumbull Street, some miles from their residence, but that he did not know where she was going or what she was going to do. If the jurors were satisfied that false statements were made by Ladrey, they were justified in regarding those statements as in themselves tending to show guilt and the existence of a conspiracy. The evidence that Ladrey took his wife to a point near the scene of her attempt at bribery, that after her arrest he was found with his car parked at a nearby corner, that he made a statement so incredible as to be prima facie false, and conflicting statements as well, together with the fact that Ladrey had a strong motive to eliminate the Queenan woman as a witness, tended to show there was a secret combination or conspiracy between Ladrey and his wife, it being immaterial that the indictment did not specifically charge that they had conspired. Since facts and circumstances, other than the statements and acts of Eva Ladrey, were shown from which it could be concluded that a conspiracy in fact existed, the evidence of Hazel Queenan and the police sergeants concerning the declarations of Eva Ladrey was admissible against Henry M. Ladrey under the general rule. Alleged error (d) — refusal to direct a verdict of not guilty as to Henry M. Ladrey at the close of the evidence for the United States, and at the conclusion of all the evidence. By introducing evidence in his own behalf, Henry M. Ladrey waived the right to insist upon his motion for a directed verdict of not guilty at the end of the evidence for the United States. His contention that a verdict in his favor should have been directed at the conclusion of all the evidence must be denied. As we have pointed out in discussing alleged error (c), the proof was sufficient to justify the conclusion that a conspiracy existed. Eva Ladrey’s declarations and acts at the Queenan house, as well as her statements immediately after her arrest, were therefore competent against her husband. With those declarations and acts included in the evidence against Ladrey, there was enough proof to justify submitting the case against him to the jury, and to sustain the verdict of guilty which was found. Our Code obliterates the former distinction between principals and accessories before the facts. In the case of Maxey v. United States, this court dealt with a factual situation not unlike that present here. In that case the accessory was not personally present inciting the principal to or aiding in the performance of the criminal act. All that was necessary, we said in that case, was to prove facts and circumstances from which it might be inferred, with sufficient certainty, that the accessory abetted the performance of the criminal act in such a way as to constitute him a principal offender under the section of the Code just cited. One who procures, commands, advises, instigates or incites the commission of an offense, though not personally present at its commission, is, by the common law, an accessory before the fact. The Code provision makes all such persons principals. As we have seen, there was sufficient evidence to justify the jury’s conclusion that Ladrey was an accessory before the fact. He was therefore properly found guilty as a principal. Affirmed. 22 — 701 [6:134]. Whoever promises, offers, or gives, or causes or procures to be promised, offered, or given, any money or other thing of value, or makes or tenders any contract, undertaking, obligation, credit, or security for the payment of money, or for the delivery or conveyance of anything of value, to any executive, judicial, or other officer, or to any person acting in any official function, or to any juror or witness, with intent to influence the decision, action, verdict, or evidence of any such person on any question, matter, cause, or proceeding or with intent to influence him to commit or aid in committing, or to collude in or allow any fraud, or make any opportunity for the commission of any fraud, shall be fined not more than five hundred dollars, or be imprisoned not more than three years, or both. (Mar. 3, 1901, 31 Stat. 1330, ch. S54, § 861.)” Wilson v. United States, 162 U.'S. 613, 620,16 S.Ct. 895, 40 L.Ed. 1090. Motive becomes a strong circumstance for consideration where the defendant is held as an accessory. Shiflett v. Commonwealth, 151 Va. 556, 145 S.E. 336. St. Clair v. United States, 154 U.S. 134, 149, 14 S.Ct. 1002, 38 L.Ed. 936. American Fur Co. v. United States, 2 Pet. 358, 365, 7 L.Ed. 450. In this case the Supreme Court said: “Where two or more persons are associated together for the same illegal purpose, any act or declaration of one of the parties, in reference to the common object, and forming a part of the res gestee, may be given in evidence against the others.” See also St. Clair v. United States, supra; Wiborg v. United States, 163 U.S. 632, 16 S.Ct. 1127, 1197, 41 L.Ed. 289. Perovich v. United States, 205 U.S. 86, 27 S.Ct. 456, 51 L.Ed. 722; Murray v. United States, 53 App.D.C. 119, 126, 288 F. 1008. Title 22, § 105, District of Columbia Code (1940). “§ 22 — 105 [6:5]. In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes, whatever the punishment may be. (Mar. 3, 1901, 31 Stat. 1337, ch. 854, § 90S.)” 30 App.p.C. 63. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

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